summary
stringlengths 24
431
| text
stringlengths 1.19k
954k
| id
stringlengths 18
18
| lang
stringclasses 1
value |
|---|---|---|---|
According to Advocate General Pikamäe, the employer of lorry drivers employed in the international road transport sector is the transport undertaking which recruited those drivers for an indefinite period, exercises effective control over the drivers and actually bears the wage costs | 16 July 2020 ( *1 )(Reference for a preliminary ruling — Migrant workers — Social security — Legislation applicable — Regulation (EEC) No 1408/71 — Article 14(2)(a) — Concept of ‘person who is a member of the travelling personnel of an undertaking’ — Regulation (EC) No 883/2004 — Article 13(1)(b) — Concept of ‘employer’ — Long-distance lorry drivers normally employed in one or more Member States or States of the European Free Trade Association (EFTA) — Long‑distance lorry drivers who have entered into an employment contract with one undertaking but are in fact subject to the authority of another undertaking established in the Member State where those drivers reside — Determination of which undertaking is the ‘employer’)In Case C‑610/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), made by decision of 20 September 2018, received at the Court on 25 September 2018, in the proceedings AFMB Ltd and Others v Raad van bestuur van de Sociale verzekeringsbank, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice‑President, J.‑C. Bonichot, A. Arabadjiev, E. Regan (Rapporteur), P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, T. von Danwitz, C. Toader, C. Lycourgos and A. Kumin, Judges,Advocate General: P. Pikamäe,Registrar: M.-A. Gaudissart, Deputy Registrar,having regard to the written procedure and further to the hearing on 17 September 2019,after considering the observations submitted on behalf of:–AFMB Ltd and Others, by M. van Dam, advocaat,the Raad van bestuur van de Sociale verzekeringsbank, by H. van der Most and M. Wickenhagen, acting as Agents,the Netherlands Government, by M.K. Bulterman. P. Huurnink and J. Hoogveld, acting as Agents,the Czech Government, by M. Smolek, J. Vláčil and J. Pavliš, acting as Agents,the French Government, by A.-L. Desjonquères, A. Daly and R. Coesme, acting as Agents,the Cypriot Government, by N. Ioannou and D. Kalli, acting as Agents,the Hungarian Government, by M.Z. Fehér, M. Tátrai and V. Kiss, acting as Agents,the Austrian Government, by J. Schmoll and G. Hesse, acting as Agents,the United Kingdom Government, by Z. Lavery, acting as Agent, and by K. Apps, Barrister,the European Commission, by D. Martin and M. van Beek, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 26 November 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 14(1)(a) and (2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 100, p. 1) (‘Regulation No 1408/71’), and of Article 12 and Article 13(1)(b) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 149, p. 4) (‘Regulation No 883/2004’).2The request has been made in proceedings between AFMB Ltd, a company established in Cyprus, and international long-distance lorry drivers, on the one hand, and the Raad van bestuur van de Sociale verzekeringsbank (Board of Management of the Social Insurance Bank, Netherlands; ‘the Svb’), concerning decisions whereby the Svb declared that the social security legislation of the Netherlands was applicable to those long-distance lorry drivers. Legal context Regulation No 1408/71 3Title II of Regulation No 1408/71, entitled ‘Determination of the legislation applicable’, contains Articles 13 to 17 of that regulation.4Article 13 of Regulation No 1408/71, headed ‘General rules’, provides:‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.2. Subject to Articles 14 to 17:(a)a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;…’5Article 14 of that regulation provides:‘Article 13(2)(a) shall apply subject to the following exceptions and circumstances:(1)A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting.…(2)A person normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows:A person who is a member of the travelling or flying personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office or place of business in the territory of a Member State shall be subject to the legislation of the latter State, with the following restrictions:(ii)where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or place of business or branch or permanent representation in that territory;6Under Article 84a of Regulation No 1408/71, the institutions and the persons covered by that regulation are under a duty of mutual information and cooperation to ensure the correct implementation of that regulation. Regulation (EEC) No 574/72 7Article 12a of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 1) (‘Regulation No 574/72’), prescribes, inter alia, rules relating to the exchange of information between competent national authorities for the application of Article 14(2) of Regulation No 1408/71. Regulation No 883/2004 8Recitals 1, 4, 18a and 45 of Regulation No 883/2004 are worded as follows:‘(1)The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment.(4)It is necessary to respect the special characteristics of national social security legislation and to draw up only a system of coordination.(18a)The principle of single applicable legislation is of great importance and should be enhanced. …(45)Since the objective of the proposed action, namely the coordination measures to guarantee that the right to free movement of persons can be exercised effectively, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of that action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. …’9Article 2(1) of that regulation, that article being headed ‘Persons covered’, provides:‘This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors.’10Title II of that regulation, entitled ‘Determination of the legislation applicable’, comprises Articles 11 to 16 of that regulation.11Article 11 of that regulation, headed ‘General rules’, provides:‘1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.3. Subject to Articles 12 to 16:a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;12Article 12 of Regulation No 883/2004, headed ‘Special rules’, is worded as follows:‘1. A person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that he/she is not sent to replace another posted person.’2. A person who normally pursues an activity as a self-employed person in a Member State who goes to pursue a similar activity in another Member State shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such activity does not exceed 24 months.’13Article 13(1) of that regulation states :‘A person who normally pursues an activity as an employed person in two or more Member States shall be subject:to the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State; or(b)if he/she does not pursue a substantial part of his/her activity in the Member State of residence:(i)to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated if he/she is employed by one undertaking or employer; or14Title V of that regulation, entitled ‘Miscellaneous provisions’, contains, particularly in Article 76 thereof, that article being headed ‘Cooperation’, various provisions as to how the institutions and persons covered by that regulation may or must inform each other and cooperate with each other.15Title VI of that regulation, on transitional and final provisions, contains Articles 87 to 91 of that regulation.16Article 90(1) of Regulation No 883/2004, that article being headed ‘Repeal’, provides:[Regulation No 1408/71] shall be repealed from the date of application of this Regulation.However, Regulation [No 1408/71] shall remain in force and shall continue to have legal effect for the purposes of:(c)the Agreement on the European Economic Area [of 2 May 1992 (OJ 1994 L 1, p. 3)], the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons [signed in Luxembourg on 21 June 1999, and approved on behalf of the European Community by Decision 2002/309/EC/Euratom of the Council and of the Commission as regards the Agreement on Scientific and Technological Cooperation of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 6)] for as long as those agreements have not been modified in the light of this Regulation.’ Regulation (EC) No 987/2009 17Article 16 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (OJ 2009 L 284, p. 1), prescribes, as follows from its title, a procedure for implementing Article 13 of Regulation No 883/2004. The dispute in the main proceedings and the questions referred for a preliminary ruling 18AFMB, a company formed in Cyprus on 10 May 2011, entered into fleet management agreements with transport undertakings established in the Netherlands whereby AFMB undertook, in consideration of a commission, to take charge of the management of the heavy goods vehicles operated by those undertakings as part of their businesses, on behalf of and at the risk of those undertakings. AFMB also entered into employment contracts, for variable periods, within the period from 1 October 2011 to 26 May 2015, with international long-distance lorry drivers residing in the Netherlands. According to the terms of those contracts, AFMB was named as the employer of those workers and Cypriot employment law was declared to be applicable.19According to the findings of fact made by the referring court, before the conclusion of those employment contracts, the international long-distance lorry drivers concerned had never lived nor worked in Cyprus. When those contracts were performed, they continued to live in the Netherlands and worked, on behalf of those transport undertakings, in two or more Member States, and also, in the case of some of those long-distance lorry drivers, in one or more European Free Trade Association (EFTA) States. It is also stated in the order for reference that, in the abovementioned period, those long-distance lorry drivers did not carry out a substantial part of their activities in the Netherlands. Further, some of those drivers had previously been employees of those undertakings.20AFMB made an application, under Article 16 of Regulation No 987/2009, to the Svb for confirmation that, during the above period, the international long-distance lorry drivers with whom it had concluded those employment contracts were not subject, under Article 13 of Regulation No 883/2004, to the social security legislation of the Netherlands. AFMB stated in that regard, inter alia, that the competent Cypriot institution could not issue A 1 Certificates for those long‑distance lorry drivers until the Svb had confirmed that the Netherlands social security legislation was not applicable to them.21By decisions made in October 2013, the Svb declared that the Netherlands social security legislation was applicable to the long-distance lorry drivers and issued A 1 Certificates to that effect.22Those decisions were confirmed, after a complaint lodged by AFMB, by decisions of the Svb adopted in July 2014.23AFMB and a number of the long-distance lorry drivers with whom it had concluded employment contracts brought an action before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) challenging the latter decisions of the Svb. By judgment of 25 March 2016, that court dismissed that action.24AFMB and a number of those long-distance lorry drivers brought an appeal before the referring court.25Following the bringing of that action, the dialogue and conciliation procedure which had been initiated, in relation to the A 1 Certificates issued by the Svb, by the competent Cypriot institution pursuant to Decision No A1 of the Administrative Commission for the coordination of social security systems of12 June 2009 concerning the establishment of a dialogue and conciliation procedure concerning the validity of documents, the determination of the applicable legislation and the provision of benefits under Regulation No 883/2004 (OJ 2010 C 106, p. 1), was suspended.26In the main proceedings, first, the referring court is uncertain whether the long‑distance lorry drivers in those proceedings are to be regarded as ‘members of the personnel’ of AFMB or of the transport undertakings, for the purposes of Article 14(2)(a) of Regulation No 1408/71, and as having the former or the latter as their ‘employer’, for the purposes of Article 13(1)(b) of Regulation No 883/2004. That court accordingly wishes to determine which undertaking or undertakings ought to be recognised as the employer of those drivers for the purposes of the application of those provisions and what criteria should be applied for that purpose. That issue is of crucial importance for the dispute in the main proceedings, in that it will make it possible to identify the national social security legislation that is applicable to those drivers.27In that regard, the referring court observes that Regulations No 1408/71 and No 883/2004 do not define the concept of an ‘employer’ and do not refer to national legislation for that purpose.28That court considers, however, that numerous factors point in the direction of EU law being interpreted as meaning that, in a case such as that in the main proceedings, the transport undertakings ought to be recognised as the employer of the long-distance lorry drivers, but it observes that such an interpretation also creates difficulties in terms of the identification of the national social security legislation that is applicable.29Second, if the Court were to consider that an undertaking that has concluded employment contracts with the long-distance lorry drivers, such as AFMB, ought to be regarded as their employer, the referring court is uncertain as to the possible application to that particular situation, by analogy, of the conditions that are specific to the rules on posting of workers laid down by Regulations No 1408/71 and No 883/2004.30Third, in the scenario envisaged in the preceding paragraph and in the event that the answer to the second question referred is in the negative, the referring court is uncertain whether circumstances such as those at issue in the main proceedings constitute an abuse of law. In that regard, the referring court observes that, in this case, even though EU law enshrines the principle of freedom of establishment, the main objective pursued by both the transport undertakings in the main proceedings and AFMB was plainly to circumvent the Netherlands legislation and regulations by artificially creating conditions where an advantage could be gained from EU law. If such an abuse were to be identified, the referring court is uncertain what action should be taken in response for the purposes of resolving the dispute in the main proceedings.31In those circumstances, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:Must Article 14(2)(a) of [Regulation No 1408/71] be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a driver of a heavy goods vehicle employed in international road transport is to be regarded as being a member of the travelling personnel of:the transport undertaking which has recruited the person concerned, to which the person concerned is in fact fully available for an indefinite period, which exercises actual authority over the person concerned and which actually bears the wage costs; orthe undertaking which has formally concluded an employment contract with the heavy goods vehicle driver and which, by agreement with the transport undertaking referred to under (i), paid the person concerned a salary and paid contributions in respect thereof in the Member State where that company has its registered office and not in the Member State where the transport undertaking referred to in (i) has its registered office; or(iii)both the undertaking referred to in (i) and the undertaking referred to in (ii) ?Must Article 13(1)(b) of [Regulation No 883/2004] be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, the employer of a heavy goods vehicle driver employed in international road transport is considered to be:the undertaking which has formally concluded an employment contract with the driver and which, by agreement with the transport undertaking referred to under (i), paid the worker a salary and paid contributions in respect thereof in the Member State where that undertaking has its registered office and not in the Member State where the transport undertaking referred to in (i) has its registered office;In the event that, in circumstances such as those at issue in the main proceedings, the employer is regarded as being the undertaking referred to in Question 1(a)(ii) and in Question 1(b)(ii):Do the specific conditions under which employers, such as temporary employment agencies and other intermediaries, can invoke the exceptions to the State-of-employment principle set out in Article 14(1)(a) of [Regulation No 1408/71] and in Article 12 of [Regulation No 883/2004] also apply by analogy, wholly or in part, to the dispute in the main proceedings for the purposes of Article 14(2)(a) of [Regulation No 1408/71] and of Article 13(1)(b) of [Regulation No 883/2004]?(3)In the event that, in circumstances such as those of the cases in the main proceedings, the employer is regarded as being the company referred to in Question 1(a)(ii) and in Question 1(b)(ii), and Question 2 is answered in the negative:Do the facts and circumstances [of the dispute in the main proceedings] constitute a situation that is to be interpreted as an abuse of EU law and/or an abuse of EFTA law? If so, what is the consequence thereof?’ Consideration of the questions referred Preliminary observations 32The Czech, Cypriot, Austrian and United Kingdom Governments question the applicability ratione temporis of Regulation No 1408/71 to the dispute in the main proceedings on the ground that the periods of activity concerned are all subsequent to the date when that regulation was replaced by Regulation No 883/2004. They consider that the Court should, consequently, answer the questions referred solely in so far as they relate to Regulation No 883/2004.33In that regard, it must be observed that, as is apparent from paragraph 18 of the present judgment, the periods during which the long-distance lorry drivers in the main proceedings were bound to AFMB by employment contracts are all subsequent to 1 May 2010, the date when Regulation No 1408/71 was repealed and replaced by Regulation No 883/2004.34It follows that the latter regulation is applicable to the situation of the long‑distance lorry drivers in the main proceedings who were employed as such in two or more Member States.35As regards the long-distance lorry drivers in the main proceedings who were employed as such both in one or more Member States and in one or more EFTA States, it must be recalled that, in accordance with Article 90 of Regulation No 883/2004, Regulation No 1408/71 remained in force and its legal effects were preserved, for the purposes of, inter alia, the Agreement on the European Economic Area and the Agreement between the European Union and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, for as long as those agreements were not modified to reflect Regulation No 883/2004. However, the latter regulation became applicable, following such modifications, only from 1 April 2012 to the Swiss Confederation and from 1 June 2012 to Iceland, Liechtenstein and Norway.36It follows that Regulation No 1408/71 was still in force, in those EFTA States, during part of the periods at issue in the main proceedings and that, if it were the case, which it is for the referring court to determine, that long-distance lorry drivers worked in the territory of one of those States during periods prior to one of those dates, that regulation would be applicable to that extent.37That being so, it is necessary, in order to provide the referring court with an answer that is helpful in all respects, to take into account, in the context of the present case, both Regulation No 1408/71 and Regulation No 883/2004. The first question 38By its first question, the referring court seeks, in essence, to ascertain whether Article 14(2)(a) of Regulation No 1408/71 and Article 13(1)(b) of Regulation No 883/2004 must be interpreted as meaning that the employer of an international long-distance lorry driver, for the purposes of those provisions, is the transport undertaking which recruited that driver, where that driver is in fact entirely at the disposal of that undertaking, which exercises actual authority over that driver and which bears, in reality, the relevant wage costs, or the undertaking with which that long-distance lorry driver has concluded an employment contract and which pays the driver his or her wages pursuant to an agreement concluded with the transport undertaking.39It is apparent from the order for reference that that question arises in the context of a dispute between the parties in the main proceedings concerning the national social security legislation that is applicable to international long-distance lorry drivers, who are parties to an employment contract with AFMB but who work on behalf of the transport undertakings concerned in the main proceedings. The Svb considers that only those transport undertakings, which are established in the Netherlands, ought to be categorised as the employers of those drivers, with the result that the Netherlands legislation is applicable to them, whereas AFMB and those long-distance lorry drivers consider that AFMB ought to be regarded as the employer and that, since its registered office is in Cyprus, Cypriot legislation is applicable to them.40In that regard, it must be recalled that the provisions of Title II of Regulation No 1408/71, one of which is Article 14(2)(a) of that regulation, and the provisions of Title II of Regulation No 883/2004, one of which is Article 13(1)(b) of that regulation, constitute uniform and comprehensive systems of conflict of law rules. Those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons falling within the scope of one of those regulations are not left without social security protection because there is no legislation which is applicable to them (see, to that effect, judgments of 1 February 2017, Tolley, C‑430/15, EU:C:2017:74, paragraph 58, and of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 41).41Accordingly, provided that a person falls within the scope ratione personae of Regulation No 1408/71 or of Regulation No 883/2004, as that scope is defined in Article 2 of each of those regulations, the single legislation rule, laid down in Article 13(1) of Regulation No 1408/71 and Article 11(1) of Regulation No 883/2004 respectively, is, in principle, applicable, and the national legislation applicable is to be determined in accordance with the provisions of Title II of one of those regulations (see, to that effect, judgments of 1 February 2017, Tolley, C‑430/15, EU:C:2017:74, paragraph 59, and of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 42).42To that end, Article 13(2)(a) of Regulation No 1408/71 and Article 11(3)(a) of Regulation No 883/2004 lay down the general rule that a person who pursues an activity as an employed person in the territory of a Member State is subject to the legislation of that State.43That general rule is, however, stated, in the former provision, to be ‘subject to Articles 14 to 17’ of Regulation No 1408/71, and, in the latter provision, ‘subject to Articles 12 to 16’ of Regulation No 883/2004. In certain specific situations, the unrestricted application of that principle might in fact create, rather than prevent, administrative complications for workers as well as for employers and social security authorities, which could impede the freedom of movement of the persons covered by those regulations (see, to that effect, judgments of 13 September 2017, X, C‑570/15, EU:C:2017:674, paragraph 16, and of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 31).44One of those specific situations is that which is the subject of Article 14(2) of Regulation No 1408/71 and Article 13(1) of Regulation No 883/2004 respectively, namely the situation of a person who normally pursues an activity as an employed person in two or more Member States.45In particular, in accordance with Article 14(2)(a) of Regulation No 1408/71, a person who is a member of the travelling personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for goods by road and which has its registered office in the territory of a Member State is subject to the legislation of the latter State unless, as is the case for the drivers concerned in the main proceedings to whom that regulation is applicable, that person is employed principally in the territory of the Member State where he or she resides, in which case that person would be subject to the legislation of the Member State where he or she resides.46As regards Article 13(1) of Regulation No 883/2004, Article 13(1)(b)(i) provides that a person who normally pursues an activity as an employed person in two or more Member States and who does not pursue a substantial part of that activity in the Member State where he or she resides is subject to the legislation of the Member State in which the undertaking or the employer has its registered office or place of business, if the person is employed by one undertaking or one employer. The Court has stated, in that regard, that a person can fall within the scope of Article 13 only on the condition that he or she habitually carries out significant activities in the territory of two or more Member States (see, to that effect, judgment of 13 September 2017, X, C‑570/15, EU:C:2017:674, paragraphs 18 and 19). As is apparent from the documents available to the Court, that condition is satisfied in the case of the long-distance lorry drivers in the main proceedings.47It is apparent from the information provided by the referring court that the transport undertakings concerned in the main proceeding all have their registered offices in the Netherlands. As regards AFMB, the referring court states that its registered office must be regarded as being located in Cyprus, and it is appropriate to proceed on that assumption.48In those circumstances, and as observed, in essence, by the referring court, the interpretation of the concept of a ‘person who is a member of the personnel … of an undertaking’, within the meaning of Article 14(2)(a) of Regulation No 1408/71, and of the concept of an ‘employer’ within the meaning of Article 13(1)(b)(i) of Regulation No 883/2004, a concept which must be treated as equivalent, in this context, to that of an ‘undertaking’, also used in the same provision of Regulation No 883/2004, is of crucial importance for the purpose of determining the national social security legislation that is applicable to the long‑distance lorry drivers in the main proceedings.49In that regard, it must be observed that those regulations do not, in order to determine the meaning of those concepts, make any reference to national legislation or practice.50It follows from the requirements of the uniform application of EU law and of the principle of equal treatment that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must be given an autonomous and uniform interpretation throughout the European Union, which interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation in question (judgment of 19 March 2020, Compañía de Tranvías de La Coruña, C‑45/19, EU:C:2020:224, paragraph 14 and the case-law cited).51Since the concepts referred to in paragraph 48 of the present judgment play a crucial role in the identification of the applicable national social security legislation in accordance with the conflict of law rules laid down, respectively, in Article 14 of Regulation No 1408/71 and in Article 13 of Regulation No 883/2004, an autonomous interpretation of those concepts becomes all the more essential, as the Advocate General stated, in essence, in point 39 of his Opinion, given the single legislation rule mentioned in paragraph 41 of the present judgment, which means that the legislation of one single Member State must be designated as being applicable.52As regards, first, the terms used, account must be taken, in accordance with the Court’s settled case-law, of their usual meaning in everyday language, in the absence of any definition, in Regulation No 1408/71 or Regulation No 883/2004, of the relevant concepts of a ‘person who is a member of the personnel … of an undertaking’, within the meaning of Article 14(2)(a) of Regulation No 1408/71, and of an ‘employer’, within the meaning of Article 13(1)(b)(i) of Regulation No 883/2004 (see, by analogy, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case‑law cited).53With respect to the usual meaning of those terms, it must be observed that, as a general rule, the relationship between an ‘employer’ and the ‘personnel’ employed implies the existence of a hierarchical relationship.54Next, as regards the context surrounding the concepts mentioned in paragraph 48 of the present judgment, it must, first, be recalled that the application of the system of conflict of law rules established by the regulations in which those concepts are used depends solely on the objective situation of the worker concerned (see, to that effect, judgment of 4 June 2015, Fischer‑Lintjens, C‑543/13, EU:C:2015:359, paragraph 38 and the case-law cited).55In addition, in interpreting the social security regulations that preceded Regulation No 883/2004 and, in particular, the provisions relating to conflict of law rules concerning posting of workers, contained in Article 13(a) of Regulation No 3 of the Council of the EEC of 25 September 1958 on the social security of migrant workers (JO 195830, p. 561), later in Article 14(1)(a) of Regulation No 1408/71, the Court has held, in essence, that the undertaking to which a worker is ‘normally attached’, for the purposes of those provisions, is the undertaking under the authority of which he or she is placed, such a condition to be deduced from all the circumstances of the employment concerned (see, to that effect, judgments of 5 December 1967, van der Vecht, 19/67, EU:C:1967:49, p. 354, and of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 24).56The Court has held, in particular, that an undertaking that has posted an employed worker to the territory of another Member State in order to carry out work there at the premises of another entity must be considered to be the sole employer of that worker, having particular regard to the continuity, for the entire duration of the posting, of the hierarchical relationship between that worker and that employer, so that that work was to be deemed to have been carried out for that undertaking, within the meaning of Article 13(a) of Regulation No 3. The Court stated that that hierarchical relationship resulted from, inter alia, the fact that the undertaking in question paid the worker’s wages and could dismiss him or her on the ground of faults he or she might have committed in the performance of the work at the premises of the entity making use of the work (see, to that effect, judgment of 17 December 1970, Manpower, 35/70, EU:C:1970:120, paragraphs 17, 18 and 20).57The Court has also stated that, in order to assess whether a worker falls within the scope of concept of a ‘person who normally pursues an activity as an employed person in the territory of two or more Member States’, within the meaning of Article 14(2) of Regulation No 1408/71, a concept that now appears in Article 13(1) of Regulation No 883/2004, account must be taken of any possible divergence between, on the one hand, the information provided by the employment contracts at issue and, on the other, the way in which the obligations under those contracts were performed in practice (see, to that effect, judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 41).58In particular, the Court has stated that the institution concerned may, where appropriate, take account not only of the wording of contractual documents, but also of factors such as the way in which employment contracts between the employer and the worker concerned had previously been performed in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the undertaking concerned, in so far as those factors may throw light on the actual nature of the work in question (judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 45).59The Court added that, if it is apparent from relevant factors other than contractual documents that an employed person’s situation in fact differs from that described in such documents, the obligation to apply Regulation No 1408/71 correctly means that it is incumbent on the institution concerned, whatever the wording of those contractual documents, to base its findings on the employed person’s actual situation (see, to that effect, judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 46).60Having regard to the matters mentioned in paragraphs 52 to 59 of the present judgment, it is necessary, with respect to the concepts mentioned in paragraph 48 of this judgment, to take account of the objective situation of the employed person concerned and all the circumstances of his or her employment.61Against that background, while the conclusion of an employment contract between the employed person and an undertaking may be an indication that there is a hierarchical relationship between the former and the latter, that circumstance alone cannot permit a definitive conclusion that there exists such a relationship. It remains necessary, in order to arrive at such a conclusion, to have regard not only to the information formally contained in the employment contract but also to how the obligations under the contract incumbent on both the worker and the undertaking in question are performed in practice. Accordingly, whatever the wording of the contractual documents, it is necessary to identify the entity which actually exercises authority over the worker, which bears, in reality, the relevant wage costs, and which has the actual power to dismiss that worker.62It should be stated that the interpretation set out in paragraphs 60 and 61 of the present judgment is supported by the objectives pursued by the provisions mentioned in paragraph 48 of this judgment and, more generally, by Regulations No 1408/71 and No 883/2004 taken as a whole.63In that regard, it must be recalled that the objective of Regulation No 1408/71 is to ensure freedom of movement for employed and self-employed persons within the European Union, while respecting the special characteristics of national social security legislation (see, to that effect, judgment of 9 March 2006, Piatkowski, C‑493/04, EU:C:2006:167, paragraph 19). Likewise, as is clear from, inter alia, recitals 1 and 45 of Regulation No 883/2004, the aim of that regulation is to coordinate the national social security systems of the Member States in order to guarantee that the right to the free movement of persons can be exercised effectively and, thereby, to contribute towards improving the standard of living and conditions of employment of persons who move within the European Union (judgment of 13 July 2017, Szoja, C‑89/16, EU:C:2017:538, paragraph 34). That regulation modernised and simplified the rules contained in Regulation No 1408/71, while retaining the same objective as the latter regulation (judgment of 6 June 2019, V, C‑33/18, EU:C:2019:470, paragraph 41 and the case-law cited).64As is apparent from paragraphs 42 to 44 of the present judgment, Article 14(2) of Regulation No 1408/71 contributes to that objective in that it lays down rules which derogate from the rule of the Member State of employment laid down in Article 13(2)(a) of that regulation precisely in order to avoid the complications which, otherwise, might arise if the latter rule were to be applied to situations involving the pursuit of activities in two or more Member States. The same can be said of Article 13(1) of Regulation No 883/2004, which simplified the rules set out in Article 14(2) of Regulation No 1408/71 with the aim, like the latter provision, of avoiding such complications.65From that perspective, the aim of the derogating rules laid down in the provisions mentioned in paragraph 48 of the present judgment is to ensure that, in accordance with the rule of a single applicable legislation referred to in paragraph 41 of this judgment, employed persons working in two or more Member States are subject to the legislation of only one single Member State, by establishing for that purpose criteria of attachment which take into account the objective situation of those persons in order to facilitate their freedom of movement.66However, if an interpretation of the concepts employed in those provisions were not to take into account the objective situation of the employed person but were to be based solely on formal considerations, such as the conclusion of an employment contract, that would amount to allowing undertakings to transfer the place which is to be regarded as relevant to the determination of which national social security legislation is applicable, when such a transfer does not, in reality, contribute to the objective of guaranteeing that workers can genuinely exercise their right to freedom of movement.67Moreover, if undertakings were allowed to transfer the place which is to be regarded as relevant to the determination of which national social security legislation is applicable, in the way set out in the preceding paragraph, that would disregard the fact that, as is apparent from the case-law cited in paragraph 54 of the present judgment, the conflict of law rules laid down, in particular, in Article 14(2) of Regulation No 1408/71 and Article 13(1) of Regulation No 883/2004 depend not on the free choice of the employed person, employers or competent national authorities, but on the objective situation of that employed person.68Admittedly, the system introduced by each of those regulations is solely a system for the coordination of the social security legislation of the Member States and not for the harmonisation of such legislation. It is inherent in such a system that differences may remain between the social security rules of the Member States, not least with regard to the level of social contributions to be paid in respect of a given activity (see, to that effect, judgments of 15 January 1986, Pinna, 41/84, EU:C:1986:1, paragraph 20, and of 9 March 2006, Piatkowski, C‑493/04, EU:C:2006:167, paragraph 20 and the case-law cited).69However, the objective of those regulations, as recalled in paragraph 63 of the present judgment, might be undermined if the interpretation adopted of the concepts mentioned in paragraph 48 of this judgment were to make it easier for employers to be able to resort to purely artificial arrangements in order to exploit the EU legislation with the sole aim of obtaining an advantage from the differences that exist between the national rules. In particular, such exploitation of that legislation would be likely to have a ‘race to the bottom’ effect on the social security systems of the Member States and perhaps, ultimately, reduce the level of protection offered by those systems.70Last, the foregoing considerations cannot be called into question by the argument that those concepts should be based exclusively on the criterion of the existence of an employment contract, on the ground that that criterion, being readily verifiable, might have advantages in terms of legal certainty, in that it would be possible to ensure that the applicable social security legislation will be more predictable.71As rightly submitted by the Netherlands Government, an interpretation of those concepts which relies on criteria that are designed to determine the real situation of the worker concerned serves precisely to ensure due regard to the principle of legal certainty.72Further, both Regulations No 1408/71 and No 574/72, on the one hand, and Regulations No 883/2004 and No 987/2009, on the other, lay down mechanisms for information and cooperation that are intended to ensure the correct application of the provisions mentioned in paragraph 48 of the present judgment.73Thus, first, in addition to the fact that Article 84a of Regulation No 1408/71 imposes on the institutions and persons covered by that provision a mutual obligation of information and cooperation, Article 12a of Regulation No 574/72 lays down, in particular, rules on the exchange of information for the purposes of the application of Article 14(2) of Regulation No 1408/71.74Second, the rules governing what the institutions and persons covered by that regulation may or must do in terms of the mutual information and cooperation provided for by Regulation No 883/2004, as set out in Article 76 of that regulation, as well as the procedure for the application of Article 13 of that regulation, laid down in Article 16 of Regulation No 987/2009, are intended to enable the institutions and persons concerned to have the necessary information for the purposes of ensuring the correct application of the concept of an ‘employer’ in the determination of the legislation applicable under Article 13(1)(b) of Regulation No 883/2004.75It follows from the foregoing that, for the purposes of both Article 14(2)(a) of Regulation No 1408/71 and Article 13(1)(b)(i) of Regulation No 883/2004, an international long-distance lorry driver must be regarded as being employed, not by the undertaking with which he or she has formally concluded an employment contract, but by the transport undertaking that has actual authority over him or her, that does, in reality, bear the costs of paying his or her wages, and that has the actual power to dismiss him or her.76In this case, it is clear from the information provided by the referring court that the long-distance lorry drivers concerned were bound, during the periods at issue in the main proceedings, to AFMB by employment contracts in which AFMB was named as the employer of those workers and Cypriot employment law was declared to be applicable.77However, it is clear from the request for a preliminary ruling that those long‑distance lorry drivers, who always maintained their place of residence in the Netherlands throughout those periods, had, before the conclusion of the employment contracts with AFMB, been chosen by the transport undertakings themselves and that they worked, after the conclusion of those contracts, on behalf of and at the risk of those transport undertakings. Further, while the fleet management agreements concluded between those transport undertakings and AFMB conferred on the latter the management of the heavy goods vehicles and while AFMB was responsible for the management of wages, it is apparent from the information provided by the referring court that, in reality, the actual cost of those wages was borne, via the commission paid to AFMB, by the transport undertakings concerned in the main proceedings. Moreover, the decision of a transport undertaking that it no longer required the services of a long-distance lorry driver entailed, as a general rule, the immediate dismissal of that driver by AFMB, so that, subject to verification by the referring court, the transport undertaking held the actual power of dismissal.78Last, it must be added that a number of the long-distance lorry drivers in the main proceedings were, prior to conclusion of the employment contracts with AFMB, previously employed by the transport undertakings and that, according to the findings made by the referring court, ‘little or nothing changed in the daily routine after the intervention of AFMB in the relationship between the [long-distance lorry drivers] and [those undertakings]’, those drivers continuing, in fact, to be entirely at the disposal of and subject to the authority of those undertakings.79It follows from the foregoing indications that, whatever the EU legislation that is applicable to the long-distance lorry drivers in the main proceedings, whether Regulation No 1408/71 or Regulation No 883/2004, those drivers seem to have been, during the periods at issue, members of the personnel of the transport undertakings and to have had those undertakings as their employers, within the meaning of Article 14(2)(a) of the former regulation and Article 13(1)(b) of the latter regulation, respectively, with the result that the social security legislation that is applicable to them seems to be the legislation of the Netherlands, which, however, it is for the referring court to determine.80In the light of all the foregoing, the answer to the first question is that Article 14(2)(a) of Regulation No 1408/71 and Article 13(1)(b)(i) of Regulation No 883/2004 must be interpreted as meaning that the employer of an international long-distance lorry driver, for the purposes of those provisions, is the undertaking which has actual authority over that long-distance lorry driver, which bears, in reality, the costs of paying his or her wages, and which has the actual power to dismiss him or her, and not the undertaking with which that long-distance lorry driver has concluded an employment contract and which is formally named in that contract as being the employer of that driver. The second and third questions 81In view of the answer given to the first question, there is no need to answer the second and third questions. Costs 82Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 14(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, and Article 13(1)(b)(i) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, must be interpreted as meaning that the employer of an international long-distance lorry driver, for the purposes of those provisions, is the undertaking which has actual authority over that long-distance lorry driver, which bears, in reality, the costs of paying his or her wages, and which has the actual power to dismiss him or her, and not the undertaking with which that long-distance lorry driver has concluded an employment contract and which is formally named in that contract as being the employer of that driver. [Signatures]( *1 ) Language of the case: Dutch. | e1dfa-ff4551c-48dd | EN |
The referring court must ascertain whether the new Disciplinary Chamber of the Polish Supreme Court is independent in order to determine whether that chamber has jurisdiction to rule on cases where judges of the Supreme Court have been retired, or in order to determine whether such cases must be examined by another court which meets the requirement that courts must be independent | 19 November 2019 ( *1 ) ( i )Table of contentsLegal contextEuropean Union lawThe EU TreatyThe CharterDirective 2000/78Polish lawThe ConstitutionThe New Law on the Supreme Court– The provisions lowering the retirement age for judges of the Sąd Najwyższy (Supreme Court)– Provisions on the appointment of judges to the Sąd Najwyższy (Supreme Court)– Provisions on the Disciplinary ChamberLaw on the system of administrative courtsThe Law on the KRSThe disputes in the main proceedings and the questions referred for a preliminary rulingProcedure before the CourtConsideration of the questions referredThe first question in Cases C‑624/18 and C‑625/18The questions in Case C‑585/18 and the second and third questions in Cases C‑624/18 and C‑625/18The jurisdiction of the CourtWhether it is necessary to give a rulingAdmissibility of the second and third questions in Cases C‑624/18 and C‑625/18The substance of the second and third questions in Cases C‑624/18 and C‑625/18Costs(Reference for a preliminary ruling — Directive 2000/78/EC — Equal treatment in employment and occupation — Non-discrimination on the ground of age — Lowering of the retirement age of judges of the Sąd Najwyższy (Supreme Court, Poland) — Article 9(1) — Right to a remedy — Article 47 of the Charter of Fundamental Rights of the European Union — Effective judicial protection — Principle of judicial independence — Creation of a new chamber of the Sąd Najwyższy (Supreme Court) with jurisdiction inter alia for cases of retiring the judges of that court — Chamber formed by judges newly appointed by the President of the Republic of Poland on a proposal of the National Council of the Judiciary — Independence of that council — Power to disapply national legislation not in conformity with EU law — Primacy of EU law)In Joined Cases C‑585/18, C‑624/18 and C‑625/18,THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland), made by decisions of 30 August 2018 (C‑585/18) and of 19 September 2018 (C‑624/18 and C‑625/18), received at the Court on 20 September 2018 (C‑585/18) and 3 October 2018 (C‑624/18 and C‑625/18), in the proceedings A. K. v Krajowa Rada Sądownictwa (C‑585/18),and CP (C‑624/18), DO (C‑625/18) Sąd Najwyższy, third party: Prokurator Generalny, represented by the Prokuratura Krajowa,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Prechal (Rapporteur), E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, and N. Piçarra, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit, and R. Schiano, Administrator,having regard to the written procedure and further to the hearings on 19 March and 14 May 2019,after considering the observations submitted on behalf of:–A. K., CP and DO, by S. Gregorczyk-Abram and M. Wawrykiewicz, adwokaci,the Krajowa Rada Sądownictwa, by D. Drajewicz, J. Dudzicz, and D. Pawełczyk-Woicka,the Sąd Najwyższy, by M. Wrzołek-Romańczuk, radca prawny,the Prokurator Generalny, represented by the Prokuratura Krajowa, by S. Bańko, R. Hernand, A. Reczka, T. Szafrański and M. Szumacher,the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents, and by W. Gontarski, adwokat,the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,the European Commission, by H. Krämer and by K. Herrmann, acting as Agents,the EFTA Surveillance Authority, by J.S. Watson, C. Zatschler, I.O. Vilhjálmsdóttir and C. Howdle, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 27 June 2019,gives the following Judgment 1These requests for a preliminary ruling concern the interpretation of Article 2 and of the second subparagraph of Article 19(1) TEU, of the third paragraph of Article 267 TFEU, of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).2The requests have been made in proceedings between, on the one hand, A. K., Judge of the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) and the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’) (Case C‑585/18) and, on the other, CP and DO, Judges of the Sąd Najwyższy (Supreme Court, Poland), and that court (Cases C‑624/18 and C‑625/18) concerning their early retirement due to the entry into force of new national legislation. Legal context European Union law The EU Treaty 3Article 2 TEU reads as follows:‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’4Article 19(1) TEU provides:‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ The Charter 5Title VI of the Charter, under the heading ‘Justice’, includes Article 47 thereof, entitled ‘Right to an effective remedy and to a fair trial’, which states as follows:‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ……’6Under Article 51 of the Charter, under the heading ‘Scope’:‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They must therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the European Union as conferred on it in the Treaties.2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’7Article 52(3) of the Charter states:‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’8The Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) point out that the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). Directive 2000/78 9Article 1 of Directive 2000/78 provides:‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of … age … as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’10Article 2(1) of that directive provides:‘For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.’11Article 9(1) of Directive 2000/78 states:‘Member States shall ensure that judicial and/or administrative procedures … for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.’ Polish law The Constitution 12Under Article 179 of the Constitution, the President of the Republic of Poland (‘the President of the Republic’) shall appoint judges, on a proposal of the KRS, for an indefinite period.13Under Article 186(1) of the Constitution:‘The [KRS] shall be the guardian of the independence of the courts and of the judges.’14Article 187 of the Constitution provides:‘1. The [KRS] shall be composed of:(1)the First President of the [Sąd Najwyższy (Supreme Court)], the Minister for Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] and a person designated by the President of the Republic,(2)Fifteen elected members from among the judges of the [Sąd Najwyższy (Supreme Court)], the ordinary courts, the administrative courts and the military courts,(3)Four members elected by [the Sejm (Lower Chamber of the Polish Parliament)] from among the members [of the Lower Chamber] and two members elected by the Senate from among the senators.…3. The elected members of the [KRS] shall have a mandate of four years.4. The regime applicable to the [KRS] … and the procedure by which its members are elected shall be laid down by law.’ The New Law on the Supreme Court – The provisions lowering the retirement age for judges of the Sąd Najwyższy (Supreme Court) 15Article 30 of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 23 November 2002 (Dz. U. of 2002, item 240) set the retirement age for judges of the Sąd Najwyższy (Supreme Court) at 70 years.16On 20 December 2017, the President of the Republic signed the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) (‘the New Law on the Supreme Court’), which entered into force on 3 April 2018. That law was subsequently amended on several occasions.17Under Article 37 of the New Law on the Supreme Court:‘1. Judges of the [Sąd Najwyższy (Supreme Court)] shall retire on the day of their 65th birthday, unless they make a statement, no earlier than 12 months and no later than 6 months before reaching [the age of 65], indicating their desire to continue to perform their duties, and submit a certificate, drawn up under the conditions applicable to candidates applying for a judge’s post, confirming that their state of health allows them to serve, and the [President of the Republic] consents to their continuing to perform their duties at the [Sąd Najwyższy (Supreme Court)].1a. Prior to granting such authorisation, the [President of the Republic] shall consult the [KRS]. The [KRS] shall provide the [President of the Republic] with an opinion within 30 days of the date on which the [President of the Republic] requests submission of such an opinion. If the opinion is not submitted within the period referred to in the second sentence, the [KRS] shall be deemed to have submitted a positive opinion.1b. When providing the opinion referred to in paragraph 1a, the [KRS] shall take into account the interest of the judicial system or an important public interest, in particular the rational distribution of members of the [Sąd Najwyższy (Supreme Court)] or the needs arising from the workload of individual chambers of the [Sąd Najwyższy (Supreme Court)].4. The authorisation referred to in paragraph 1 shall be granted for a period of three years, no more than twice. …’18Article 39 of that law provides:‘The [President of the Republic] shall declare the date on which a judge of the [Sąd Najwyższy (Supreme Court)] retires or is retired.’19Under Article 111(1) of that law:‘Judges of the [Sąd Najwyższy (Supreme Court)] who by the date of entry into force of this law have reached the age of 65 or who will have reached the age of 65 within three months of the date of entry into force of this law shall retire on the day following the expiry of that three-month period, unless they submit the declaration and certificate referred to in Article 37(1) within one month of the date of entry into force of this law and the [President of the Republic] grants authorisation for those judges of the [Sąd Najwyższy (Supreme Court)] to continue to carry out their duties. …’– Provisions on the appointment of judges to the Sąd Najwyższy (Supreme Court) 20Under Article 29 of the New Law on the Supreme Court, judges shall be appointed to the Sąd Najwyższy (Supreme Court) by the President of the Republic acting on a proposal from the [KRS]. Article 30 of that law sets out the conditions which a person must satisfy in order to qualify for the post of judge of the Sąd Najwyższy (Supreme Court).– Provisions on the Disciplinary Chamber 21The New Law on the Supreme Court created a new chamber within the Sąd Najwyższy (Supreme Court) known as the ‘Izba Dyscyplinarna’ (‘the Disciplinary Chamber’).22Article 20 of the New Law on the Supreme Court states:‘With regard to the Disciplinary Chamber and the judges who adjudicate in it, the powers of the First President of the [Sąd Najwyższy (Supreme Court)] as defined in:Article 14(1)(1), (4) and (7), Article 31(1), Article 35(2), Article 36(6), Article 40(1) and (4) and Article 51(7) and (14) shall be exercised by the President of the [Sąd Najwyższy (Supreme Court)] who shall direct the work of the Disciplinary Chamber;Article 14(1)(2) and the second sentence of Article 55(3) shall be exercised by the First President of the [Sąd Najwyższy (Supreme Court)] in agreement with the President of the [Sąd Najwyższy (Supreme Court)] who shall direct the work of the Disciplinary Chamber.’23Article 27(1) of the New Law on the Supreme Court states:‘The following cases shall fall within the jurisdiction of the Disciplinary Chamber:disciplinary proceedings:involving [Sąd Najwyższy (Supreme Court)] judgesproceedings in the field of labour law and social security involving [Sąd Najwyższy (Supreme Court)] judges;proceedings concerning the compulsory retirement of a [Sąd Najwyższy (Supreme Court)] judge.’24Article 79 of the New Law on the Supreme Court provides:‘Labour law and social insurance cases concerning [Sąd Najwyższy (Supreme Court)] judges and cases relating to the retirement of a [Sąd Najwyższy (Supreme Court)] judge shall be heard:at first instance by one judge of the Disciplinary Chamber of the [Sąd Najwyższy (Supreme Court)];at second instance by three judges of the Disciplinary Chamber of the [Sąd Najwyższy (Supreme Court)].’25Under Article 25 of the New Law on the Supreme Court:‘The Izba Pracy i Ubezpieczeń Społecznych [Labour and Social Insurance Chamber] shall have jurisdiction to hear and rule on cases concerning labour law, social insurance …’26The transitional measures of the New Law on the Supreme Court include inter alia the following provisions:‘Article 131Until all of the judges of the [Sąd Najwyższy (Supreme Court)] have been appointed to the Disciplinary Chamber, the other judges of the [Sąd Najwyższy (Supreme Court)] cannot sit within that chamber.Article 134On entry into force of the present law, the judges of the [Sąd Najwyższy (Supreme Court)] sitting in the Labour, Social Insurance and Public Affairs Chamber shall sit in the Labour and Social Insurance Chamber.’27Under Article 1(14) of the ustawa o zmianie ustawy o Sądzie Najwyższym (Law amending the Law on the Supreme Court), of 12 April 2018 (Dz. U. of 2018, item 847), which entered into force on 9 May 2018, Article 131 of the New Law on the Supreme Court was amended as follows:‘Judges who, on the date of the entry into force of the present law, occupy posts in other Chambers of the [Sąd Najwyższy (Supreme Court)], may be transferred to posts in the Disciplinary Chamber. Until all judges of the [Sąd Najwyższy (Supreme Court)] sitting in the Disciplinary Chamber have been appointed for the first time, a judge occupying a post in another chamber of the [Sąd Najwyższy (Supreme Court)] may submit a request [to the KRS] to be transferred to a post in the Disciplinary Chamber, after having obtained the consent of the First President of the [Sąd Najwyższy (Supreme Court)] and of the President of the [Sąd Najwyższy (Supreme Court)] responsible for directing the work of the Disciplinary Chamber and of the President of the chamber in which the applicant judge occupies a position. On a proposal [from the KRS], the [President of the Republic] shall appoint a judge of the [Sąd Najwyższy (Supreme Court)], to the Disciplinary Chamber, until the date on which all posts within that chamber have been filled for the first time.’ Law on the system of administrative courts 28Article 49 of the ustawa — Prawo o ustroju sądów administracyjnych (Law on the system of administrative courts) of 25 July 2002 (Dz. U. of 2017, item 2188) provides that, as regards aspects which are not governed by that law, the provisions of the New Law on the Supreme Court are to be applied. The Law on the KRS 29The KRS is governed by the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. No 126 of 2011, item 714), as amended by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3) (‘Law on the KRS’).30Under Article 9a of the Law on the KRS:‘1. The Lower Chamber [of the Polish Parliament] shall elect, among the judges of the [Sąd Najwyższy (Supreme Court)] and of the ordinary, administrative and military courts, 15 members [of the KRS] for a collective term of four years.2. In the election referred to in paragraph 1, the Lower Chamber shall, as far as possible, take into account the need for representativeness within [the KRS] of various types and levels of the courts.3. The collective term of the new members [of the KRS], elected among the judges, shall begin the day following their election. Serving members [of the KRS] shall exercise their posts until the day on which the collective term of the new members [of the KRS] begins.’31Under Article 11a(2) of the Law on the KRS, candidates for the post of member of the KRS, chosen among the judges, may be presented by a group of at least 2000 Polish citizens or by a group of at least 25 judges in active service. The procedure for the Lower Chamber to appoint members of the KRS is set out in Article 11d of the Law on the KRS.32In accordance with Article 34 of the Law on the KRS, a panel of three members of the KRS is to adopt a position on the assessment of candidates’ suitability for the post of judge.33Article 35 of the Law on the KRS provides:‘1. Where several candidates have applied for a post of judge or trainee judge, the group shall draw up a list of recommended candidates.2. In determining the order of the candidates on the list, the group shall take into account, in the first place, the assessment of the candidates’ qualifications and it shall also consider:the professional experience, including experience in the application of legislative provisions, academic output, the opinion of his or her superiors, letters of recommendation, publications and other documents enclosed with the application form;the opinion of the kolegium (general assembly) of the relevant court and the evaluation of the relevant general assembly of judges.3. The absence of any of the documents referred to in paragraph 2 shall not constitute an obstacle to the drawing up of a list of recommended candidates.’34Under Article 37(1) of the Law on the KRS:‘If several candidates have applied for a single post of judge, [the KRS] shall examine and evaluate all the applications lodged together. In that case, [the KRS] shall adopt a resolution including its decisions for the purposes of presenting one appointment proposition to the post of judge in respect of all candidates.’35Article 44 of the Law on the KRS provides:‘1. An applicant may bring an action before the [Sąd Najwyższy (Supreme Court)] on the ground of the illegality of [the KRS’s] resolution, unless specific provisions provide otherwise. …1a. In individual cases regarding appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)], an action may be brought before the [Naczelny Sąd Administracyjny (Supreme Administrative Court)]. In those cases, no action may be brought before the [Sąd Najwyższy (Supreme Court)]. The action before the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] cannot be based on a plea alleging an inadequate evaluation of whether the candidates fulfilled the criteria taken into account in arriving at its decision on the presentation of an appointment proposal to the post of judge of the [Sąd Najwyższy (Supreme Court)].1b. If all of the applicants have not challenged the resolution referred to in Article 37(1) in individual cases regarding appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)], that resolution shall become final in respect of the part concerning the decision on the presentation of the appointment proposition to the post of judge of the [Sąd Najwyższy (Supreme Court)] and in respect of the part concerning the decision not to present an appointment proposition to the post of judge of that court, as regards the applicants who did not challenge that decision.2. An action shall be lodged through the offices of the Przewodniczący [President of the KRS], within two weeks of notice of the resolution with its statement of reasons. …’36Under Article 6 of the Law of 8 December 2017 amending the Law on the KRS:‘The term of office of the members [of the KRS] referred to in Article 187(1)(2) of the [Constitution], elected pursuant to provisions now in force, shall continue until the day preceding the term of the new members [of the KRS] without, however, exceeding 90 days from the date of the entry into force of the present law, unless that term has not already expired.’ The disputes in the main proceedings and the questions referred for a preliminary ruling 37In Case C‑585/18, A. K., a judge of the Naczelny Sąd Administracyjny (Supreme Administrative Court) who reached the age of 65 before the entry into force of the New Law on the Supreme Court, submitted, on the basis of Article 37(1) and of Article 111(1) of that law, a declaration indicating his wish to continue in his position. On 27 July 2018, the KRS issued an unfavourable opinion to that request under Article 37(1a) of that law. On 10 August 2018, A. K. brought an action before the Sąd Najwyższy (Supreme Court) in respect of that opinion. In support of his action, A. K. claimed, inter alia, that retiring him at the age of 65 infringed the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Directive 2000/78, in particular, Article 9(1) thereof.38Cases C‑624/18 and C‑625/18 concern two judges of the Sąd Najwyższy (Supreme Court), CP and DO, who also reached the age of 65 before the date of the entry into force of the New Law on the Supreme Court but who have not submitted declarations on the basis of Article 37(1) and of Article 111(1) of that law. Having been informed that the President of the Republic had, pursuant to Article 39 of that law, declared that they had been retired as of 4 July 2018, CP and DO brought actions before the Sąd Najwyższy (Supreme Court) against the President of the Republic for a declaration that their employment relationship of judge in active service in the referring court had not been transformed, as of that date, into an employment relationship of retired judge of that court. In support of their actions, they rely, inter alia, on an infringement of Article 2(1) of Directive 2000/78 prohibiting discrimination on the ground of age.39The Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Labour and Social Insurance Chamber’), before which these various actions are pending, notes, in its orders for reference in Cases C‑624/18 and C‑625/18, that the actions were brought before it since the Disciplinary Chamber has not yet been formed. In those circumstances, the referring court asks whether Article 9(1) of Directive 2000/78 and Article 47 of the Charter require it to disapply the provisions of national law which reserve jurisdiction to hear and rule on such actions to a chamber which has not yet been formed. The referring court points out, however, that that question could become irrelevant if enough posts of judge of the Disciplinary Chamber were actually filled.40Furthermore, in its orders for reference in Cases C‑585/18, C‑624/18 and C‑625/18, the referring court considers that, in the light of, inter alia, the circumstances in which the new judges of the Disciplinary Chamber will be appointed, serious doubts arise as to whether that chamber and its members will provide sufficient guarantees of independence and impartiality.41In that regard, the referring court, which observes that those judges are appointed by the President of the Republic on a proposal of the KRS, notes, first of all, that, under the reform enacted by the Law of 8 December 2017 amending the Law on the National Council of the Judiciary and certain other laws, the 15 members of the KRS who, of its 25 members, must be elected among judges are now not elected by general assembly of judges of all levels as before, but by the Lower Chamber of the Polish Parliament. According to the referring court, that situation disregards the principle of the separation of powers as the basis for a democratic State governed by the rule of law and is not consistent with the prevailing international and European standards in that regard, as is clear, in particular, from Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe on Judges: independence, efficiency and responsibilities of 17 November 2010, from Opinion No 904/2017 (CDL-AD(2017)031) of the European Commission for Democracy through Law (Venice Commission) of 11 December 2017 and from Opinion No 10(2007) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society of 23 November 2007.42Next, according to the referring court, both the conditions, in particular those of a procedural nature, under which the members of the KRS were selected and appointed during 2018 and an examination of the way in which that body thus constituted has acted, until the present, demonstrate that the KRS is subject to the political authorities and is incapable of exercising its constitutional role of ensuring the independence of the courts and of the judiciary.43First, the referring court considers that the recent elections of the new members of the KRS were not transparent and there are serious doubts as to whether the requirements laid down in the applicable legislation were actually complied with during those elections. Moreover, the requirement of representativeness of the various types and levels of the judiciary laid down in Article 187(1)(2) of the Constitution has not been respected. The KRS has no elected judge from the Sąd Najwyższy (Supreme Court), the courts of appeal or the military courts, but has 1 representative of a regional administrative court, 2 representatives of regional courts and 12 representatives of district courts.44Second, an examination of the activities of the KRS as now formed is said to demonstrate a complete lack of the adoption of any stance by that body for the purposes of defending the independence of the Sąd Najwyższy (Supreme Court) in the crisis caused by the recent legislative reforms affecting that court. By contrast, the KRS, or members thereof, have publicly criticised members of the Sąd Najwyższy (Supreme Court) for having referred questions to the Court of Justice for a preliminary ruling or cooperated with the EU institutions, in particular with the European Commission. Furthermore, the KRS’s practice — when called on to issue an opinion on the possibility for a judge of the Sąd Najwyższy (Supreme Court) to continue to serve beyond the retirement age now set at 65 — consists, as demonstrated, inter alia, in the opinion of the KRS challenged before the referring court in Case C‑585/18, in issuing unreasoned unfavourable opinions or merely reproducing the wording of Article 37(1b) of the New Law on the Supreme Court.45In addition, the selection procedure conducted by the KRS for the purposes of filling the 16 posts of judge of the Disciplinary Chamber declared vacant on 24 May 2018 by the President of the Republic reveals that the 12 candidates chosen by the KRS, namely 6 Public Prosecutors, 2 judges, 2 legal advisers and 2 professors, were persons who were, until that time, subject to the executive, persons who, during the crisis of the rule of law in Poland, have acted on the instructions of the political authorities or in line with their expectations, or, lastly, persons who do not meet the statutory criteria or persons who have in the past been the subject of disciplinary sanctions.46Lastly, the referring court notes that the procedure during the course of which the KRS is called on to select candidates to the posts of judge of the Disciplinary Chamber, who cannot be chosen from currently serving members of the Sąd Najwyższy (Supreme Court), was designed and, subsequently, amended, so that the KRS may act in an ad hoc manner, without the possibility of any meaningful review in that regard.47First, the Supreme Court is no longer involved in that appointment process and, thus, the actual and effective assessment of the qualities of the candidates may no longer be guaranteed. Second, the fact that candidates have not provided the documents referred to in Article 35(2) of the Law on the KRS, which are nevertheless essential for the purposes of distinguishing between the candidates, is no longer, as is clear from Article 35(3) of that law, an obstacle to the drawing up of the list of candidates recommended by the KRS. Third, under Article 44 of that law, the KRS’s decisions become final until challenged by all of the candidates, which effectively precludes any actual possibility of their judicial review.48In that context, the referring court harbours doubts as to the importance which should be ascribed, as regards compliance with the requirement stemming from EU law that the courts and the judiciary of the Member States must be independent, to factors such as, first, independence, from the political authorities, of the body responsible for selecting judges, and, second, the circumstances surrounding the selection of the members of a newly created chamber of a court in a particular Member State, where that chamber has jurisdiction to rule on cases governed by EU law.49In the event that such a chamber of a court does not meet the requirement that courts be independent, the referring court wishes to know whether EU law must be interpreted as meaning that the referring court must disapply the application of provisions of national law which, by reserving such jurisdiction to that chamber, impinge on its own jurisdiction to hear and to rule, where relevant, on the cases in the main proceedings. In its orders for reference in Cases C‑624/18 and C‑625/18, the referring court observes, in that regard, that it has general jurisdiction in labour law and the law of social security, which empowers it, in particular, to rule on cases such as those in the main proceedings which concern alleged infringement of the prohibition of discrimination in employment on the ground of age.50In those circumstances the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber)) decided to stay the proceedings and refer questions to the Court for a preliminary ruling.51In Case C‑585/18, the questions referred are worded as follows:‘(1)On a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear an action by a national court judge and which must be composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts (the [KRS]), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?If the answer to the first question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter of Fundamental Rights], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court and is seised of an appeal in a case falling within the scope of EU law should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’52In Cases C‑624/18 and C‑625/18, the questions referred were worded as follows:Should Article 47 of the [Charter], read in conjunction with Article 9(1) of [Directive 2000/78], be interpreted as meaning that, where an appeal is brought before a court of last instance in a Member State against an alleged infringement of the prohibition of discrimination on the ground of age in respect of a judge of that court, together with a motion for granting security in respect of the reported claim, that court — in order to protect the rights arising from EU law by ordering an interim measure provided for under national law — must refuse to apply national provisions which confer jurisdiction, in the case in which the appeal has been lodged, on a chamber of that court which is not operational by reason of a failure to appoint judges to be its members?In the event that judges are appointed to adjudicate within the chamber with jurisdiction under national law to hear and determine the action brought, on a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear the case of a national court judge at first or second instance and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the [(KRS)], which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?If the answer to the second question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court seised with an appeal in an EU case should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’ Procedure before the Court 53Cases C‑585/18, C‑624/18 and C‑625/18 were joined by decision of the President of the Court of 5 November 2018.54By order of 26 November 2018, A. K. and Others (C‑585/18, C‑624/18 and C‑625/18, not published, EU:C:2018:977), the President of the Court accepted the referring court’s request that the present cases be subject to the expedited procedure. Thus, as provided for by Article 105(2) and (3) of the Rules of Procedure of the Court, the date for the hearing was fixed immediately, namely for 19 March 2019, and communicated to the interested parties together with notification of the requests for a preliminary ruling. A time limit was prescribed for the interested parties to lodge any written observations.55On 19 March 2019, a first hearing was held before the Court. On 14 May 2019, a second hearing was organised by the Court following, inter alia, a request from the KRS, which had not lodged any written observations before the Court, had not been represented at the first hearing and wished to be heard, and in order to allow the interested parties to make submissions on any implications for the present cases which may have resulted from a judgment delivered on 25 March 2019, in which the Trybunał Konstytucyjny (Constitutional Court, Poland) declared Article 9a of the Law on the KRS to be compatible with Article 187(1)(2) and (4) of the Constitution.56Furthermore, at that second hearing, the KRS provided a copy of Resolution No 6 adopted by the General Assembly of the judges of the Disciplinary Chamber on 13 May 2019, which sets out the position of that chamber on the procedure followed in the present joined cases. The copy of that resolution was circulated among the interested parties present and added to the case file.57By documents lodged at the Registry of the Court on 3 and 29 July 2019, on 16 September 2019 and on 7 November 2019 by the Polish Government, on 4 July 2019 by the KRS and on 29 October 2019 by the Prokurator Generalny (Public Prosecutor, Poland), a reopening of the oral part of the procedure was requested.58In support of its request, the KRS states, in essence, that it does not share the Opinion of the Advocate General, which it considers to be based on false premisses and which takes insufficient account, in its view, of the line of argument which it set out at the hearing of 14 May 2019. Consequently, it contends, in addition, that the Court should re-examine the possibility of taking into consideration the written observations previously submitted by the KRS which were rejected on account of being lodged out of time.59In its request of 3 July 2019 and in the further submissions which it addressed to the Court on 29 July and 16 September 2019, the Polish Government also states that it does not share the Opinion of the Advocate General, which, it claims, contain certain contradictions and are based, as is clear from certain points thereof and from corresponding points in the Opinion of the Advocate General made on 11 April 2019 in Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:325), on an erroneous interpretation of the past case-law of the Court, in particular of the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117). Furthermore, the Polish Government submits that the Advocate General’s Opinion contains a number of new arguments and positions, which have not been sufficiently aired. However, in the light of their supreme importance and fundamental implications for the various legal models applicable in the Member States as regards the composition of the national councils of the judiciary and the processes for judicial appointments, it claims that those factors justify a reopening of the oral part of the procedure in order to allow all the Member States to make submissions on the matter. In its request of 7 November 2019, in support of which it provided the minutes of a hearing of the Sąd Okręgowy w Krakowie (District Court, Kraków, Poland) of 6 September 2019, the Polish Government submits that that document raises the prospect that the judgment to be delivered by the Court in the present cases could give rise to legal uncertainty in Poland and that it thus discloses a new fact which is of such a nature as to be a decisive factor for the decision of the Court.60Lastly, the Public Prosecutor, who essentially points to factors previously relied on and arguments already set out by the Polish Government and the KRS in their respective abovementioned requests to reopen the oral part of the procedure of 3, 4 and 29 July 2019 and of 16 September 2019, maintains, first, that sufficient information is lacking on the facts of the cases in the main proceedings, as is clear from the Advocate General’s Opinion, second, that that Opinion adopts a position on important factors which were not debated between the parties and, third, that that Opinion is based on an erroneous interpretation of the past case-law of the Court which allegedly constitutes a new fact which is of such a nature as to be a decisive factor for the decision of the Court.61In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).62Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by those submissions or by the reasoning underpinning those submissions. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).63However, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.64In the present cases, the Court considers, however, having heard the Advocate General, that it has before it, following the written procedure and the two successive hearings which it held, all of the information necessary for it to give a ruling. Furthermore, it notes that these joined cases shall not be decided on the basis of an argument which has not been the subject of exchanges between the parties. Lastly, it considers that the various requests to reopen the oral part of the present procedure do not disclose any new fact which is of such a nature as to be a decisive factor for the decision of the Court in those cases. In those circumstances, it is not necessary to reopen the oral part of the procedure.65Lastly, as regards the request repeated by the KRS that the Court should take into account its written observations of 4 April 2019, it should be noted that that party to the main proceedings which, like the other interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, was asked to submit such observations within the period prescribed for doing so deliberately refrained from lodging observations within that time, as is expressly made clear in the letter of 28 March 2019 which it sent to the Court. In those circumstances, the abovementioned written observations, which were lodged by the KRS out of time and were therefore returned to the KRS, also cannot be taken into consideration by the Court at this stage in the procedure. Consideration of the questions referred The first question in Cases C‑624/18 and C‑625/18 66By its first question in Cases C‑624/18 and C‑625/18, the referring court asks, in essence, whether Article 9(1) of Directive 2000/78 read in conjunction with Article 47 of the Charter must be interpreted as meaning that, where an action is brought before a court of last instance in a Member State alleging infringement of the prohibition of discrimination on the ground of age arising from that directive, such a court must refuse to apply provisions of national law which confer jurisdiction to rule on such an action on a court, such as the Disciplinary Chamber, which has not yet been formed because the judges of that court have not been appointed.67In the present cases, it is, however, important to take account of the fact that, shortly after the adoption of the orders for reference in Cases C‑624/18 and C‑625/18, the President of the Republic appointed the judges of the Disciplinary Chamber, which has now been formed.68In the light of that fact, it must be found that an answer to the first question in Cases C‑624/18 and C‑625/18 is no longer relevant for the purposes of the decisions which the referring court is called on to deliver in those two cases. Only if the Disciplinary Chamber were not sufficiently operational would that question need to be answered.69It has consistently been held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 29 and the case-law cited).70In that regard, it should be borne in mind that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited). If it appears that the question raised is manifestly no longer relevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (see, to that effect, judgment of 24 October 2013, Stoilov i Ko, C‑180/12, EU:C:2013:693, paragraph 38 and the case-law cited).71It follows, as submitted by the KRS, the Polish Government and the Commission, and as had, moreover, been suggested by the referring court itself, as is clear from paragraph 39 above, that it is no longer necessary for the Court to rule on the first question referred in Cases C‑624/18 and C‑625/18. The questions in Case C‑585/18 and the second and third questions in Cases C‑624/18 and C‑625/18 72By its questions in Case C‑585/18 and its second and third questions in Cases C‑624/18 and C‑625/18, which it is appropriate to consider together, the referring court asks, in essence, whether Article 2 and the second subparagraph of Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter must be interpreted as meaning that a chamber of a supreme court in a Member State, such as the Disciplinary Chamber, which is called on to rule on cases falling within the scope of EU law, satisfies, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required by those provisions of EU law. If that is not the case, the referring court asks whether the principle of the primacy of EU law must be interpreted as meaning that that court is required to disapply the provisions of national law which reserve jurisdiction to rule on such cases to that chamber of that court. The jurisdiction of the Court 73The Public Prosecutor has submitted, in the first place, that the Court has no jurisdiction to provide rulings on the second and third questions referred in Cases C‑624/18 and C‑625/18 on the ground that the provisions of EU law to which those questions refer do not provide a definition of the concept of an ‘independent court’ and do not lay down any rules on the jurisdiction of national courts and national councils of the judiciary, since those questions fall within the exclusive competencies of the Member States and cannot be encroached upon by the European Union.74However, the fact remains that the arguments thus advanced by the Public Prosecutor do in fact concern the very scope of those provisions of EU law and, thus, concern an interpretation of those provisions. An interpretation of that nature clearly falls within the jurisdiction of the Court under Article 267 TFEU.75In that regard, the Court has previously held that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited).76In the second place, the Public Prosecutor claims that, as regards the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the Court also lacks jurisdiction to rule on those two referred questions because the provisions of national law at issue in the main proceedings do not implement EU law or fall within the scope thereof and they cannot therefore be assessed under that law.77As regards, first of all, the provisions of the Charter, it should certainly be recalled that, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 22 and the case-law cited).78The scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 23 and the case-law cited).79However, in the present cases, as regards, in particular, Article 47 of the Charter, the Court notes that, in the actions in the main proceedings, the applicants rely, inter alia, on infringements to their detriment of the prohibition of discrimination in employment on the ground of age, which is provided for by Directive 2000/78.80In addition, it is to be noted that the right to an effective remedy is reaffirmed by Directive 2000/78, Article 9 of which provides that Member States must ensure that all persons who consider themselves wronged by failure to apply the principle of equal treatment to them as provided for by that directive are able to assert their rights (judgment of 8 May 2019, Leitner, C‑396/17, EU:C:2019:375, paragraph 61 and the case-law cited).81It follows from the foregoing that the present cases are situations governed by EU law, so that the applicants in the main proceedings are justified in asserting the right to effective judicial protection afforded to them by Article 47 of the Charter.82Next, as regards the scope of the second subparagraph of Article 19(1) TEU, that provision, first, aims to guarantee effective judicial protection in ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 50 and the case-law cited).83Contrary to what has been claimed by the Public Prosecutor in that regard, the fact that the national salary reduction measures at issue in the case which gave rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117) were adopted due to requirements linked to the elimination of the excessive budget deficit of the Member State concerned and in the context of an EU financial assistance programme for that Member State did not, as is apparent from paragraphs 29 to 40 of that judgment, play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. That conclusion was reached on the basis of the fact that the national body at issue in that case, namely the Tribunal de Contas (Court of Auditors, Portugal), could, subject to verification to be carried out by the referring court in that case, rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and thus falling within the fields covered by EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 51 and the case-law cited).84Since the actions in the main proceedings concern alleged infringements of rules of EU law, it is sufficient to find that, in the present cases, the court called on to dispose of the cases will be required to rule on questions concerning the application or interpretation of EU law and thus falling within the fields covered by EU law within the meaning of the second subparagraph of Article 19(1) TEU.85Lastly, in respect of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to the Republic of Poland and to the United Kingdom (OJ 2010 C 83, p. 313), on which the Public Prosecutor also relies, it must be observed that that protocol does not concern the second subparagraph of Article 19(1) TEU and it should be recalled that it does not call into question the applicability of the Charter in Poland, nor is it intended to exempt the Republic of Poland from the obligation to comply with the provisions of the Charter (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 53 and the case-law cited).86It follows from all the foregoing that the Court has jurisdiction to interpret Article 47 of the Charter and the second subparagraph of Article 19(1) TEU in the present cases. Whether it is necessary to give a ruling 87The KRS, the Public Prosecutor and the Polish Government have stated that, on 17 December 2018, the President of the Republic signed the ustawa o zmianie ustawy o Sądzie Nawyższym (Law amending the [New Law on the Supreme Court]) of 21 November 2018 (Dz. U. of 2018, item 2507, ‘the Law of 21 November 2018’), which entered into force on 1 January 2019.88It is clear that Article 1 of that law repeals Article 37(1a) to (4) and Article 111(1) of the New Law on the Supreme Court and amends Article 37(1) thereof to the effect that ‘the judges of the Sąd Najwyższy [(Supreme Court)] shall retire at the age of 65’. It is, however, specified that that provision applies only to judges of the Sąd Najwyższy (Supreme Court) who entered into service in that court after 1 January 2019. The previous wording of Article 30 of the Law on the Supreme Court of 23 November 2002, which provided for retirement at the age of 70, applies to judges of the Sąd Najwyższy (Supreme Court) who entered into service before that date.89Article 2(1) of the Law of 21 November 2018 provides that, ‘from the date of the entry into force of the present law, any judge of the Sąd Najwyższy [(Supreme Court)] or of the Naczelny Sąd Administracyjny [(Supreme Administrative Court)] who has been retired pursuant to Article 37(1) to (4) or Article 111(1) or (1a) of the [New Law on the Supreme Court] shall re-enter active service in the post he or she held on the date of the entry into force of [that law]. Service as judge of the Sąd Najwyższy [(Supreme Court)] or of the Naczelny Sąd Administracyjny [(Supreme Administrative Court)] shall be regarded as having continued without interruption’.90Article 4(1) of the Law of 21 November 2018 provides that ‘procedures commenced pursuant to Article 37(1) and to Article 111(1) to (1b) of the [New Law on the Supreme Court] and appeal procedures pending in those cases on the date of the entry into force of the present law shall be discontinued’, and Article 4(2) thereof provides that ‘procedures commenced and pending at the date of the entry into force of the present law, for the purposes of establishing the existence of an employment relationship as a judge in active service of the Sąd Najwyższy [(Supreme Court)] or of the Naczelny Sąd Administracyjny [(Supreme Administrative Court)], in respect of the judged referred to in Article 2(1), shall be discontinued’.91According to the KRS, the Public Prosecutor and the Polish Government, it follows from Article 1 and Article 2(1) of the Law of 21 November 2018 that the judges who are applicants in the main proceedings and were retired pursuant to provisions of the New Law on the Supreme Court, now repealed, have been returned to their previous posts in those courts by operation of law, until they reach the age of 70, in accordance with the provisions of national law previously in force, but that any possibility of extension, by the President of the Republic, of their term in office beyond the ordinary retirement age has also been repealed.92In those circumstances, and in accordance with Article 4 of that law providing for cases such as those in the main proceedings to be discontinued, it is said that those cases have become devoid of purpose, so that it is no longer be necessary for the Court to rule on the present references for a preliminary ruling.93In the light of the foregoing, on 23 January 2019, the Court asked the referring court whether, following the entry into force of the Law of 21 November 2018, that court considered that an answer to the questions referred was still necessary to enable it to deliver judgment in the cases pending before it.94In its reply of 25 January 2019, the referring court confirmed that request, adding that, by orders of 23 January 2019, it had ordered a stay in the proceedings on the requests that there is no need to proceed to judgment lodged before it by the Public Prosecutor, under Article 4(1) and (2) of the Law of 21 November 2018, until the Court has ruled on the present cases.95In that reply, the referring court explains that an answer to the questions referred in those cases is still necessary for it to be able to dispose of the preliminary procedural problems with which it is faced prior to it being able to deliver judgment in those cases.96Furthermore, as regards the substance of the cases in the main proceedings, the referring court indicated that the Law of 21 November 2018 was not intended to render national law compatible with EU law, but to apply the interim measures ordered by the Vice-President of the Court in her order of 19 October 2018, Commission v Poland (C‑619/18 R, not published, EU:C:2018:852), upheld by order of the Court of 17 December 2018, Commission v Poland (C‑619/18 R, EU:C:2018:1021). That law did not therefore repeal the provisions of national law at issue or their legal effects ex tunc. Whereas that law purports to reinstate those judges who are applicants in the main proceedings to their office after their retirement and to introduce a legal fiction as to the continued nature of their term in office effected by that reinstatement, the actions in the main proceedings seek a declaration that the judges in question never took retirement and remained fully in their posts during that entire period, which can result only from the invalidity of the rules of national law at issue, under the primacy of EU law. That distinction is fundamental in determining the status of the judges in question from the perspective of their capacity to take judicial, organisational and administrative measures and from the perspective of any mutual rights and obligations in respect of the Sąd Najwyższy (Supreme Court) on the basis of an employment relationship, or even that of disciplinary sanctions. In that latter respect, the referring court notes that, according to the declarations of representatives of the political authorities, those judges were exercising their judicial office illegally until 1 January 2019, the date of the entry into force of the Law of 21 November 2018.97It should be noted that, as is clear from settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).98It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).99In the present cases, the Court notes, first of all, that, by the questions which the referring court referred to the Court for a preliminary ruling and by the interpretation of EU law sought in the present cases, the referring court wishes to be instructed not as to the substance of the cases before it which do in turn raise other questions of EU law, but as regards a procedural problem which it must answer in limine litis, since that problem relates to the jurisdiction of that court to hear and rule on those cases.100In that regard, it should be noted that, according to settled case-law, the Court has power to explain to the national court points of EU law which may help to solve the problem of jurisdiction with which that court is faced (judgments of 22 October 1998, IN. CO. GE.’90 and Others, C‑10/97 to C‑22/97, EU:C:1998:498, paragraph 15 and the case-law cited, and of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 43). That applies in particular where, as in the present cases, and as is clear from paragraphs 79 to 81 above, the questions raised relate to the issue whether a national court which ordinarily has jurisdiction to rule on a case in which an individual relies on a right stemming from EU law meets the requirements derived from the right to an effective remedy before a court of law as enshrined in Article 47 of the Charter and Article 9(1) of Directive 2000/78.101The Law of 21 November 2018 does not concern aspects relating to jurisdiction to rule on the cases in the main proceedings on which the referring court is thus called to rule and in respect of which it has, in the present cases, requested an interpretation of EU law.102Next, it should be made clear that the fact that national legislation, such as Article 4(1) and (2) of the Law of 21 November 2018, provides for discontinuance of cases such as those in the main proceedings cannot, in principle and without a decision of the referring court ordering such discontinuance or to the effect that there is no need to rule on the cases in the main proceedings, lead the Court to find that it is no longer necessary for it to answer the questions before it which were referred for a preliminary ruling.103It should be noted that national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law, that discretion being replaced by an obligation for courts ruling at final instance, subject to certain exceptions recognised by the Court’s case-law. A rule of national law thus cannot prevent a national court, where appropriate, from exercising that discretion, or complying with that obligation. Both that discretion and that obligation are an inherent part of the system of cooperation between the national courts and the Court of Justice established by Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts (judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraphs 32 and 33 and the case-law cited).104Provisions of national law such as those referred to in paragraph 102 above cannot therefore preclude a chamber of a court from which there is no appeal, faced with a question on the interpretation of EU law, from confirming questions which it referred to the Court for a preliminary ruling.105Lastly, it is to be noted that, as regards Cases C‑624/18 and C‑625/18, which concern the issue whether or not the applicants in the main proceedings continue to be in an employment relationship as judges in active service with the Sąd Najwyższy (Supreme Court) as their employer, it is clear from the explanations provided by the referring court, set out in paragraph 96 above, that, in the light of, inter alia, all of the consequences resulting from the existence of such an employment relationship, the mere fact of the entry into force of Article 2(1) of the Law of 21 November 2018 does not mean that it is beyond doubt that a declaration that there is no need to rule on the cases before the referring court is appropriate.106It follows from all the foregoing that the adoption and entry into force of the Law of 21 November 2018 is not capable of justifying the Court in not ruling on the second and third questions in Cases C‑624/18 and C‑625/18.107By contrast, as regards Case C‑585/18, it must be borne in mind that the action before the referring court relates to an opinion of the KRS delivered in a procedure capable of leading to a decision extending the exercise of judicial functions of the applicant in the main proceedings beyond the age of retirement now set at 65.108Indeed, it does not flow from the abovementioned explanations provided by the referring court that that action might still have a purpose, more particularly, that such an opinion might not be invalid, despite the fact that, under the provisions of national law adopted between then and now, both the provisions of national law setting a new retirement age and those setting out the procedure for extending the exercise of judicial functions bringing about the need for such an opinion have been repealed, as a result of which the applicant in the main proceedings may continue in his post as a judge until the age of 70, in accordance with the provisions of national law in force before the adoption of the provisions which were repealed.109In those circumstances, and in the light of the principles set out in paragraphs 69 and 70 above, it is no longer necessary for the Court to rule on the questions referred in Case C‑585/18. Admissibility of the second and third questions in Cases C‑624/18 and C‑625/18 110The Polish Government claims that the second and third questions in Cases C‑624/18 and C‑625/18 are inadmissible. It maintains, in the first place, that those questions are irrelevant because answers to them are unnecessary on account of the fact that the proceedings pending before the Labour and Social Insurance Chamber which referred the questions for a preliminary ruling are invalid, under Article 379(4) of the Civil Procedure Code, because they disregarded the rules relating to the composition and jurisdiction of the courts. There is a three-judge panel sitting in those cases in that chamber, whereas Article 79 of the New Law on the Supreme Court provides that cases such as those in the main proceedings must, at first instance, be decided by a single-judge panel. In the second place, the answers to the questions referred cannot, in any event, enable the referring court to rule on cases which fall within the jurisdiction of another chamber of the Sąd Najwyższy (Supreme Court) without impinging on the exclusive competency of the Member States to organise their national courts or overstepping the competency of the European Union, nor can those answers therefore be relevant to the outcome of the cases in the main proceedings.111However, the arguments thus put forward, which concern matters of substance, cannot affect the admissibility of the questions referred.112Indeed, the questions referred precisely concern the question of whether, notwithstanding rules of national law in force in the Member State in question attributing jurisdiction, a court such as the referring court has the obligation, under the provisions of EU law to which those questions refer, to disapply those rules of national law and to assume, where relevant, jurisdiction for the actions in the main proceedings. A judgment in which the Court were to uphold the existence of such an obligation would be binding on the referring court and all other bodies of the Republic of Poland, and could not be affected by provisions of domestic law relating to the invalidity of proceedings or by the distribution of jurisdiction between the courts to which the Polish Government refers.113It follows that the objections made by the Polish Government as to the admissibility of those questions cannot be upheld. The substance of the second and third questions in Cases C‑624/18 and C‑625/18 114It should be noted that, as is clear from paragraphs 77 to 81 above, in situations such as those at issue in the main proceedings, in which the applicants rely on infringements to their detriment of the prohibition of discrimination on the ground of age in employment provided by Directive 2000/78, both Article 47 of the Charter, which enshrines the right to effective judicial protection, and Article 9(1) of the directive, which reaffirms it, may apply.115In that regard, according to settled case-law, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, responsible for ensuring that, pursuant to Article 47 of the Charter, the right to effective judicial protection of those rights is effectively protected in every case (see, to that effect, judgments of 22 October 1998, IN. CO. GE.’90 and Others, C‑10/97 to C‑22/97, EU:C:1998:498, paragraph 14 and the case-law cited; of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraphs 44 and 45; and of 19 March 2015, E.ON Földgáz Trade, C‑510/13, EU:C:2015:189, paragraphs 49 and 50 and the case-law cited).116Furthermore, it should be noted that Article 52(3) of the Charter states that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR.117As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 40 and the case-law cited).118The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights (judgment of 29 July 2019, Gambino and Hyka, C‑38/18, EU:C:2019:628, paragraph 39).119As regards the substance of the second paragraph of Article 47 of the Charter, it is clear from the very wording of that provision that the fundamental right to an effective remedy enshrined therein means, inter alia, that everyone is entitled to a fair hearing by an independent and impartial tribunal.120That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 58 and the case-law cited).121According to settled case-law, the requirement that courts be independent has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 63 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 72).122The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 73).123Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 74).124Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive (see, to that effect, judgment of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraph 35).125In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 112 and the case-law cited).126That interpretation of Article 47 of the Charter is borne out by the case-law of the European Court of Human Rights on Article 6(1) of the ECHR according to which that provision requires that the courts be independent of the parties and of the executive and legislature (ECtHR, 18 May 1999, Ninn-Hansen v. Denmark, CE:ECHR:1999:0518DEC002897295, p. 19 and the case-law cited).127According to settled case-law of that court, in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407, § 141).128As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 145, 147 and 149 and the case-law cited).129As the European Court of Human Rights has repeatedly held, the concepts of independence and objective impartiality are closely linked which generally means that they require joint examination (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 192 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 150 and the case-law cited). According to the case-law of the European Court of Human Rights, in deciding whether there is reason to fear that the requirements of independence and objective impartiality are not met in a given case, the perspective of a party to the proceedings is relevant but not decisive. What is decisive is whether such fear can be held to be objectively justified (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, §§ 193 and 194 and the case-law cited, and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 147 and 152 and the case-law cited).130In that connection, the European Court of Human Rights has repeatedly stated that, although the principle of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law, neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor requires those States to comply with any theoretical constitutional concepts regarding the permissible limits of such interaction. The question is always whether, in a given case, the requirements of the ECHR have been met (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 193 and the case-law cited; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 59; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 62 and the case-law cited).131In the present cases, the doubts expressed by the referring court concern, in essence, the question whether, in the light of the rules of national law relating to the creation of a specific court, such as the Disciplinary Chamber, and, in particular, pertaining to the jurisdiction granted to it, its composition and the circumstances and conditions surrounding the appointment of the judges called to sit on that court, the context of its creation and those appointments, such a court and the members sitting on it satisfy the requirements of independence and impartiality which must be met by a court under Article 47 of the Charter where that court has jurisdiction to rule on a case in which subjects of the law rely, as in the present cases, on an infringement of EU law that is to their detriment.132It is ultimately for the referring court to rule on that matter having made the relevant findings in that regard. It must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 71 and the case-law cited).133In that regard, as far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited).134However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 111).135In that perspective, it is important, inter alia, that those conditions and detailed procedural rules are drafted in a way which meets the requirements set out in paragraph 125 above.136In the present cases, it should be made clear that Article 30 of the New Law on the Supreme Court sets out all the conditions which must be satisfied by an individual in order for that individual to be appointed as a judge of that court. Furthermore, under Article 179 of the Constitution and Article 29 of the New Law on the Supreme Court, the judges of the Disciplinary Chamber are, as is the case for judges who are to sit in the other chambers of the referring court, appointed by the President of the Republic on a proposal of the KRS, that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary.137The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 115; see also, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 81 and 82). In particular, the fact of subjecting the very possibility for the President of the Republic to appoint a judge to the Sąd Najwyższy (Supreme Court) to the existence of a favourable opinion of the KRS is capable of objectively circumscribing the President of the Republic’s discretion in exercising the powers of his office.138However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 116).139The degree of independence enjoyed by the KRS in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter.140It is for the referring court to ascertain whether or not the KRS offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant points of law and fact relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role.141The referring court has pointed to a series of elements which, in its view, call into question the independence of the KRS.142In that regard, although one or other of the factors thus pointed to by the referring court may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable.143Subject to those reservations, among the factors pointed to by the referring court which it shall be incumbent on that court, as necessary, to establish, the following circumstances may be relevant for the purposes of such an overall assessment: first, the KRS, as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the KRS elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the KRS directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed KRS.144For the purposes of that overall assessment, the referring court is also justified in taking into account the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it does so in a way which is capable of calling into question its independence in relation to the legislature and the executive.145Furthermore, in the light of the fact that, as is clear from the case file before the Court, the decisions of the President of the Republic appointing judges to the Sąd Najwyższy (Supreme Court) are not amenable to judicial review, it is for the referring court to ascertain whether the terms of the definition, in Article 44(1) and (1a) of the Law on the KRS, of the scope of the action which may be brought challenging a resolution of the KRS, including its decisions concerning proposals for appointment to the post of judge of that court, allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment (see, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 25 and 81).146Notwithstanding the assessment of the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the KRS in that regard, the referring court may, for the purposes of ascertaining whether that chamber and its members meet the requirements of independence and impartiality arising from Article 47 of the Charter, also wish to take into consideration various other features that more directly characterise that chamber.147That applies, first, to the fact referred to by the referring court that this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social security and retirement of judges of the Sąd Najwyższy (Supreme Court), which previously fell within the jurisdiction of the ordinary courts.148Although that fact is not conclusive per se, it should, however, be borne in mind, as regards, in particular, cases relating to the retiring of judges of the Sąd Najwyższy (Supreme Court) such as those in the main proceedings, that the assignment of those cases to the Disciplinary Chamber took place in conjunction with the adoption, which was highly contentious, of the provisions of the New Law on the Supreme Court which lowered the retirement age of the judges of the Sąd Najwyższy (Supreme Court), applied that measure to judges currently serving in that court and empowered the President of the Republic with discretion to extend the exercise of active judicial service of the judges of the referring court beyond the new retirement age set by that law.149It must be borne in mind, in that regard, that, in its judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531), the Court found that, as a result of adopting those measures, the Republic of Poland had undermined the irremovability and independence of the judges of the Sąd Najwyższy (Supreme Court) and failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.150Second, in that context, the fact must also be highlighted, as it was by the referring court, that, under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly appointed judges, thereby excluding judges already serving in the Sąd Najwyższy (Supreme Court).151Third, it should be made clear that, although established as a chamber of the Sąd Najwyższy (Supreme Court), the Disciplinary Chamber appears, by contrast to the other chambers of that court, and as is clear inter alia from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court.152Although any one of the various facts referred to in paragraphs 147 to 151 above is indeed not capable, per se and taken in isolation, of calling into question the independence of a chamber such as the Disciplinary Chamber, that may, by contrast, not be true once they are taken together, particularly if the abovementioned assessment as regards the KRS were to find that that body lacks independence in relation to the legislature and the executive.153Thus, the referring court will need to assess, in the light, where relevant, of the reasons and specific objectives alleged before it in order to justify certain of the measures in question, whether, taken together, the factors referred to in paragraphs 143 to 151 above and all the other relevant findings of fact which it will have made are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the Disciplinary Chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.154If the referring court were to conclude that that is the case, it would follow that such a court does not meet the requirements arising from Article 47 of the Charter and from Article 9(1) of Directive 2000/78 on account of its not being an independent and impartial tribunal, within the meaning of the former provision.155If that is the case, the referring court also wishes to know whether the principle of the primacy of EU law requires it to disapply those provisions of national law which confer jurisdiction to rule on the cases in the main proceedings on that court.156For the purposes of answering that question, it should be noted that EU law is characterised by the fact that it stems from an independent source of law, namely the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions that are applicable to their nationals and to the Member States themselves. Those essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the European Union and its Member States reciprocally as well as binding the Member States to one another (Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 109 and the case-law cited).157The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 53 and the case-law cited).158That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 54 and the case-law cited).159In that regard, it should, inter alia, be pointed out that the principle that national law must be interpreted in conformity with EU law, by virtue of which the national court is required, to the greatest extent possible, to interpret national law in conformity with the requirements of EU law, is inherent in the system of the treaties, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 55 and the case-law cited).160It is also in the light of the primacy principle that, where it is impossible for it to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 58 and the case-law cited).161In that regard, any national court, hearing a case within its jurisdiction, has, as a body of a Member State, more specifically the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 61 and the case-law cited).162As regards Article 47 of the Charter, it is clear from the case-law of the Court that that provision is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56).163The same applies to Article 9(1) of Directive 2000/78 in so far as, as has been stated in paragraph 80 above, by providing that the Member States are to ensure that all persons who consider themselves wronged by a failure to apply the principle of equal treatment enshrined in that directive to them may enforce their rights, that provision expressly reaffirms the right to an effective remedy in the relevant field. In applying Directive 2000/78, the Member States are required to comply with Article 47 of the Charter and the characteristics of the remedy provided for in Article 9(1) of the directive must be determined in a manner that is consistent with Article 47 of the Charter (see, by analogy, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraphs 55 and 56).164Consequently, in the situation referred to in paragraph 160 above, the national court is required to ensure within its jurisdiction the judicial protection for individuals flowing from Article 47 of the Charter and from Article 9(1) of Directive 2000/78, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 79).165A provision of national law which granted exclusive jurisdiction to hear and rule on a case in which an individual pleads, as in the present cases, an infringement of rights arising from rules of EU law in a particular court which does not meet the requirements of independence and impartiality arising from Article 47 of the Charter would deprive that individual of any effective remedy within the meaning of that article and of Article 9(1) of Directive 2000/78, and would fail to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter (see, by analogy, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 72).166It follows that, where it appears that a provision of national law reserves jurisdiction to hear cases, such as those in the main proceedings, to a court which does not meet the requirements of independence or impartiality under EU law, in particular, those of Article 47 of the Charter, another court before which such a case is brought has the obligation, in order to ensure effective judicial protection, within the meaning of Article 47, in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, to disapply that provision of national law, so that that case may be determined by a court which meets those requirements and which, were it not for that provision, would have jurisdiction in the relevant field, namely, in general, the court which had jurisdiction, in accordance with the law then in force, before the entry into force of the amending legislation which conferred jurisdiction on the court which does not meet those requirements (see, by analogy, judgments of 22 May 2003, Connect Austria, C‑462/99, EU:C:2003:297, paragraph 42, and of 2 June 2005, Koppensteiner, C‑15/04, EU:C:2005:345, paragraphs 32 to 39).167Furthermore, as regards Articles 2 and 19 TEU, provisions on which the referring court has also referred questions to the Court, it must be borne in mind that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 47 and the case-law cited).168The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law which is now enshrined in Article 47 of the Charter, so that the former provision requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of the latter provision, in the fields covered by EU law (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraphs 49 and 54 and the case-law cited).169In those circumstances, it does not appear necessary to conduct a distinct analysis of Article 2 and the second subparagraph of Article 19(1) TEU, which can only reinforce the conclusion already set out in paragraphs 153 and 154 above, for the purposes of answering the questions posed by the referring court and of disposing of the cases before it.170Lastly, it is also not necessary, in the present cases, for the Court to interpret Article 267 TFEU, to which the referring court also refers in its questions. In the order for reference, that court has provided no reasons as to why an interpretation of that article could be relevant for the purposes of resolving the points which it is called on to address in the actions in the main proceedings. In addition, in any event, it is clear that the interpretation of Article 47 of the Charter and of Article 9(1) of Directive 2000/78 given in paragraphs 114 to 154 above is sufficient for the purposes of providing a response capable of instructing the referring court in relation to the decisions which it is called on to make in those cases.171In the light of all of the foregoing considerations, the answer to the second and third questions referred in Cases C‑624/18 and C‑625/18 is:Article 47 of the Charter and Article 9(1) of Directive 2000/78 must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field. Costs 172Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. It is no longer necessary to answer questions referred by the Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court, Poland) in Case C‑585/18 or the first question referred by the same court in Cases C‑624/18 and C‑625/18. 2. The answer to the second and third questions referred by the referring court in Cases C‑624/18 and C‑625/18 is as follows: Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field. [Signatures]( *1 ) Language of the case: Polish.( i ) The wording of paragraph 115 and operative part 2 of this judgment has been amended since it was first put online. | b8d4c-0ade05f-48ce | EN |
According to Advocate General Saugmandsgaard Øe, imprisonment cannot be used against the public officials responsible, including the Minister-President, in order to compel them to introduce traffic bans on diesel vehicles in Munich | 19 December 2019 ( *1 )(Reference for a preliminary ruling — Environment — Article 6, the first paragraph of Article 47 and Article 52(1) of the Charter of Fundamental Rights of the European Union — Directive 2008/50/EC — Atmospheric pollution — Ambient air quality — Air quality plan — Limit values for nitrogen dioxide — Obligation to adopt appropriate measures to ensure that any exceedance period is very short — Obligation on the national courts to take any necessary measure — Refusal of a regional government to comply with an injunction — Coercive detention contemplated in respect of senior political representatives or senior officials of the region concerned — Effective judicial protection — Right to liberty of the person — Legal basis — Proportionality)In Case C‑752/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria, Germany), made by decision of 9 November 2018, received at the Court on 3 December 2018, in the proceedings Deutsche Umwelthilfe eV v Freistaat Bayern, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal, M. Vilaras, E. Regan, M. Safjan (Rapporteur), S. Rodin, L.S. Rossi, I. Jarukaitis, Presidents of Chambers, E. Juhász, D. Šváby, C. Vajda, F. Biltgen, K. Jürimäe and A. Kumin, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 3 September 2019,after considering the observations submitted on behalf of:–Deutsche Umwelthilfe eV, by R. Klinger, Rechtsanwalt,Freistaat Bayern, by J. Vogel, W. Brechmann and P. Frei, acting as Agents,the German Government, by S. Eisenberg, acting as Agent,the European Commission, by F. Erlbacher, G. Gattinara and E. Manhaeve, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 14 November 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of the first sentence of Article 9(4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’), of Articles 4(3) and 19(1) TEU, of Article 197(1) TFEU and of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).2The request has been made in proceedings between Deutsche Umwelthilfe eV, a non-governmental organisation promoting environmental protection, and Freistaat Bayern (the Land of Bavaria, Germany) concerning the enforcement of an injunction requiring the adoption of traffic bans in order to comply with the obligations flowing from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1). Legal context International law 3Article 9 of the Aarhus Convention, headed ‘Access to justice’, provides:‘…2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned:(a)having a sufficient interest or, alternatively,(b)maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5), shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.…3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this Article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.…’ EU law 4Recital 2 of Directive 2008/50 states:‘In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account relevant World Health Organisation standards, guidelines and programmes.’5Article 4 of Directive 2008/50 provides:‘Member States shall establish zones and agglomerations throughout their territory. Air quality assessment and air quality management shall be carried out in all zones and agglomerations.’6Article 13 of Directive 2008/50, headed ‘Limit values and alert thresholds for the protection of human health’, provides in paragraph 1:‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.In respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein.Compliance with these requirements shall be assessed in accordance with Annex III.7Article 23(1) of Directive 2008/50 states:‘Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.Those air quality plans shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24. Those plans shall be communicated to the Commission without delay, but no later than two years after the end of the year the first exceedance was observed.8Annex XI to Directive 2008/50 is headed ‘Limit values for the protection of human health’. Section B thereof sets limit values per pollutant in terms of its concentration in ambient air, measured in different time periods. So far as concerns nitrogen dioxide, Annex XI provides:Averaging periodLimit valueMargin of toleranceDate by which limit value is to be metOne hour200 μg/m3, not to be exceeded more than 18 times a calendar year… 0% by 1 January 20101 January 2010Calendar year40 μg/m3 German law 9The first sentence of Article 104(1) of the Grundgesetz (Basic Law) provides:‘Liberty of the person may be restricted only pursuant to a formal law and in accordance with the procedures prescribed therein.’10The first sentence of Paragraph 167(1) of the Verwaltungsgerichtsordnung (Code of Procedure before the Administrative Courts; ‘the VwGO’) provides:‘Save where this Law otherwise provides, Book 8 of the Zivilprozessordnung [Code of Civil Procedure] shall apply, mutatis mutandis, to enforcement.’11According to the explanations provided by the referring court, Paragraph 172 of the VwGO is such a provision providing otherwise which, in accordance with the introductory words of the first sentence of Paragraph 167(1) of the VwGO, precludes, in principle, application of the enforcement provisions in Book 8 of the Zivilprozessordnung (Code of Civil Procedure; ‘the ZPO’). Paragraph 172 states:‘If, in cases falling within the second sentence of Paragraph 113(1), Paragraph 113(5), and Paragraph 123, the authority fails to comply with the obligation imposed on it in the judgment or interim order, the court of first instance may, upon application, impose by order a suspended financial penalty of up to EUR 10000, payable in default of compliance within the period determined by the court, declare, in the event of such default, that the financial penalty has become payable, and enforce it of its own motion. Such suspended penalties may be imposed, declared payable and enforced more than once in respect of the same obligation.’12Paragraph 888(1) and (2) of the ZPO is worded as follows:‘1. If an act cannot be carried out by a third party, and depends exclusively on the will of the debtor, the court of first instance hearing the case shall find, upon application, that the debtor is to be enjoined to carry out the act by means of a coercive financial penalty and, if this cannot be recovered, by means of coercive detention, or solely by means of coercive detention. Each financial penalty may not exceed EUR 25000 in amount. The provisions of Chapter 2 relating to detention shall apply mutatis mutandis to coercive detention.2. No advance warning shall be given of such coercive measures.’13Paragraph 890(1) and (2) of the ZPO provides:‘1. If the debtor breaches his obligation to desist from an action or to tolerate an action, the court of first instance hearing the case shall, upon application by the creditor, impose upon the debtor, in respect of each breach, the penalty of payment of a civil fine and, if this cannot be recovered, coercive detention, or of coercive detention of up to six months. Each fine may not exceed EUR 250000 in amount, and the coercive detention may not exceed a total of two years.2. The order against the debtor must be preceded by a corresponding warning which, unless it is contained in the judgment setting out the obligation, shall be issued, upon application, by the court of first instance hearing the case.’ The dispute in the main proceedings and the question referred for a preliminary ruling 14It is apparent from the order for reference that the limit value for nitrogen dioxide (NO2) set by the second subparagraph of Article 13(1) of Directive 2008/50 in conjunction with Section B of Annex XI thereto, namely 40 μg/m3 on average over a calendar year, has been exceeded, sometimes to a very considerable extent, at numerous locations on several kilometres of road within the city of Munich (Germany).15In an action brought by Deutsche Umwelthilfe, the Verwaltungsgericht München (Administrative Court, Munich, Germany) enjoined the Land of Bavaria, by judgment of 9 October 2012, to amend the air quality action plan applicable in respect of the city of Munich, which is an ‘air quality plan’ within the meaning of Article 23 of Directive 2008/50, in such a way as to include the measures necessary in order for the limit value set for nitrogen dioxide to be complied with in that city as soon as possible. That judgment has become final.16By order of 21 June 2016, the Verwaltungsgericht München (Administrative Court, Munich) threatened the Land of Bavaria with a financial penalty of EUR 10000 if it did not comply with that injunction within one year from service of the order. In the appeal against that order, the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria, Germany), by order of 27 February 2017, threatened the Land of Bavaria with financial penalties in an amount of EUR 2000 to EUR 4000 if it did not take the measures necessary to comply with the limit values set by Directive 2008/50, including the imposition of traffic bans in respect of certain diesel vehicles in various urban zones. That order has also become final.17Since the Land of Bavaria did not comply in full with the obligations flowing from the order of 27 February 2017, the Verwaltungsgericht München (Administrative Court, Munich), upon application of Deutsche Umwelthilfe, required the Land of Bavaria, by order of 26 October 2017, to pay a financial penalty in the sum of EUR 4000. The Land of Bavaria did not appeal against that order and paid that sum.18Subsequently, the Land of Bavaria still did not comply in full with the terms of the injunction granted against it by the order of 27 February 2017. On the contrary, representatives of the Land of Bavaria, including its Minister-President, publicly stated their intention not to comply with the aforementioned obligations relating to the imposition of traffic bans.19By orders of 28 January 2018, the Verwaltungsgericht München (Administrative Court, Munich), upon application of Deutsche Umwelthilfe, required payment by the Land of Bavaria of a financial penalty in the sum of EUR 4000 because it had failed to comply with a point of the operative part of the order of 27 February 2017, and threatened to impose upon it an additional financial penalty of the same amount if it did not comply, within a fresh period, with another point of the operative part of that order. On the other hand, that court dismissed, in particular, the application for coercive detention of the Minister for the Environment and Consumer Protection of the Land of Bavaria or, failing this, of its Minister-President. The Land of Bavaria appealed against the orders of 28 January 2018 to the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria), which dismissed the appeals by order of 14 August 2018.20However, the appeal lodged by Deutsche Umwelthilfe against the order of 28 January 2018, by which its application for coercive detention was dismissed, is still pending before the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria). According to the referring court, there is no reason to expect that the Land of Bavaria will comply with the order of 27 February 2017 by adopting the traffic bans at issue.21The referring court states that, where the executive demonstrates so clearly its determination not to comply with certain judicial decisions, the view must be taken that the setting and payment of fresh financial penalties, of a higher amount, are not liable to alter that conduct. Indeed, payment of a financial penalty does not result in any economic loss for the Land of Bavaria. On the contrary, the financial penalty is paid by entering the amount fixed by the court as a debit item under a given heading of the budget of the Land concerned and crediting the same amount to its central funds.22The referring court takes the view that, although, in principle, it could be conceivable to ensure compliance with the obligations and judicial decisions at issue by ordering the coercive detention of certain members of the government of Upper Bavaria (Germany), the Minister for the Environment and Consumer Protection of the Land of Bavaria or the Minister-President of that Land, for reasons of constitutional law that instrument, provided for by the ZPO, is not applicable here.23Whilst, under the first sentence of Paragraph 167(1) of the VwGO, the measures provided for in Book 8 of the ZPO, including coercive detention, may be applied save where the VwGO otherwise provides, Paragraph 172 of the VwGO is such a provision that provides otherwise, precluding application of the enforcement measures set out in Book 8 of the ZPO.24The referring court acknowledges that the Bundesverfassungsgericht (Federal Constitutional Court, Germany) has previously held that the administrative courts are, in principle, under a duty to take the view, where appropriate, that they are not bound by the restrictions resulting from Paragraph 172 of the VwGO.25Nevertheless, according to the referring court, if the coercive detention of office holders involved in the exercise of official authority were ordered on the basis of Paragraph 888 of the ZPO, that would be tantamount to failing to have regard to the requirement, stated by the Bundesverfassungsgericht (Federal Constitutional Court) in its order of 13 October 1970, that the intention of the legislature when it adopted a provision which is used as the legal basis for a deprivation of liberty must have encompassed the objective for the fulfilment of which that provision is now applied. According to the referring court, in the light of the history of Paragraph 888 of the ZPO, the requirement thereby set is not met so far as concerns office holders involved in the exercise of official authority.26The referring court is nevertheless uncertain whether EU law demands a different assessment of the legal situation at issue in the main proceedings.27It states that, if the ordering of coercive detention in a situation such as that at issue in the main proceedings is required under EU law, the German courts are not permitted to take account of the obstacle that the aforementioned constitutional case-law represents.28In those circumstances, the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Arethe requirement laid down in the second subparagraph of Article 4(3) [TEU], according to which the Member States must take any appropriate measure to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union,the principle of effective implementation of EU law by the Member States, which is established in, inter alia, Article 197(1) [TFEU],the right to an effective remedy guaranteed by the first paragraph of Article 47 of the [Charter],the obligation devolving on the Contracting States to ensure effective remedies in environmental matters, which arises from the first sentence of Article 9(4) of the [Aarhus Convention],the obligation devolving on the Member States to ensure effective legal protection in the fields covered by EU law, which is established in the second subparagraph of Article 19(1) TEU,to be interpreted as meaning that a German court is entitled — and possibly even obliged — to impose coercive detention on office holders involved in the exercise of the official authority … of a German Federal Land in order thereby to enforce the obligation of that Federal Land to update an air quality plan, within the meaning of Article 23 of Directive [2008/50], with specific minimum content if that Federal Land has been ordered, by way of a final judgment, to carry out an update having that specific minimum content, andthe Federal Land has been threatened with and subjected to financial penalties on several occasions without success,threats of financial penalties and the imposition of financial penalties do not result in a significant persuasive effect even if higher amounts than before are threatened and imposed, for the reason that the payment of penalties does not involve actual losses for the Federal Land against which a final judgment has been given, but rather, in this respect, there is merely a transfer of the amount imposed in each case from one accounting item within the Land’s budget to another accounting item within the Land’s budget,the Federal Land against which a final judgment has been given has stated to the courts and publicly — inter alia before parliament via its most senior political office-holder — that it will not fulfil the judicially imposed obligations in connection with air quality planning,while national law does in principle provide for the instrument of coercive detention for the purpose of enforcing judicial decisions, case-law of the national constitutional court precludes the application of the relevant provision to a situation of the nature involved here, andfor a situation of the nature involved here, national law does not provide for coercive instruments that are more expedient than threats and imposition of financial penalties but are less invasive than detention, and recourse to such coercive instruments does not come into consideration from a substantive point of view either?’ Consideration of the question referred 29By its question, the referring court seeks, in essence, to ascertain whether EU law, in particular the first paragraph of Article 47 of the Charter, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50, EU law empowers or even obliges the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority.30According to the referring court, this question arises in the context of the Court of Justice’s case-law according to which, where a Member State has failed to comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by Article 22 of the directive, it is for the national court having jurisdiction, should a case be brought before it, to take, in regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the directive in accordance with the conditions laid down by the latter (judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 58).31In the present instance, the referring court, applying that case-law, has already ordered the Land of Bavaria to adopt traffic bans in respect of certain diesel vehicles in various urban zones of the city of Munich, in order for the limit value for nitrogen dioxide set in Section B of Annex XI to Directive 2008/50 to be complied with as soon as possible.32In view of the Land of Bavaria’s refusal to comply with that injunction, which has become final, the main proceedings relate specifically to an application by Deutsche Umwelthilfe for that injunction to be enforced by ordering the coercive detention of the Minister for the Environment and Consumer Protection of the Land of Bavaria or, failing that, of its Minister-President.33In that regard, it should be noted, in the first place, that, in the absence of harmonisation of national enforcement mechanisms, the details of their implementation are governed by the internal legal order of the Member States by virtue of the principle of procedural autonomy of those States. Nevertheless, the means of implementation must meet two conditions, namely that they are no less favourable than those governing similar domestic actions (principle of equivalence) and that they do not make it impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 26 June 2019, Kuhar, C‑407/18, EU:C:2019:537, paragraph 46 and the case-law cited).34In the second place, when the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter (judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 69), a provision which constitutes a reaffirmation of the principle of effective judicial protection. In the case of actions intended to secure compliance with environmental law, in the particular on the initiative of environmental protection associations as in the main proceedings, that right to an effective remedy is also enshrined in Article 9(4) of the Aarhus Convention.35According to the Court’s case-law, national legislation which results in a situation where the judgment of a court remains ineffective because that court does not have any means of securing observance of the judgment fails to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter (see, to that effect, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 72).36That right would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain ineffective to the detriment of one party (judgments of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 43 and the case-law cited, and of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, point 57).37More specifically, according to the case-law of the European Court of Human Rights which relates to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 — and in the light of which Article 47 of the Charter should be interpreted (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 41 and the case-law cited) — the fact that the public authorities do not comply with a final, enforceable judicial decision deprives that provision of all useful effect (see, to that effect, ECtHR, 19 March 1997, Hornsby v. Greece, CE:ECHR:1997:0319JUD001835791, §§ 41 and 45).38The right to an effective remedy is all the more important because, in the field covered by Directive 2008/50, failure to adopt the measures required by that directive would endanger human health (see, by analogy, judgment of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraph 38).39In addition, in order to ensure effective judicial protection in the fields covered by EU environmental law, it is for the national court to interpret its national law in a way which, to the fullest extent possible, is consistent both with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention and with the objective of effective judicial protection of the rights conferred by EU law (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraphs 50 and 51).40To that end, it is incumbent upon the national court to ascertain, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by that law, whether it can arrive at an interpretation of domestic law that would enable it to apply effective coercive measures in order to ensure that the public authorities comply with a judgment that has become final, such as, in particular, high financial penalties that are repeated after a short time and the payment of which does not ultimately benefit the budget from which they are funded.41That said, in the present instance the referring court considers that it cannot secure compliance with the principle of the effectiveness of EU law and the right to an effective remedy unless EU law empowers or even obliges it to disregard the reasons of a constitutional nature which, in its view, prevent the application of coercive detention to office holders involved in the exercise of official authority.42In that regard, it should be recalled that, where it is unable to interpret national law in compliance with the requirements of EU law, the national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 21, and of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 58 and 61).43Nevertheless, that case-law of the Court cannot be understood as meaning that the principle of effectiveness of EU law and observance of the right, guaranteed by the first paragraph of Article 47 of the Charter, to effective judicial protection oblige the national court to disapply a provision of national law or not to follow the only interpretation of that provision which seems to it to accord with the national constitution if, in so doing, it infringes another fundamental right guaranteed by EU law.44Indeed, and as is apparent from Article 52(1) of the Charter, the right to effective judicial protection is not an absolute right and may be restricted, in particular in order to protect the rights and freedoms of others. A coercive measure such as coercive detention entails a limitation on the right to liberty, guaranteed by Article 6 of the Charter.45In order to answer the question referred for a preliminary ruling, it is accordingly necessary, in the third place, to weigh against one another the fundamental rights at issue in the light of the requirements laid down in the first sentence of Article 52(1) of the Charter.46As regards the requirements that the legal basis for a limitation on the right to liberty must satisfy, the Court has already stated, in the light of the judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v. Spain (CE:ECHR:2013:1021JUD004275009), that a law empowering a court to deprive a person of his or her liberty must, so as to meet the requirements of Article 52(1) of the Charter, be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness (judgment of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraphs 38 and 40).47Those conditions apply in respect of any type of deprivation of liberty, including where it results from the need to enforce a penalty imposed by a judicial decision, irrespective of the possibility for the person concerned of avoiding the deprivation of liberty by complying with an injunction imposed by that decision or an earlier decision.48Whilst it is apparent from the oral argument at the hearing before the Court that doubts remain as to whether the conditions that would allow the coercive detention provided for by German law to be ordered in respect of office holders involved in the exercise of official authority are fulfilled, it is for the referring court alone to determine whether the relevant national provisions are, in the light of their wording and substance, sufficiently accessible, precise and foreseeable in their application and thus enable all risk of arbitrariness to be avoided.49If that is not so, the national court cannot order coercive detention solely on the basis of the principle of effectiveness and of the right to effective judicial protection. Any limitation on the right to liberty must be provided for by a law that meets the requirements recalled in paragraph 46 of the present judgment.50As regards the requirements stemming from the principle of proportionality, it is to be borne in mind that, where several fundamental rights are at issue, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights, striking a fair balance between them (see, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 60 and the case-law cited).51As the Advocate General has observed in point 86 of his Opinion, since the ordering of coercive detention entails a deprivation of liberty, recourse may be had to such an order only where there is no less restrictive measure that enables the objective pursued to be attained. It is therefore for the referring court to determine whether national law governing enforcement can be interpreted in conformity with the right to effective judicial protection, to the effect that it would authorise the referring court to adopt measures that do not impinge upon the right to liberty, such as those referred to in paragraph 40 of the present judgment.52It is only if the referring court were to conclude that, in the context of the balancing exercise referred to in paragraph 45 of the present judgment, the limitation on the right to liberty which would result from coercive detention being ordered complies with the conditions laid down in that regard in Article 52(1) of the Charter that EU law would not only authorise, but require, recourse to such a measure.53It should also be pointed out that the foregoing reasoning is without prejudice, in particular, to the possibility that an infringement of Directive 2008/50 such as that identified by the referring court as giving rise to the dispute in the main proceedings may be found by the Court in an action for failure to fulfil obligations under EU law.54Furthermore, it should be remembered that the full effectiveness of EU law and effective protection of the rights which individuals derive from it may, where appropriate, be ensured by the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible, as that principle is inherent in the system of the treaties on which the European Union is based (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 20, 39 and 52, and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 18 and the case-law cited).55That principle applies to any case in which a Member State breaches EU law, whichever public authority is responsible for the breach (judgment of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 19 and the case-law cited).56In the light of all the foregoing, the answer to the question referred is that EU law, in particular the first paragraph of Article 47 of the Charter, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure. Costs 57Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure. [Signatures]( *1 ) Language of the case: German. | 51753-fa7f2c2-4272 | EN |
Ireland is ordered to pay pecuniary penalties for failing to comply with an earlier judgment of the Court which required, in particular, that an environmental assessment be carried out in respect of a wind farm | 12 November 2019 ( *1 )(Failure of a Member State to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Directive 85/337/EEC — Consent for, and construction of, a wind farm — Project likely to have significant effects on the environment — Absence of a prior environmental impact assessment — Obligation to regularise — Article 260(2) TFEU — Application for an order to pay a penalty payment and a lump sum)In Case C‑261/18,ACTION under Article 260(2) TFEU for failure to fulfil obligations, brought on 13 April 2018, European Commission, represented by M. Noll-Ehlers and J. Tomkin, acting as Agents,applicant,v Ireland, represented by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by J. Connolly and G. Simons, Senior Counsel, and G. Gilmore, Barrister-at-Law,defendant,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot (Rapporteur), A. Arabadjiev, A. Prechal, M. Safjan and S. Rodin, Presidents of Chambers, L. Bay Larsen, T. von Danwitz, C. Toader, F. Biltgen, K. Jürimäe and C. Lycourgos, Judges,Advocate General: G. Pitruzzella,Registrar: R. Şereş, administrator,having regard to the written procedure and further to the hearing on 1 April 2019,after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,gives the following Judgment 1By its application, the European Commission claims that the Court should:–declare that, by failing to take the necessary measures to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) as regards the second indent of point 1 of the operative part thereto, Ireland has failed to fulfil its obligations under Article 260 TFEU;order Ireland to pay the Commission a lump sum of EUR 1 343.20 multiplied by the number of days between the delivery of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) and, either the date of compliance by Ireland with that judgment, or the date of the judgment delivered in the present case if that date is sooner than the date of compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), with a minimum lump sum of EUR 1685000;order Ireland to pay the Commission a penalty payment of EUR 12264 per day from the date of the judgment delivered in the present case to the date of compliance by Ireland with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380); andorder Ireland to pay the costs. Legal context Directive 85/337/EEC before amendment by Directive 97/11 2Article 2(1),(2) and (3), first subparagraph, of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) provided:‘1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects.These projects are defined in Article 4.2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.3. Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.’3Article 3 of that directive provided:‘The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with the Articles 4 to 11, the direct and indirect effects of a project on the following factors:human beings, fauna and flora,soil, water, air, climate and the landscape,the inter-action between the factors mentioned in the first and second indents,material assets and the cultural heritage.’4Article 4 of that directive was worded as follows:‘1. Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10.’5Article 5 of Directive 85/337 provided:‘1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex III inasmuch as:(a)the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected;(b)the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.2. The information to be provided by the developer in accordance with paragraph 1 shall include at least:a description of the project comprising information on the site, design and size of the project,a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,the data required to identify and assess the main effects which the project is likely to have on the environment,a non-technical summary of the information mentioned in indents 1 to 3.3. Where they consider it necessary, Member States shall ensure that any authorities with relevant information in their possession make this information available to the developer.’6Article 6 of Directive 85/337 was worded as follows:‘1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent. Member States shall designate the authorities to be consulted for this purpose in general terms or in each case when the request for consent is made. The information gathered pursuant to Article 5 shall be forwarded to these authorities. Detailed arrangements for consultation shall be laid down by the Member States.2. Member States shall ensure that:any request for development consent and any information gathered pursuant to Article 5 are made available to the public,the public concerned is given the opportunity to express an opinion before the project is initiated.…’7Article 7 of that directive provided:‘Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall forward the information gathered pursuant to Article 5 to the other Member State at the same time as it makes it available to its own nationals. Such information shall serve as a basis for any consultations necessary in the framework of the bilateral relations between two Member States on a reciprocal and equivalent basis.’8Under Article 8 of Directive 85/337:‘Information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure.’9Article 9 of that directive was worded as follows:‘When a decision has been taken, the competent authority or authorities shall inform the public concerned of:the content of the decision and any conditions attached thereto,the reasons and considerations on which the decision is based where the Member States’ legislation so provides.The detailed arrangements for such information shall be determined by the Member States.If another Member State has been informed pursuant to Article 7, it will also be informed of the decision in question.’10Article 10 of Directive 85/337 provided:‘The provisions of this Directive shall not affect the obligation on the competent authorities to respect the limitations imposed by national regulations and administrative provisions and accepted legal practices with regard to industrial and commercial secrecy and the safeguarding of the public interest.Where Article 7 applies, the transmission of information to another Member State and the reception of information by another Member State shall be subject to the limitations in force in the Member State in which the project is proposed.’11Annex II to Directive 85/337 listed the projects subject to Article 4(2) of that directive, namely those for which an environmental impact assessment was necessary only where the Member States considered that their characteristics so required. The projects referred to in point 2(a) of that annex were accordingly for the extraction of peat, and in point 2(c) of that annex, for the extraction of minerals other than metalliferous and energy-producing minerals, such as marble, sand, gravel, shale, salt, phosphates and potash. Directive 85/337 following amendment by Directive 97/11 12Article 2(1),(2) and (3), first subparagraph, of Directive 85/337/EEC, as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) provides:‘1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.…3. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.’13Article 3 of that directive provides:‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:human beings, fauna and flora;soil, water, air, climate and the landscape;material assets and the cultural heritage;the interaction between the factors mentioned in the first, second and third indents.’14Article 4 of that directive provides:‘1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:a case-by-case examination,orthresholds or criteria set by the Member State,whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.Member States may decide to apply both procedures referred to in (a) and (b).3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.’15Point 3(i) of Annex II to that directive refers to installations for the harnessing of wind power for energy production (wind farms).16Pursuant to point 13 of Annex II, any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment, must be regarded as a project falling within the scope of Article 4(2) of Directive 85/337.17Annex III to Directive 85/337, relating to the selection criteria referred to in Article 4(3) of that directive, states that the characteristics of projects must be considered in relation, inter alia, to pollution and nuisances, and to the risk of accidents having regard in particular to technologies used. That annex also states that the environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard, inter alia, to the absorption capacity of the natural environment, paying particular attention to certain areas, including mountain and forest areas. The judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) 18In its judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), the Court held that, by failing to adopt all measures necessary to ensure that:projects which are within the scope of Directive 85/337, either before or after amendment by Council Directive 97/11 (‘Directive 85/337’) are, before they are executed in whole or in part, first, considered with regard to the need for an environmental impact assessment and, secondly, where those projects are likely to have significant effects on the environment by virtue of their nature, size or location, that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337, andthe development consents given for, and the execution of, wind farm developments and associated works at Derrybrien, County Galway (Ireland), were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of that directive,Ireland failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of Directive 85/337.19As regards the second complaint relating to the absence of an assessment of the effects of the wind farm and the associated works at Derrybrien (‘the wind farm’), the Court concluded that there was a failure to fulfil obligations on the grounds set out in paragraphs 94 to 111 of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).20In particular, as regards the first two phases of construction of the wind farm project, the Court stated, in paragraph 98 of that judgment, that Ireland was bound to subject the projects relating to that construction to an impact assessment if they were likely to have significant effects on the environment, by virtue, inter alia, of their nature, size or location.21In that regard, the Court held, in paragraph 103 of that judgment, that the location and size of the projects of peat and mineral extraction and road construction, and the proximity of the site to a river, constituted specific characteristics which demonstrated that those projects, which were inseparable from the installation of 46 wind turbines, were likely to have significant effects on the environment and, accordingly, had to be subject to an assessment of their effects on the environment.22In addition, as regards the application for consent relating to the third phase of construction of the wind farm and for alteration of the first two phases of construction originally authorised, the Court found, in paragraph 110 of that judgment, that since the installation of 25 new turbines, the construction of new service roadways and the change in the type of wind turbines initially authorised — which was intended to increase the production of electricity — were projects which were likely to have significant effects on the environment, they should, before being authorised, have therefore been subject to a requirement for development consent and to an assessment of their effects on the environment, in conformity with the conditions laid down in Articles 5 to 10 of Directive 85/337. Pre-litigation procedure and proceedings before the Court 23Following the delivery of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), the Commission, by letter dated 15 July 2008, requested Ireland to provide it, within 2 months of the date of that judgment, with information on the measures taken in order to comply with the terms of that judgment. By letter dated 3 September 2008, Ireland confirmed in particular that it fully accepted the judgment and that an updated environmental impact assessment, in compliance with Directive 85/337, was anticipated before the end of 2008.24By letters of 10 March and 17 April 2009, and further to a meeting with the Commission, Ireland informed the latter that it was drafting a bill in order to introduce a regularisation procedure which, in exceptional cases, would allow for consents granted in breach of Directive 85/337 to be regularised through the grant of ‘substitute consent’ and that, in accordance with that procedure, the wind farm operator would apply for such consent.25On 26 June 2009, the Commission sent a letter of formal notice to that Member State, in which it stated, first, that it had received only a preliminary outline of the legislation to be enacted by Ireland in order to ensure compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), and, secondly, that it was still awaiting information on the envisaged assessment of the wind farm’s effects on the environment. On 9 September 2009, Ireland replied to that letter of formal notice, confirming, first, that the legislative change introducing the substitute consent procedure would shortly be enacted and that the wind farm operator had agreed in principle to apply for substitute consent.26On 22 March 2010, the Commission sent a further letter of formal notice to Ireland requesting it to submit observations to the Commission within 2 months of receipt of that letter. Ireland replied by letters dated 18 May 2010, 22 July 2010 and 13 September 2010. In the letter of 13 September 2010, the Irish authorities informed the Commission of the enactment in July 2010 of the Planning and Development (Amendment) Act 2010 (‘the PDAA’). Part XA of the PDAA, in particular Sections 177B and 177C thereto, provides for a regularisation procedure for consents granted in breach of the obligation to conduct an environmental impact assessment.27Following further contacts between the Irish authorities and the Commission and the notification by Ireland of additional legislative measures adopted between 2010 and 2012, the Commission, by letter of 19 September 2012, requested Ireland to inform it in particular whether the developer of the wind farm would be subject to that regularisation procedure.28By letter dated 13 October 2012, Ireland stated that the wind farm operator, wholly owned by a semi-public sector company, was refusing to apply the regularisation procedure provided for in Part XA of the PDAA and that neither national nor EU law made provision for its application to be imposed. In particular, EU law, it was claimed, did not require the consents granted for the construction of the wind farm, which had become final, to be called into question and the principles of legal certainty and of the non-retroactive effect of laws, as well as the case-law of the Court on the procedural autonomy of the Member States, precluded the withdrawal of those consents.29By letter of 16 December 2013, the Irish authorities reported to the Commission that the wind farm operator had indicated its willingness to undertake an unofficial, that is non-statutory, environmental impact assessment in respect of that wind farm which would nevertheless conform to the requirements of Directive 85/337.30In the course of 2014, Ireland provided the Commission with a concept document which set out a road map for the non-statutory environmental impact assessment of the wind farm. Ireland also agreed, at a meeting with the Commission held on 13 May 2014, to send it the draft memorandum of understanding which would be concluded between the wind farm operator and the Irish Minister for Environment providing for an agreement on the carrying out of a non-statutory environmental review. Such a draft was provided to the Commission on 11 March 2015, with the Irish authorities communicating a further version of that draft on 7 March 2016.31The Commission stated on several occasions that those documents did not enable Ireland to fulfil its obligations. Following a meeting held on 29 November 2016, the Commission’s services informed the Irish authorities by email on 15 December 2016 that the final text of the signed memorandum of understanding should reach the Commission by the end of 2016, failing which the Commission would refer the matter back to the Court in early 2017.32On 22 December 2016, Ireland sent the Commission a new version of the concept document and a scoping document dated 2 December 2015. In the covering letter, the Irish authorities stated that the two documents were due to be signed at the end of January 2017.33Following further exchanges with the Irish authorities, the Commission informed Ireland, by letter of 26 January 2018, that, notwithstanding the signature of the concept document, it considered that the failure to fulfil the obligation of complying fully with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) persisted. Nine years after that judgment was delivered, no substantive progress had been made as regards the environmental impact assessment of the wind farm.34By letter of 1 February 2018, Ireland acknowledged that discussions on resolution of the case had already been ongoing for a number of years. In that letter, Ireland nonetheless maintained that it had awaited, before taking the measures necessary to comply, the Commission’s observations on the documents that Ireland had sent it by letter of 22 December 2016.35Since it considered that the second indent of point 1 of the operative part of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) had still not been complied with, the Commission brought the present action.36Following the closure of the written part of the procedure in the present case, the Commission informed the Court, by letter lodged at the Registry on 1 April 2019, of a letter from the Irish authorities which it had received on 29 March 2019 (‘the letter of 29 March 2019’) from which it is apparent that the wind farm operator had agreed that it would cooperate in a substitute consent procedure, to be initiated under the PDAA, ‘as soon as possible, so as to ensure [that an ex post environmental impact assessment] is carried out.’ On 1 April 2019, the Irish authorities also sent that letter to the Court Registry. The failure to fulfil obligations Arguments of the parties 37The Commission notes that, in its judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), the Court held, in particular, that Ireland had failed to fulfil its obligations under Directive 85/337 in that it had failed to take all measures necessary to ensure that the development consents given for, and the execution of, the wind farm developments and associated works were preceded by an environmental impact assessment. According to the Commission, Ireland does not deny that it is under an obligation to take positive steps to address that failure.38The Commission submits that it was not for the Court to determine, in that judgment, the specific measures enabling the failure to fulfil obligations declared to be remedied. It is apparent, on the other hand, from the case-law of the Court (judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraphs 64 and 65, and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraphs 42, 43 and 46) that Ireland is required to eliminate the unlawful consequences of the failure to carry out an environmental impact assessment of the wind farm and to take all measures necessary to remedy that failure. In any event, mere preparatory steps, such as those taken in the present case, are insufficient.39In support of its arguments, the Commission also relies on the judgments of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35) and of 28 February 2018, Comune di Castelbellino (C‑117/17, EU:C:2018:129, paragraph 30), which confirm that the competent national authorities are under an obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted, in order to carry out such an assessment. EU law does not preclude regularisation through the conducting of an environmental impact assessment, subject to certain conditions.40During the pre-litigation procedure, Ireland made two different proposals, referred to in paragraphs 24 and 29 above, in order to remedy the failure to assess the wind farm’s impact without, however, giving concrete effect to them.41First, Ireland referred to the possibility of carrying out a non-statutory assessment. However, no specific measure to implement it has been adopted.42Secondly, the Commission submits that Ireland amended its legislation in order to establish a procedure that would allow for the regularisation of consents granted in breach of the obligation to conduct an environmental impact assessment under EU law. However, Ireland now maintains that that procedure, provided for in Part XA of the PDAA, could be applied only prospectively and that, notwithstanding the fact that the wind farm operator is a wholly owned subsidiary of a semi-public sector company, it cannot be required to apply it.43The Commission submits, however, that Ireland is required to revoke or suspend the consents at issue and carry out an ex post remedial assessment, even if those measures affect the wind farm operator’s vested rights. The possibility for a Member State to rely, in that regard, on the principle of procedural autonomy is, in accordance with the judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 40), limited by the principles of effectiveness and equivalence.44In addition, it is apparent from the judgment of 14 June 2007, Medipac-Kazantzidis (C‑6/05, EU:C:2007:337, paragraph 43) that the wind farm operator is subject to the obligations arising from EU directives since it is a wholly owned subsidiary of an entity controlled by the public authorities.45Moreover, the Commission submits that the delay in complying with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), cannot be justified. In accordance with the case-law of the Court (judgment of 9 December 2008, Commission v France, C‑121/07, EU:C:2008:695, paragraph 21), although Article 260 TFEU does not specify the period within which a judgment must be complied with, the process of compliance must be initiated at once and completed as soon as possible. In the present case, neither the complexity of the issues arising nor the alleged breakdown of communications between Ireland and the Commission at the end of 2016 can justify that Member State’s failure to take action over a prolonged period. The Commission further notes that it had stated that December 2016 was the final deadline for complying with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).46In its reply, the Commission submits that Ireland has still not carried out, by way of regularisation, an environmental impact assessment of the wind farm. Consequently, Ireland has not taken the minimum steps required to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).47Ireland contends that the Commission’s action should be dismissed.48It contends that it is apparent from the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) and the pleadings in the case giving rise to that judgment, that the two indents of point 1 of the operative part in that judgment related in fact to one and the same failure to fulfil obligations, namely the failure to transpose in full Directive 85/337. Consequently, apart from transposing that directive, the adoption of specific measures as regards the wind farm was not necessary.49In addition, in its application, the Commission failed to identify the specific measures which it considers Ireland as being required to take in order to comply with the second indent of point 1 of the operative part of that judgment.50Furthermore, that same judgment did not set aside or invalidate the development consents granted between 1998 and 2003 for the wind farm’s construction. Infringement proceedings pursuant to Article 226 EC (now Article 258 TFEU) cannot have any effect on the vested rights of third parties, in particular when those third parties are not heard in those proceedings.51As regards the procedures enabling a national administrative decision to be annulled, they fall within the procedural autonomy of the Member States. The judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380, paragraph 59), confirms that an obligation to remedy a failure to carry out an environmental impact assessment is limited by the procedural framework applicable within each Member State. In Ireland, a development consent may only be set aside by the High Court, on a direct application to that end.52In that regard, it is apparent from the judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882), that, subject to compliance with certain conditions, Member States may establish time limits governing proceedings brought against decisions adopted in the field of town planning. Under Irish procedural law in force prior to the enactment of the PDAA, any challenge seeking to set aside a planning permission was subject to a two-month time limit. The PDAA itself set an eight-week time limit. Consequently, the consents granted for the wind farm’s construction have become final.53Ireland contends that, accordingly, the situation of the present case may be distinguished from those of the cases giving rise to the judgments of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589) and of 28 February 2018, Comune di Castelbellino (C‑117/17, EU:C:2018:129) referred to by the Commission. It is apparent from the summary of the facts in those judgments that the development consents at issue were in fact annulled by a national court. It was in the course of the proceedings subsequent to those annulments, seeking the grant of fresh development consents for the projects concerned, that questions relating to the obligation to carry out an environmental impact assessment were raised.54The present case may also be distinguished from that which gave rise to the judgment of 7 January 2004, Wells (C‑201/02, EU:C:2004:12), delivered in preliminary ruling proceedings in a dispute concerning a national permission which had been challenged within the time limits. The Court states in that judgment that it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended. In addition, in the judgment of 12 February 2008, Kempter (C‑2/06, EU:C:2008:78), the Court confirmed that, where an administrative decision has become final, EU law does not require that a national authority be placed under an obligation, in principle, to reopen that decision.55Furthermore, where planning consents may no longer be subject to judicial review proceedings, the principles of the protection of legitimate expectations and of legal certainty and the property rights of the holders of planning permissions must be respected.56In the present case, the withdrawal of the consents granted, which have become final, would be contrary to the principle of legal certainty. Ireland is not, therefore, required to annul or withdraw them. A fortiori, nor is it required to carry out, ex post facto, an environmental impact assessment on the basis of the relevant provisions of the PDAA.57In the alternative, Ireland contends that it has now complied with the obligations stemming from the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), in that it has taken steps to arrange for a non-statutory assessment to be carried out at Derrybrien. The history of the engagement between Ireland and the Commission, as detailed in the application, demonstrates that the Irish Government has acted in good faith in that regard.58In support of that argument, Ireland contends, in particular, that the Irish Government drew up a concept paper in agreement with the wind farm’s developer. That document provides that the developer will have to prepare an environmental report, in accordance with the scoping document, which will have to include possible mitigation measures. That document also provides that the report will be subject to a form of public consultation process.59The initiation of such a process constitutes sufficient compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), since, contrary to the full transposition of Directive 85/337, which fell entirely under the control of the Irish authorities, the implementation of the assessment of the effects of a project on the environment in fact requires the participation of third parties.60In the further alternative, Ireland contends that it will have complied with its obligations at the latest as of the date of any hearing before the Court in the present case.61In addition, the duration of the procedure necessary to implement the environmental impact assessment of the wind farm is linked to the lack of reaction from the Commission following the submission, on 22 December 2016, of a new version of the concept document intended to prepare for the environmental impact assessment of the wind farm to be carried out. The Irish authorities awaited the formal approval of that document. In any event, a Member State cannot be penalised for taking the time necessary to discern the appropriate measures, for the purposes of complying with a judgment of the Court, or for failing to identify them.62At the hearing, Ireland confirmed that it no longer envisaged carrying out a non-statutory environmental impact assessment in relation to the wind farm. As is apparent from the letter of 29 March 2019, it now maintains that the wind farm operator has agreed that it will cooperate in order for a regularisation procedure under Part XA of the PDAA to be initiated. In the context of that procedure, an environmental impact assessment in accordance with Directive 85/337 will be carried out as soon as possible.63In answer to the questions put by the Court at the hearing, Ireland stated that the formal agreement of the wind farm’s operator was still lacking. In addition, it is not decided whether the latter would itself apply for substitute consent pursuant to Section 177 C of the PDAA, or whether, pursuant to Section 177 B of the PDAA, the competent authorities would themselves commence the regularisation procedure of their own initiative. Findings of the Court Preliminary observations 64In the context of the present action, brought on the basis of Article 260(2) TFEU, the Commission submits that Ireland has not complied with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), as regards the second complaint only, in the second indent of point 1 of the operative part of that judgment. The Court held, in that regard, that by failing to adopt all measures necessary to ensure that the development consents given for, and the execution of, the developments and associated works at the wind farm were preceded by an environmental impact assessment, in accordance with Articles 5 to 10 of Directive 85/337, Ireland failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive. The admissibility of the action 65In so far as Ireland contends, in essence, that the Commission has failed to define the subject matter of its action and to identify the measures that are necessary in order to comply with the second indent of point 1 of the operative part of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), it must be found that it in fact contests the admissibility of the present action.66In that regard, the Commission submits, in its application, that, in order to comply with the second indent of point 1 of the operative part of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), Ireland should eliminate the unlawful consequences of the breach of the obligation to carry out a prior environmental impact assessment of the wind farm and initiate, to that end, a procedure to regularise the project in question. That procedure should include an environmental impact assessment of that project in accordance with the requirements of Directive 85/337.67Consequently, Ireland is mistaken to complain that the Commission has failed to define the measures required to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) and, for that reason, to complain that the Commission has failed to specify sufficiently the subject matter of its action.68It must, therefore, be concluded that Ireland’s contentions are not capable of affecting the admissibility of the present action. The substance 69Ireland contends that the present action is unfounded, arguing that, beyond the transposition of Directive 85/337, the adoption of specific measures as regards the wind farm is unnecessary and that, in particular, it is impossible, under its national law, to withdraw the consents granted to the wind farm’s operator, which have become final.70The Commission submits, on the other hand, that Ireland is required, as recalled in paragraph 66 above, to eliminate the unlawful consequences of the failure to fulfil obligations established and, in the context of a regularisation procedure, to carry out an environmental impact assessment of the wind farm in accordance with the requirements of Directive 85/337.71In those circumstances, it is necessary to examine the obligations on a Member State when a project has been authorised in breach of the obligation to carry out a prior environmental impact assessment under Directive 85/337, in particular where the consent was not challenged within the period prescribed by national law and has, therefore, become final in the national legal order.72In that regard, it should be borne in mind that, under Article 2(1) of Directive 85/337, projects likely to have significant effects on the environment, as referred to in Article 4 of that directive, read in conjunction with Annexes I or II thereto, must be made subject to an assessment with regard to such effects before consent is given (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 42).73The requirement to undertake such an assessment in advance is justified by the fact that it is necessary for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than subsequently trying to deal with their effects (judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 58, and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 33).74However, Directive 85/337 does not contain provisions governing the consequences of a breach of that obligation to carry out a prior assessment (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 34).75Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member States are nevertheless required to eliminate the unlawful consequences of that breach of EU law. That obligation applies to every organ of the Member State concerned and, in particular, to the national authorities which have the obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted, in order to carry out such an assessment (see, to that effect, judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 64, and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35).76As regards the possibility of regularising such an omission a posteriori, Directive 85/337 does not preclude national rules which, in certain cases, permit the regularisation of operations or measures which are unlawful in the light of EU law, provided that such a possibility does not offer the persons concerned the chance to circumvent the rules of EU law or to dispense with their application, and that it should remain the exception (judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraphs 37 and 38).77An assessment carried out in the context of such a regularisation procedure, after a plant has been constructed and has entered into operation cannot be confined to its future impact on the environment, but must also take into account its environmental impact from the time of its completion (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 41).78By contrast, Directive 85/337 precludes national legislation which allows the national authorities, where no exceptional circumstances are proved, to issue regularisation permission which has the same effects as those attached to a prior consent granted after an environmental impact assessment carried out in accordance with Article 2(1) and Article 4(1) and (2) of that directive (see, to that effect, judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 61; of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 37; and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 39).79Directive 85/337 also precludes a legislative measure, which would allow, without even requiring a later assessment and even where no exceptional circumstances are proved, a project which ought to have been subject to an environmental impact assessment, within the meaning of Article 2(1) of Directive 85/337, to be deemed to have been subject to such an assessment (see, to that effect, judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 38).80Similarly, Directive 85/337 precludes projects in respect of which the consent can no longer be subject to challenge before the courts, because the time limit for bringing proceedings laid down in national legislation has expired, from being purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment (judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 43).81In the present case, it is not in dispute that, during a legislative reform in July 2010, Ireland introduced into its legislation a procedure for regularising projects which had been authorised in breach of the obligation to carry out an environmental impact assessment. It is apparent from the file before the Court that the detailed rules for that procedure were laid down in Part XA of the PDAA, the provisions of which were enacted in order to comply with the requirements flowing from the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).82First, according to Section 177 B(1) and (2)(b) of Part XA of the PDAA, where, in particular, by ‘a final judgment of … the Court of Justice of the European Union’, it is held that a permission for a project for which an environmental impact assessment was required was unlawfully granted, the competent planning authority must give notice in writing directing the project manager to apply for substitute consent. Subsection (2)(c) of Section 177 B of Part XA of the PDAA states that the notice is to require the project manager to furnish a remedial environmental impact statement with the application.83Secondly, Section 177 C of Part XA of the PDAA enables, in those same circumstances, the manager of a project authorised in breach of the obligation to carry out a prior environmental impact assessment to apply itself for the regularisation procedure to be initiated. If its application is allowed, the manager must furnish, in accordance with Section 177 D(7)(b) of Part XA of the PDAA, a remedial environmental impact statement.84The fact remains that, as at the reference date for assessing whether there has been a failure to fulfil obligations under Article 260(2) TFEU, namely the expiry of the period prescribed in the letter of formal notice issued under that provision (see, to that effect, judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 67), that is to say, in accordance with the letter of formal notice of 22 March 2010 mentioned in paragraph 26 above, at the end of May 2010, Ireland had failed to carry out a new environmental impact assessment of the wind farm within the context of the regularisation of the consents at issue and thereby failed to have regard to the authority attaching to the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), as regards the second indent of point 1 of the operative part thereto.85Ireland nonetheless argued, at the hearing, that, as regards the consents granted for the construction of the wind farm, it is not ultimately in a position to apply the regularisation procedure of its own initiative. After commencing that procedure pursuant to Section 177 B of Part XA of the PDAA, the local authorities that were responsible in that regard put an end to that procedure. Although those authorities are an emanation of the State, they are independent and therefore fall outside the Irish Government’s control.86Similarly, Ireland contends that it could not require the wind farm operator to apply for substitute consent pursuant to Section 177 C of Part XA of the PDAA. Admittedly, that operator is a wholly owned subsidiary of a semi-public sector entity that is 90% owned by Ireland. However, the operator is independent as regards the daily management of its affairs.87Ireland also contends that the principles of legal certainty and of the protection of legitimate expectations preclude the revocation of an administrative decision, such as the consents at issue in the present case, which because of the expiry of the period for bringing an action, can no longer be the subject of a direct application to a court and has, therefore, become final.88Ireland’s arguments must, however, be rejected.89First of all, the Court points out that, according to settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law (judgments of 2 December 2014, Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 29, and of 24 January 2018, Commission v Italy, C‑433/15, EU:C:2018:31, paragraph 56 and the case-law cited). It follows that Ireland, for the purposes of justifying the failure to comply with the obligations stemming from the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), cannot rely on national provisions limiting the possibilities for commencing a regularisation procedure, such as Section 177 B and Section 177 C of Part XA of the PDAA, a procedure which it introduced into its national legislation specifically in order to ensure compliance with that judgment.90In any event, as regards the alleged impossibility for that Member State to require the competent local authorities to commence the regularisation procedure provided for by the Irish legislation, it must be borne in mind that, according to the case-law cited in paragraph 75 above, every organ of that Member State and, in particular, those local authorities are required to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment of the wind farm.91As regards, next, the wind farm operator’s inaction, or even its refusal to initiate the regularisation procedure pursuant to Section 177 C of Part XA of the PDAA, it suffices to refer, mutatis mutandis, to the considerations set out in paragraph 89 above, since that operator is controlled by Ireland. Consequently, the operator must be considered an emanation of that Member State on which, as the Commission rightly argued, the obligations arising from EU directives are binding (judgment of 14 June 2007, Medipac — Kazantzidis, C‑6/05, EU:C:2007:337, paragraph 43 and the case-law cited).92As regards Ireland’s argument based on the contention that the principle of legal certainty and the principle of the protection of legitimate expectations preclude the consents unlawfully granted to the wind farm’s operator from being withdrawn, it must be borne in mind, first, that the infringement procedure is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation and, secondly, that while the withdrawal of an unlawful measure must occur within a reasonable time and regard must be had to how far the person concerned might have been led to rely on the lawfulness of the measure, the fact remains that such withdrawal is, in principle, permitted (judgment of 4 May 2006, Commission v United Kingdom, C‑508/03, EU:C:2006:287, paragraphs 67 and 68).93Ireland cannot, therefore, rely on legal certainty and legitimate expectations derived by the operator concerned from acquired rights in order to contest the consequences flowing from the objective finding that Ireland has failed to fulfil its obligations under Directive 85/337 with regard to assessment of the effects of certain projects on the environment (see, to that effect, judgment of 4 May 2006, Commission v United Kingdom, C‑508/03, EU:C:2006:287, paragraph 69).94In any event, Ireland simply states that, after the expiry of the period of 2 months, or 8 weeks set by the PDAA, respectively, the consents at issue could no longer be the subject of a direct application to a court and cannot be called in question by the national authorities.95By its argument, Ireland fails to have regard, however, to the case-law of the Court referred to in paragraph 80 above, according to which projects in respect of which the consent can no longer be subject to challenge before the courts, because the time limit for bringing proceedings laid down in national legislation has expired, cannot be purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment.96It must further be noted that while it is not precluded that an assessment carried out after the plant concerned has been constructed and has entered into operation, in order to remedy the failure to carry out an environmental impact assessment of that plant before the consents were granted, may result in those consents being withdrawn or amended, this is without prejudice to any right of an economic operator, which has acted in accordance with a Member State’s legislation that has proven contrary to EU law, to bring against that State, pursuant to national rules, a claim for compensation for the damage sustained as a result of the State’s actions or omissions.97In the light of the foregoing, it must be held that, by failing to take all measures necessary to comply with the second indent of point 1 of the operative part of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), Ireland has failed to fulfil its obligations under Article 260(1) TFEU. The financial penalties 98Taking the view that Ireland has still not complied with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), the Commission claims that the Court should order Ireland to pay a lump sum of EUR 1 343.20 multiplied by the number of days between the delivery of that judgment and, either the date of compliance by Ireland with that judgment, or the date of the judgment delivered in the present case if that date is sooner than the date of compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), with a minimum lump sum of EUR 1685000.99The Commission also claims that the Court should order Ireland to pay a penalty payment of EUR 12264 per day from the date of the judgment delivered in the present case to the date of compliance by Ireland with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).100Referring to its communication SEC(2005) 1658 of 12 December 2005, entitled ‘Application of Article [260 TFEU]’, as updated by its communication of 15 December 2017, entitled ‘Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the [Court] in infringement proceedings’ (OJ 2017 C 431, p. 3), the Commission proposes that the daily penalty payment be determined by multiplying a standard flat-rate amount of EUR 700 by a coefficient for seriousness of 2 on a scale of 1 to 20 and also by a coefficient for duration of 3, that is the maximum coefficient. The result obtained would be multiplied by an ‘n’ factor, set at 2.92 for Ireland. As regards the calculation of the lump sum, the flat-rate amount would be set at EUR 230 per day and should by multiplied by a coefficient for seriousness of 2 and an ‘n’ factor set at 2.92. The total obtained would be multiplied by the number of days during which the failure to fulfil obligations persists.101As regards the seriousness of the failure to fulfil obligations, the Commission submits that account must be taken of the objectives of an environmental impact assessment, such as that provided for by Directive 85/337, of the facts established by the Court in paragraphs 102 and 104 of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), and of the landslide, linked to the construction of the wind farm, which caused substantial environmental damage.102In addition, the Commission submits that cases brought before the Court show that Ireland has already infringed Directive 85/337 on several occasions. While Ireland has in the meantime proceeded to transpose that directive, the fact remains that, in the Commission’s view, it has not made any progress such as to remedy the failure to fulfil obligations at issue, which has persisted over a particularly long period.103As regards the duration of the infringement, the Commission states that the adoption of regularisation measures is entirely Ireland’s responsibility and does not depend on the Commission’s opinion. Ireland ought to have adopted such measures as soon as possible.104Ireland contends that, in the present case, it has already complied with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), since it has taken the measures within its control in adopting a concept document providing for an environmental impact assessment of the wind farm by its operator.105The fact that a certain lapse of time was necessary in order to draw up that document does not constitute a failure to fulfil obligations, since consultation with the Commission was essential for the purposes of determining the content of that document.106In addition, the Commission’s application fails to identify the measures whose adoption is required in order to comply with the second indent of point 1 of the operative part of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380). The objective of setting a penalty payment is precisely to ensure compliance with that judgment.107In any event, the circumstances of the present case may be distinguished, on the ground referred to in paragraph 53 above, from those giving rise to the judgments of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589) and of 28 February 2018, Comune di Castelbellino (C‑117/17, EU:C:2018:129). If the Court held, however, that those judgments support the Commission’s line of argument, they would mark a departure in the case-law in that area. Consequently, no penalty ought to accrue for any breach in the period before July 2017.108Ireland further observes that the Commission’s communications are not binding upon the Court and that the Court is required to set an appropriate and proportionate penalty. The present case is unique and anomalous, which the Court must take into account when it determines the amount of the financial penalties.109As regards the seriousness of the infringement, Ireland contends that the minimum coefficient should apply, in particular in the light of the full transposition of Directive 85/337, the good faith shown by Ireland and the factual and legal difficulties of the present case. Account must also be taken of progress made by Ireland as regards compliance with its obligations and the fact that it is not proven that the landslide at Derrybrien was linked to the construction of the wind farm. In addition, Ireland has cooperated with the Commission constructively and has been committed to achieving a resolution for the problems at issue. The delay between December 2016 and October 2017 is attributable to a simple misunderstanding between Ireland and the Commission and is not indicative of a lack of cooperation.110Given the particular circumstances of the present case and the difficulties of establishing a regularisation mechanism consistent with the principles of legal certainty and of the protection of legitimate expectations, it is likewise not appropriate to apply a duration coefficient.111As a preliminary point, it should be borne in mind that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties appropriate, in particular, for preventing the recurrence of similar infringements of EU law (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 107 and the case-law cited). The lump sum payment 112As a preliminary point it must be borne in mind that, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 153).113The imposition of a lump sum payment and the fixing of that sum must depend in each individual case on all the relevant factors relating both to the characteristics of the failure to fulfil obligations established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. That provision confers a wide discretion on the Court in deciding whether to impose such a penalty and, if it decides to do so, in determining the amount (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 154).114In addition, it is for the Court, in the exercise of its discretion, to fix the lump sum in an amount appropriate to the circumstances and proportionate to the infringement. Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it, and the relevant Member State’s ability to pay (see, to that effect, judgments of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraphs 117 and 118, and of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraphs 156, 157 and 158).115In the first place, as regards the seriousness of the infringement, it must be borne in mind that the objective of protecting the environment constitutes one of the essential objectives of the European Union and is both fundamental and inter-disciplinary in nature (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 57 and the case-law cited).116An environmental impact assessment, such as that provided for by Directive 85/337, is one of the fundamental environmental protection mechanisms in that it enables, as recalled in paragraph 73 above, the creation of pollution or nuisances to be prevented at source rather than subsequently trying to deal with their effects.117In accordance with the case-law recalled in paragraph 75 above, in the event of a breach of the obligation to assess the environmental impact, Member States are nevertheless required by EU law to eliminate at least the unlawful consequences of that breach (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35).118As is apparent from paragraphs 23 to 36 above, from the time it was held in the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) that there was a failure to fulfil obligations, consisting in the breach of the obligation to carry out an environmental impact assessment before consent for, and construction of, the wind farm, more than 11 years have elapsed without Ireland adopting the measures necessary in order to comply with the second indent of point 1 of the operative part of that judgment.119Admittedly, in July 2010 Ireland enacted the PDAA, Part XA of which provides for a procedure for regularising the projects authorised in breach of the obligation to carry out an environmental impact assessment. However, a little over 2 years later, Ireland informed the Commission that it was not going to apply the regularisation procedure, whereas, from April 2009 it had been stating the contrary. On the other hand, Ireland proposed to carry out an unofficial, non-statutory assessment. By letter of 29 March 2019, and thus 2 days before the hearing before the Court in the present case, Ireland changed its position again and now contends that the wind farm operator will request that the regularisation procedure provided for in Part XA of the PDAA be applied. At the hearing, Ireland was, however, unable to state whether that procedure would be commenced, on their own initiative, by the competent authorities, pursuant to Section 177 B of Part XA of the PDAA, or on the application of the operator, pursuant to Section 177 C of Part XA of the PDAA. Nor was it in a position to state the start date for the procedure. To date, the Court has received no other information in that regard.120It must be found that, in those circumstances, Ireland’s conduct shows that it has not acted in accordance with its duty of sincere cooperation to put an end to the failure to fulfil obligations established in the second indent of point 1 of the operative part of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), which constitutes an aggravating circumstance.121Since that judgment has not yet been complied with, the Court cannot, therefore, but confirm the particularly lengthy character of an infringement which, in the light of the environmental protection aim pursued by Directive 85/337, is a matter of indisputable seriousness (see, by analogy, judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 94).122As regards, in the second place, the duration of the infringement, it should be borne in mind that that duration must be assessed by reference to the date on which the Court assesses the facts and not the date on which proceedings are brought before it by the Commission. In the present case, the duration of the infringement, of over 11 years from the date of delivery of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), is considerable (see, by analogy, judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 99).123Although Article 260(1) TFEU does not specify the period within which a judgment must be complied with, it follows from settled case-law that the importance of immediate and uniform application of EU law means that the process of compliance must be initiated at once and completed as soon as possible (judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 100).124In the third place, as regards the ability to pay of the Member State concerned, it is apparent from the case-law of the Court that it is necessary to take account of recent trends in that Member State’s gross domestic product (GDP) at the time of the Court’s examination of the facts (judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 101).125Having regard to all the circumstances of the present case, it must be found that if the future repetition of similar infringements of EU law is to be effectively prevented, a lump sum payment of EUR 5000000 must be imposed.126Ireland must, therefore, be ordered to pay the Commission a lump sum of EUR 5000000. The penalty payment 127According to settled case-law, the imposition of a penalty payment is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court continues up to the time of the Court’s examination of the facts (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 108 and the case-law cited).128In the present case, it is not in dispute that, as noted, in particular in paragraphs 118 and 119 above, Ireland has still not carried out an environmental impact assessment of the wind farm in the context of a procedure for regularising the consents at issue, granted in breach of the obligation to carry out a prior environmental impact assessment laid down in Directive 85/337. As at the date on which the facts were examined by it, the Court does not have any information that would show that there has been any change to that situation.129In the light of the foregoing, it must be held that the failure to fulfil obligations of which Ireland stands criticised continued up until the Court’s examination of the facts in the present case.130In those circumstances, the Court considers that an order imposing a penalty payment on Ireland is an appropriate financial means by which to induce it to take the measures necessary to bring to an end the failure to fulfil obligations established and to ensure full compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).131As regards the calculation of the amount of the penalty payment, according to settled case-law, the penalty payment must be decided upon according to the degree of persuasion needed in order for the Member State which has failed to comply with a judgment establishing a breach of obligations to alter its conduct and bring to an end the infringement established. In exercising its discretion in the matter, it is for the Court to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State concerned (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraphs 117 and 118).132The Commission’s proposals regarding the amount of the penalty payment cannot bind the Court and are merely a useful point of reference. The Court must remain free to set the penalty payment to be imposed in an amount and in a form that it considers appropriate for the purposes of inducing the Member State concerned to bring to an end its failure to comply with its obligations arising under EU law (see, to that effect, judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 119).133For the purposes of determining the amount of a penalty payment, the basic criteria which must be taken into consideration in order to ensure that that payment has coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringement, its duration and the ability to pay of the Member State in question. In applying those criteria, regard must be had, in particular, to the effects on public and private interests of the failure to comply and to how urgent it is for the Member State concerned to be induced to fulfil its obligations (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 120).134In the present case, having regard to all the legal and factual circumstances culminating in the breach of obligations established and the considerations set out in paragraphs 115 to 124 above, the Court considers it appropriate to impose a penalty payment of EUR 15000 per day.135Ireland must, therefore be ordered to pay the Commission a periodic penalty payment of EUR 15000 per day of delay of implementing the measures necessary in order to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) from the date of delivery of the present judgment until the date of compliance with that judgment of 3 July 2008. Costs 136Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Ireland has been unsuccessful, the latter must be ordered to pay the costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that, by failing to take all measures necessary to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), Ireland has failed to fulfil its obligations under Article 260(1) TFEU; 2. Orders Ireland to pay the European Commission a lump sum in the amount of EUR 5000000; 3. Orders Ireland to pay the Commission a periodic penalty payment of EUR 15000 per day from the date of delivery of the present judgment until the date of compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380); 4. Orders Ireland to pay the costs. LenaertsSilva de LapuertaBonichotArabadjievPrechalSafjanRodinBay Larsenvon DanwitzToaderBiltgenJürimäeLycourgosDelivered in open court in Luxembourg on 12 November 2019.A. Calot EscobarRegistrarK. LenaertsPresident( *1 ) Language of the case: English. | ff92a-cb92936-4423 | EN |
An applicant for international protection guilty of serious breaches of the rules of the accommodation centre in which he or she is hosted or of seriously violent behaviour cannot be sanctioned by a withdrawal of material reception conditions relating to housing, food or clothing | 12 November 2019 ( *1 )(Reference for a preliminary ruling — Applicants for international protection — Directive 2013/33/EU — Article 20(4) and (5) — Serious breach of the rules of the accommodation centres as well as seriously violent behaviour — Scope of the Member States’ right to determine the sanctions applicable — Unaccompanied minor — Reduction or withdrawal of material reception conditions)In Case C‑233/18,REQUEST for a preliminary ruling under Article 267 TFEU from the arbeidshof te Brussel (Higher Labour Court, Brussels, Belgium), made by decision of 22 March 2018, received at the Court on 29 March 2018, in the proceedings Zubair Haqbin v Federaal Agentschap voor de opvang van asielzoekers, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.–C. Bonichot, M. Vilaras (Rapporteur), M. Safjan and S. Rodin, Presidents of Chambers, L. Bay Larsen, T. von Danwitz, C. Toader, D. Šváby, F. Biltgen, K. Jürimäe and C. Lycourgos, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: M.-A. Gaudissart, Deputy Registrar,having regard to the written procedure and further to the hearing on 11 March 2019,after considering the observations submitted on behalf of:–M. Haqbin, by B. Dhont and K. Verstrepen, advocaten,the Belgian Government, by C. Van Lul, C. Pochet and P. Cottin, acting as Agents, and by S. Ishaque and A. Detheux, advocaten,the Hungarian Government, by M.Z. Fehér, G. Koós and M.M. Tátrai, acting as Agents,the Netherlands Government, by M.K. Bulterman and P. Huurnink, acting as Agents,the United Kingdom Government, by R. Fadoju, acting as Agent, and by D. Blundell, Barrister,the European Commission, by M. Condou-Durande and G. Wils, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 6 June 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 20 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).2The request has been made in proceedings between Mr Zubair Haqbin and the Federaal Agentschap voor de opvang van asielzoekers (Federal agency for the reception of asylum seekers, Belgium) (‘Fedasil’), concerning a claim for compensation brought by Mr Haqbin against Fedasil, following two decisions of the latter that temporarily excluded him from material reception conditions. Legal context EU law Directive 2013/33 3According to Article 32 of Directive 2013/33, the directive, for the Member States bound by it, repealed and replaced Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18).4Recitals 7, 25 and 35 of Directive 2013/33 are worded as follows:‘(7)In the light of the results of the evaluations undertaken of the implementation of the first-phase instruments, it is appropriate, at this stage, to confirm the principles underlying Directive [2003/9] with a view to ensuring improved reception conditions for applicants for international protection (“applicants”).…(25)The possibility of abuse of the reception system should be restricted by specifying the circumstances in which material reception conditions for applicants may be reduced or withdrawn while at the same time ensuring a dignified standard of living for all applicants.(35)This directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 24 and 47 of the Charter and has to be implemented accordingly.’5As set out in Article 1 of Directive 2013/33, the purpose of the directive is to lay down standards for the reception of applicants in Member States.6Article 2 of the directive, entitled ‘Definitions’, provides:‘For the purposes of this directive:(d)“minor”: means a third-country national or stateless person below the age of 18 years;(e)“unaccompanied minor”: means a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States;(f)“reception conditions”: means the full set of measures that Member States grant to applicants in accordance with this directive;(g)“material reception conditions”: means the reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance;(i)“accommodation centre”: means any place used for the collective housing of applicants;…’7Article 8(3) of Directive 2013/33, that article being entitled ‘Detention’, states:‘An applicant may be detained only:when protection of national security or public order so requires;8Article 14 of the directive, under the heading ‘Schooling and education of minors’, provides:‘1. Member States shall grant to minor children of applicants and to applicants who are minors access to the education system under similar conditions as their own nationals for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres.The Member State concerned may stipulate that such access must be confined to the State education system.Member States shall not withdraw secondary education for the sole reason that the minor has reached the age of majority.2. Access to the education system shall not be postponed for more than 3 months from the date on which the application for international protection was lodged by or on behalf of the minor.Preparatory classes, including language classes, shall be provided to minors where it is necessary to facilitate their access to and participation in the education system as set out in paragraph 1.3. Where access to the education system as set out in paragraph 1 is not possible due to the specific situation of the minor, the Member State concerned shall offer other education arrangements in accordance with its national law and practice.’9Article 17(1) and (4) of the directive, that article being entitled ‘General rules on material reception conditions and health care’, provides:‘1. Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection.2. Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health.Member States shall ensure that that standard of living is met in the specific situation of vulnerable persons, in accordance with Article 21, as well as in relation to the situation of persons who are in detention.3. Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.4. Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.’10Article 18(1) of the directive, that article being entitled ‘Modalities for material reception conditions’, provides:‘Where housing is provided in kind, it should take one or a combination of the following forms:(a)premises used for the purpose of housing applicants during the examination of an application for international protection made at the border or in transit zones;(b)accommodation centres which guarantee an adequate standard of living;(c)private houses, flats, hotels or other premises adapted for housing applicants.’11Article 20 of Directive 2013/33, the only provision in Chapter III thereof, is entitled ‘Reduction or withdrawal of material reception conditions’. That article is worded as follows:‘1. Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant:abandons the place of residence determined by the competent authority without informing it or, if requested, without permission; ordoes not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law; orhas lodged a subsequent application as defined in Article 2(q) of Directive 2013/32/EU [of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60)].In relation to cases (a) and (b), when the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the material reception conditions withdrawn or reduced.2. Member States may also reduce material reception conditions when they can establish that the applicant, for no justifiable reason, has not lodged an application for international protection as soon as reasonably practicable after arrival in that Member State.3. Member States may reduce or withdraw material reception conditions where an applicant has concealed financial resources, and has therefore unduly benefited from material reception conditions.4. Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour.5. Decisions for reduction or withdrawal of material reception conditions or sanctions referred to in paragraphs 1, 2, 3 and 4 of this article shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 21, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to health care in accordance with Article 19 and shall ensure a dignified standard of living for all applicants.6. Member States shall ensure that material reception conditions are not withdrawn or reduced before a decision is taken in accordance with paragraph 5.’12Article 21 of Directive 2013/33, entitled ‘General principle’, provides that, in their national law transposing that directive, Member States are to take into account the specific situation of vulnerable persons, in particular minors and unaccompanied minors.13Article 22(1) and (3) of the directive, that article being entitled ‘Assessment of the special reception needs of vulnerable persons’, provides:‘1. …Member States shall ensure that the support provided to applicants with special reception needs in accordance with this directive takes into account their special reception needs throughout the duration of the asylum procedure and shall provide for appropriate monitoring of their situation.3. Only vulnerable persons in accordance with Article 21 may be considered to have special reception needs and thus benefit from the specific support provided in accordance with this directive.’14Article 23 of Directive 2013/33, on minors, states:‘1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this directive that involve minors. …2. In assessing the best interests of the child, Member States shall in particular take due account of the following factors:the minor’s well-being and social development, taking into particular consideration the minor’s background;safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking;15Article 24(2) of the directive, that article being on unaccompanied minors, provides:‘Unaccompanied minors who make an application for international protection shall, from the moment they are admitted to the territory until the moment when they are obliged to leave the Member State in which the application for international protection was made or is being examined, be placed:in accommodation centres with special provisions for minors;in other accommodation suitable for minors. Directive 2013/32 16‘Subsequent application’ is defined in Article 2(q) of Directive 2013/32 as a further application for international protection made after a final decision has been taken on a previous application, including cases where the applicant has explicitly withdrawn his or her application and cases where the determining authority has rejected an application following its implicit withdrawal in accordance with Article 28(1) of that directive. Belgian law 17Article 45 of the Wet betreffende de opvang van asielzoekers en van bepaalde andere categorieën van vreemdelingen (Law of 12 January 2007 on the reception of asylum seekers and certain other categories of foreign nationals) (Moniteur belge of 7 May 2007, p. 24027), in the version applicable to the events in the main proceedings (‘the Law on reception’), provided:‘A sanction may be imposed on the beneficiary of the reception in the event of a serious breach of the operating regulations and rules applicable to the reception facilities referred to in Article 19. When choosing the sanction, it is necessary to take into account the nature and the importance of the breach and also the actual circumstances in which it was committed.Only the following sanctions may be imposed:(7) temporary exclusion from material support in a reception facility for a maximum period of 1 month.The sanctions shall be imposed by the director or responsible officer of the reception facility. The sanction referred to in subparagraph 2(7) must be confirmed by the director-general of [Fedasil] within three working days of the adoption of the sanction by the director or the manager of the reception facility. Where it is not confirmed within that period, the sanction of temporary exclusion shall automatically be lifted.Sanctions may, while they are being implemented, be reduced or lifted by the authority which imposed them.The decision imposing a sanction shall be adopted objectively and impartially and shall state the reasons on which it is based.With the exception of the sanction referred to in subparagraph 2(7), in no case shall the enforcement of a sanction have the effect of completely cancelling the material support granted under this law, or of reducing access to medical support. The sanction referred to in subparagraph 2(7) shall have the effect that the person on whom it is imposed is unable to benefit from any other form of reception apart from access to medical support, as referred to in Articles 24 and 25 of the [Law on reception].The sanction referred to in subparagraph 2(7) may be imposed only in the event of a very serious breach of the internal regulations of the reception facility endangering the staff or other residents of the reception facility or giving rise to serious risks for security or respect for public order in the reception facility.The person on whom the sanction of temporary exclusion is imposed must be heard before the sanction is adopted. The dispute in the main proceedings and the questions referred for a preliminary ruling 18Mr Haqbin, of Afghan nationality, arrived in Belgium as an unaccompanied minor and lodged an application for international protection on 23 December 2015. A guardian was appointed for him and he was hosted at the Sugny reception centre and subsequently at the Broechem reception centre. In that last centre, on 18 April 2016, he was involved in a brawl between residents of various ethnic origins. The police had to intervene to put an end to the disturbance and arrested Mr Haqbin on the ground that he was allegedly one of the instigators of the brawl. Mr Haqbin was released the following day.19By decision of the director of the Broechem reception centre of 19 April 2016, confirmed by decision of the director-general of Fedasil of 21 April 2016, Mr Haqbin was excluded, for a period of 15 days, from material support in a reception facility, pursuant to subparagraph 2(7) of Article 45 of the Law on reception.20According to his own statements and those of his guardian, Mr Haqbin spent the nights from 19 to 21 April and from 24 April to 1 May 2016 in a park in Brussels and stayed with friends or acquaintances on the other nights.21On 25 April 2016, Mr Haqbin’s guardian lodged before the arbeidsrechtbank te Antwerpen (Labour Court, Antwerp, Belgium) an application to suspend the exclusion measure imposed by the decisions referred to in paragraph 19 above. That application was dismissed for lack of extreme urgency, since Mr Haqbin had failed to show that he was homeless.22From 4 May 2016 Mr Haqbin was assigned to a different reception centre.23Mr Haqbin’s guardian brought an action before the Nederlandstalige arbeidsrechtbank te Brussel (Dutch-speaking Labour Court, Brussels, Belgium), seeking cancellation of the decisions of 19 and 21 April 2016 and compensation for the damage suffered. By judgment of that court on 21 February 2017 the action was dismissed as unfounded.24On 27 March 2017 Mr Haqbin’s guardian brought an appeal against that judgment before the referring court, the arbeidshof te Brussel (Higher Labour Court, Brussels, Belgium). On 11 December 2017 Mr Haqbin, who had reached his majority in the meantime, continued the proceedings in his own name.25The referring court considers that Article 20 of Directive 2013/33 raises an issue of interpretation. It notes that the Contact Committee set up with the European Commission to assist Member States with the transposition of Directive 2013/33 stated at the meeting of 12 September 2013 that, in its opinion, Article 20(4) of the directive provided for sanctions of a type other than measures involving the reduction or withdrawal of material reception conditions. In the committee’s opinion, that interpretation follows from the exhaustive nature of the reasons, set out in Article 20(1) to (3) of the directive, justifying the reduction or withdrawal of material reception conditions. However, in the opinion the Raad van State (Council of State, Belgium) gave in the context of the drafting history of the Law of 6 July 2016 amending the Law on reception (Moniteur belge of 5 August 2016, p. 47647), which was adopted for the purposes of the partial transposition of Directive 2013/33, the Raad van State (Council of State) considered that that was not the only conceivable reading of Article 20 of Directive 2013/33, in the light of the drafting and the interaction of Article 20(4) to (6) of the directive.26According to the referring court, the answer to be given to the question of interpretation referred to in the previous paragraph is relevant to the resolution of the dispute before it since, if Article 20 of Directive 2013/33 were to be interpreted as meaning that exclusion from material reception conditions is permissible only in the cases set out in Article 20(1) to (3) of the directive and is not permissible in the context of a sanction pursuant to Article 20(4) thereof, that would be sufficient for a ruling that the decisions of 19 and 21 April 2016 are unlawful and that Fedasil erred in imposing a sanction contrary to the law.27Moreover, the referring court takes the view that the practical application of the requirement to ensure a dignified standard of living for all applicants, which is incumbent upon Member States under Article 20(5) and (6) of Directive 2013/33, also raises questions. In that regard, it notes in particular that it is apparent from the drafting history of the Law of 6 July 2016 amending the Law on reception, referred to in paragraph 25 above, and, specifically, from the explanatory memorandum to the draft legislation that, according to the competent ministers, the objective of Directive 2013/33 can be achieved by the possibility afforded to applicants who are temporarily or definitively excluded from material reception conditions to approach one of the private centres for the homeless, a list of which is said to be provided to them.28According to the referring court, the question arises as to whether, in order to ensure a dignified standard of living for applicants, the public authority responsible for their reception must have adopted the necessary measures to make sure that an asylum seeker who has been excluded from material reception conditions by way of sanction nevertheless enjoys a dignified standard of living or whether it may simply rely on private assistance and intervene only if the latter is unable to ensure such a standard of living for the person concerned.29Lastly, if it were to be considered that the sanctions referred to in Article 20(4) of Directive 2013/33 may take the form of exclusion from material reception conditions, the referring court asks whether such sanctions may be imposed on a minor and, in particular, an unaccompanied minor.30In those circumstances, the arbeidshof te Brussel (Higher Labour Court, Brussels) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Must Article 20(1) to (3) of Directive [2013/33] be interpreted as enumerating exhaustively the cases in which material reception conditions may be reduced or withdrawn, or does it follow from Article 20(4) and (5) thereof that withdrawal of the right to material reception conditions may also occur by means of sanctions for serious breaches of the rules relating to reception centres and serious acts of violence?(2)Must Article 20(5) and (6) [of that directive] be interpreted as meaning that Member States, before taking a decision on the reduction or withdrawal of material reception conditions or on the imposition of sanctions, must, in the context of those decisions, lay down the measures necessary for guaranteeing the right to a dignified standard of living during the period of exclusion, or can those provisions be complied with by a system whereby, after the decision to reduce or withdraw the material reception conditions, an examination is carried out as to whether the person who is the subject of the decision enjoys a dignified living standard and, if necessary, remedial measures are taken at that point?(3)Must Article 20(4) to (6) [of the directive], read in conjunction with Articles 14 [and 21 to 24 thereof] and [with Articles 1, 3, 4 and 24] of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a measure or sanction of temporary (or definitive) exclusion from the right to material reception conditions is possible, or impossible, in respect of a minor, specifically in respect of an unaccompanied minor?’ Consideration of the questions referred 31By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 20(4) of Directive 2013/33 must be interpreted as meaning that a Member State can, among the sanctions that may be imposed on an applicant in the event of serious breaches of the rules of the accommodation centres as well as seriously violent behaviour, provide for the withdrawal or reduction of material reception conditions within the meaning of Article 2(f) and (g) of the directive and, if so, under which conditions such a sanction may be imposed, in particular where it concerns a minor and, specifically, an unaccompanied minor within the meaning of Article 2(d) and (e).32In that regard, it must be noted that, as is apparent from the definitions in Article 2(f) and (g) of Directive 2013/33, ‘material reception conditions’ means the full set of measures that Member States, in accordance with the directive, grant to applicants and include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance.33Under Article 17(1) and (2) of Directive 2013/33, Member States must ensure that material reception conditions are available to applicants when they make their application for international protection and that the measures adopted for those purposes provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health.34In the specific situation of ‘vulnerable persons’ within the meaning of Article 21 of the directive, which include unaccompanied minors such as Mr Haqbin at the time when he was the subject of the sanction at issue in the main proceedings, the second subparagraph of Article 17(2) of the directive states that Member States must ensure that such a standard of living is ‘met’.35However, the requirement for Member States to ensure that material reception conditions are available to applicants is not absolute. The EU legislature laid down, in Article 20 of Directive 2013/33, which is in Chapter III thereof, both of which are entitled ‘Reduction or withdrawal of material reception conditions’, the circumstances in which those conditions may be reduced or withdrawn.36As noted by the referring court, the first three paragraphs of that article refer explicitly to ‘material reception conditions’.37In that regard, Article 20(1) of the directive provides that Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant abandons the place of residence determined by the competent authority of the Member State concerned without informing it or without permission, does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure, or has lodged a ‘subsequent application’ within the meaning of Article 2(q) of Directive 2013/32.38Article 20(2) of Directive 2013/33 states that material reception conditions may be reduced when it is established that the applicant, for no justifiable reason, has not lodged an application for international protection as soon as reasonably practicable after arrival in that Member State.39Moreover, as provided in Article 20(3) of Directive 2013/33, Member States may reduce or withdraw material reception conditions where an applicant has concealed financial resources, and has therefore unduly benefited from those conditions.40Article 20(4) of Directive 2013/33 states that Member States may determine ‘sanctions’ applicable to serious breaches, by the applicant, of the rules of the accommodation centres as well as to seriously violent behaviour of the applicant.41Since the concept of ‘sanction’ referred to, in particular, in Article 20(4) of Directive 2013/33 is not defined in the directive and since the nature of the sanctions that may be imposed on an applicant under that provision is not specified, Member States are given some latitude in determining those sanctions.42Since the wording of Article 20(4) of Directive 2013/33 does not in itself settle the questions referred by the referring court, as reworded in paragraph 31 above, it is necessary, for the purpose of interpreting that provision, to have regard to the general scheme and the aim of that directive (see, by analogy, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 55 and the case-law cited).43In particular, with regard to the question whether a ‘sanction’ within the meaning of Article 20(4) of Directive 2013/33 may relate to ‘material reception conditions’, it is appropriate to note, first, that a measure for reduction or withdrawal of material reception conditions in respect of an applicant on account of serious breaches of the rules of the accommodation centres or seriously violent behaviour constitutes, in the light of the aim and the detrimental consequences thereof for the applicant, a ‘sanction’ in the ordinary meaning of that word and, secondly, that that provision is included in Chapter III of the directive, which is dedicated to the reduction and withdrawal of such conditions. It follows that the sanctions envisaged in the directive may, in principle, concern material reception conditions.44It is true that the possibility for Member States to reduce or withdraw, as the case may be, material reception conditions is explicitly provided for only in Article 20(1) to (3) of Directive 2013/33, which, as is apparent from recital 25 of the directive, concerns essentially the possibility of abuse, by applicants, of the reception system established by the directive. However, Article 20(4) of the directive does not explicitly preclude a sanction from concerning material reception conditions. Furthermore, as submitted by the Commission, inter alia, if Member States can adopt measures concerning those conditions in order to protect themselves against the possibility of abuse of the reception system, they must also be able to do so in the event of serious breaches of the rules of the accommodation centres or seriously violent behaviour, since they are capable of disrupting public order and the safety of persons and property.45That being said, it should be observed that, in accordance with Article 20(5) of Directive 2013/33, any sanction within the meaning of Article 20(4) thereof must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.46With regard specifically to the requirement to ensure a dignified standard of living, it is apparent from recital 35 of Directive 2013/33 that the directive seeks to ensure full respect for human dignity and to promote the application, inter alia, of Article 1 of the Charter of Fundamental Rights and has to be implemented accordingly. In that regard, respect for human dignity within the meaning of that article requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity (see, to that effect, judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 92 and the case-law cited).47A sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from the third sentence of Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs such as those mentioned in the previous paragraph.48Such a sanction would also amount to a failure to comply with the proportionality requirement under the second sentence of Article 20(5) of Directive 2013/33, in so far as even the most stringent sanctions, whose objective is to punish, in criminal law, the breaches or behaviour referred to in Article 20(4) of the directive, cannot deprive the applicant of the possibility of meeting his or her most basic needs.49That consideration is not called into question by the fact, mentioned by the referring court, that an applicant excluded by way of sanction from an accommodation centre in Belgium is said to be provided, upon the imposition of that sanction, with a list of private centres for the homeless likely to host him or her. Indeed, the competent authorities of a Member State cannot do no more than provide an applicant who is excluded from an accommodation centre following a sanction imposed upon him or her with a list of reception facilities which the applicant might approach in order to benefit from material reception conditions equivalent to those that have been withdrawn from him or her.50On the contrary, first, the obligation to ensure a dignified standard of living, provided for in Article 20(5) of Directive 2013/33, requires Member States, by the very fact that the verb ‘ensure’ is used therein, to guarantee such a standard of living continuously and without interruption. Secondly, it is for the authorities of the Member States to ensure, under their supervision and under their own responsibility, the provision of material reception conditions guaranteeing such a standard of living, including when they have recourse, where appropriate, to private natural or legal persons in order to carry out, under their authority, that obligation.51In the case of a sanction based on a reason set out in Article 20(4) of Directive 2013/33 and consisting in the reduction of material reception conditions, including the withdrawal or reduction of the daily expenses allowance, it is for the competent authorities to ensure under all circumstances that, in accordance with Article 20(5) of the directive, such a sanction, having regard to the particular situation of the applicant as well as all of the circumstances of that case, complies with the principle of proportionality and does not undermine the dignity of the applicant.52It should also be made clear that in the cases envisaged in Article 20(4) of Directive 2013/33, depending on the circumstances of the case and subject to the requirements set out in Article 20(5) of the directive, Member States may impose sanctions that do not have the effect of depriving the applicant of material reception conditions, such as being held in a separate part of the accommodation centre as well as being prohibited from contacting certain residents of the centre or being transferred to another accommodation centre or to other housing within the meaning of Article 18(1)(c) of the directive. Similarly, Article 20(4) and (5) of Directive 2013/33 does not preclude a measure to hold the applicant in detention pursuant to Article 8(3)(e) of the directive in so far as the conditions laid down in Articles 8 to 11 thereof are satisfied.53Lastly, it is important to note that, where the applicant, as in the main proceedings, is an unaccompanied minor, that is to say a ‘vulnerable person’ within the meaning of Article 21 of Directive 2013/33, the authorities of the Member States, when imposing sanctions pursuant to Article 20(4) of the directive, must especially take into account, according to the second sentence of Article 20(5) thereof, of the particular situation of the minor and of the principle of proportionality.54Moreover, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of the directive that involve minors. Under Article 23(2) of the directive, in assessing those best interests, Member States must in particular take due account of factors such as the minor’s well-being and social development, taking into particular consideration the minor’s background, such as safety and security considerations. Recital 35 of the directive also underlines that the latter seeks to promote the application, inter alia, of Article 24 of the Charter of Fundamental Rights and has to be implemented accordingly.55In that context, beyond the general considerations set out in paragraphs 47 to 52 above, the minor’s situation must, under all circumstances, be taken into particular consideration when a sanction is imposed pursuant to Article 20(4) of Directive 2013/33, read in conjunction with Article 20(5) thereof. Furthermore, neither of those provisions precludes the authorities of a Member State from deciding to entrust the care of the minor concerned to child protection services or to the judicial authorities responsible therefor.56In the light of all of the foregoing, the answer to the questions referred is that Article 20(4) and (5) of Directive 2013/33, read in the light of Article 1 of the Charter of Fundamental Rights, must be interpreted as meaning that a Member State cannot, among the sanctions that may be imposed on an applicant for serious breaches of the rules of the accommodation centres as well as seriously violent behaviour, provide for a sanction consisting in the withdrawal, even temporary, of material reception conditions, within the meaning of Article 2(f) and (g) of the directive, relating to housing, food or clothing, in so far as it would have the effect of depriving the applicant of the possibility of meeting his or her most basic needs. The imposition of other sanctions under Article 20(4) of the directive must, under all circumstances, comply with the conditions laid down in Article 20(5) thereof, including those concerning the principle of proportionality and respect for human dignity. In the case of an unaccompanied minor, those sanctions must, in the light, inter alia, of Article 24 of the Charter of Fundamental Rights, be determined by taking particular account of the best interests of the child. Costs 57Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 20(4) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a Member State cannot, among the sanctions that may be imposed on an applicant for serious breaches of the rules of the accommodation centres as well as seriously violent behaviour, provide for a sanction consisting in the withdrawal, even temporary, of material reception conditions, within the meaning of Article 2(f) and (g) of the directive, relating to housing, food or clothing, in so far as it would have the effect of depriving the applicant of the possibility of meeting his or her most basic needs. The imposition of other sanctions under Article 20(4) of the directive must, under all circumstances, comply with the conditions laid down in Article 20(5) thereof, including those concerning the principle of proportionality and respect for human dignity. In the case of an unaccompanied minor, those sanctions must, in the light, inter alia, of Article 24 of the Charter of Fundamental Rights, be determined by taking particular account of the best interests of the child. [Signatures]( *1 ) Language of the case: Dutch. | 3be04-8fdf516-4576 | EN |
Foodstuffs originating in the territories occupied by the State of Israel must bear the indication of their territory of origin, accompanied, where those foodstuffs come from an Israeli settlement within that territory, by the indication of that provenance | 12 November 2019 ( *1 )(Reference for a preliminary ruling — Regulation (EU) No 1169/2011 — Provision of food information to consumers — Mandatory indication of the country of origin or place of provenance of a foodstuff where failure to indicate this might mislead the consumer — Requirement that foodstuffs originating in territories occupied by the State of Israel bear the indication of their territory of origin, accompanied, where those foodstuffs come from an Israeli settlement within that territory, by the indication of that provenance)In Case C‑363/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 30 May 2018, received at the Court on 4 June 2018, in the proceedings Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l’Économie et des Finances, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský (Rapporteur), D. Šváby, C. Lycourgos and N. Piçarra, Judges,Advocate General: G. Hogan,Registrar: V. Giacobbo‑Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 9 April 2019,after considering the observations submitted on behalf of:–Organisation juive européenne, by J. Buk Lament, avocate,Vignoble Psagot Ltd, by F.‑H. Briard, Y.‑A. Benizri and E. Weiss, avocats,the French Government, by D. Colas, B. Fodda, S. Horrenberger, L. Legrand, A.‑L. Desjonquères, C. Mosser and E. de Moustier, acting as Agents,Ireland, by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by S. Kingston, Barrister-at-law,the Netherlands Government, by M.K. Bulterman and P. Huurnink, acting as Agents,the Swedish Government, by A. Falk, C. Meyer‑Seitz and H. Shev, acting as Agents,the European Commission, by A. Bouquet, B. De Meester, F. Clotuche‑Duvieusart and K. Herbout‑Borczak, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).2The request has been made in proceedings between, on the one hand, Organisation juive européenne and Vignoble Psagot Ltd and, on the other hand, the ministre de l’Économie et des Finances (the French Minister for the Economy and Finance) in relation to the legality of a notice concerning the indication of origin of goods originating in the territories occupied by the State of Israel since June 1967. Legal context European Union law Legislation concerning foodstuffs 3Recitals 3, 4 and 29 of Regulation No 1169/2011 state:‘(3)In order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.(4)According to Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [OJ 2002 L 31, p. 1] it is a general principle of food law to provide a basis for consumers to make informed choices in relation to food they consume and to prevent any practices that may mislead the consumer.…(29)The indication of the country of origin or of the place of provenance of a food should be provided whenever its absence is likely to mislead consumers as to the true country of origin or place of provenance of that product. In all cases, the indication of country of origin or place of provenance should be provided in a manner which does not deceive the consumer …’4Article 1 of that regulation, entitled ‘Subject matter and scope’ provides, in paragraph 1:‘This Regulation provides the basis for the assurance of a high level of consumer protection in relation to food information, taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market.’5Article 2(2)(g) of Regulation No 1169/2011 provides that, for the purposes of that regulation, the ‘place of provenance’ means any place where a food is indicated to come from, and that is not the ‘country of origin’ as determined in accordance with Articles 23 to 26 of Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Community Customs Code’), before specifying that the name, business name or address of the food business operator on the label shall not constitute an indication of the country of origin or place of provenance of food. In addition, paragraph 3 of that article provides that the ‘country of origin’ of a food shall refer to the origin of a food as determined in accordance with Articles 23 to 26 of the Community Customs Code.6Article 3 of that regulation, entitled ‘General objectives’, provides, in paragraph 1:‘The provision of food information shall pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.’7Under Article 9 of Regulation No 1169/2011, entitled ‘List of mandatory particulars’:‘1. In accordance with Articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory:(i)the country of origin or place of provenance where provided for in Article 26;…’8Article 26 of that regulation, entitled ‘Country of origin or place of provenance’, provides, in paragraph 2:‘Indication of the country of origin or place of provenance shall be mandatory:(a)where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance; Customs legislation 9The Community Customs Code was repealed by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1 and corrigendum OJ 2013 L 287, p. 90; ‘the Union Customs Code’), the relevant provisions of which have been applicable since 1 May 2016, in accordance with Article 288(2) thereof.10Since that date, references to the Community Customs Code in other Union acts, such as Regulation No 1169/2011, must be construed as references to the corresponding provisions of the Union Customs Code, as is clear from Article 286(3) of the latter.11Article 60 of the Union Customs Code, which corresponds to Articles 23(1) and 24 of the Community Customs Code, provides:‘1. Goods wholly obtained in a single country or territory shall be regarded as having their origin in that country or territory.2. Goods the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture.’ The Commission Notice 12On 12 November 2015, the European Commission published, in the Official Journal of the European Union, a notice entitled ‘Interpretative Notice on indication of origin of goods from the territories occupied by [the State of] Israel since June 1967’ (OJ 2015 C 375, p. 4; ‘the Commission Notice’).13In paragraph 1 of that notice, the Commission states that ‘the European Union, in line with international law, does not recognise Israel’s sovereignty over the territories occupied by Israel since June 1967, namely the Golan Heights, the Gaza Strip and the West Bank, including East Jerusalem, and does not consider them to be part of Israel’s territory’.14In paragraph 2 of that notice, the Commission states that there is ‘a demand for clarity from consumers, economic operators and national authorities about existing Union legislation on origin information of products from Israeli-occupied territories’ and that ‘the aim is also to ensure the respect of Union positions and commitments in conformity with international law on the non-recognition by the Union of Israel’s sovereignty over the territories occupied by Israel since June 1967’.15In paragraph 3 of that notice, the Commission states that ‘this Notice does not create any new legislative rules’ and ‘reflects the Commission’s understanding of the relevant Union legislation’, ‘without prejudice to … the interpretation which the Court of Justice may provide’.16After referring, in paragraphs 4 to 6 of its notice, to several provisions of EU legislation which require that the origin of various types of products be indicated on those products, the Commission states the following in paragraphs 7 to 10 of that notice:‘(7)Since the Golan Heights and the West Bank (including East Jerusalem) are not part of the Israeli territory according to international law, the indication “product from Israel” is considered to be incorrect and misleading in the sense of the referenced legislation.(8)To the extent that the indication of the origin is mandatory, another expression will have to be used, which takes into account how these territories are often known.(9)For products from Palestine that do not originate from settlements, an indication which does not mislead about the geographical origin, while corresponding to international practice, could be “product from the West Bank (Palestinian product)”, “product from Gaza” or “product from Palestine”.(10)For products from the West Bank or the Golan Heights that originate from settlements, an indication limited to “product from the Golan Heights” or “product from the West Bank” would not be acceptable. Even if they would designate the wider area or territory from which the product originates, the omission of the additional geographical information that the product comes from Israeli settlements would mislead the consumer as to the true origin of the product. In such cases the expression “Israeli settlement” or equivalent needs to be added, in brackets, for example. Therefore, expressions such as “product from the Golan Heights (Israeli settlement)” or “product from the West Bank (Israeli settlement)” could be used.’ French law 17The notice to economic operators concerning the indication of origin of goods originating in the territories occupied by the State of Israel since June 1967 (‘Avis aux opérateurs économiques relatifs à l’indication de l’origine des marchandises issues des territoires occupés par [l’État d’]Israël depuis juin 1967’), published by the French Minister for the Economy and Finance on 24 November 2016 (JORF 2016, No 273, text No 81; ‘the Ministerial Notice’), reads as follows:‘Regulation [No 1169/2011] provides that the labelling particulars must be fair. They must not risk misleading the consumer, particularly as to origin of the products. Foodstuffs from the territories occupied by Israel must therefore be labelled to reflect this origin.Consequently, the [Direction générale de la Concurrence, de la consommation et de la répression des fraudes (Directorate-General for Competition, Consumer Affairs and Fraud Control) (DGCCRF) of the French Ministry of the Economy and Finance] draws the attention of operators to [the Commission Notice].In particular, it specifies that under international law the Golan Heights and the West Bank, including East Jerusalem, are not part of Israel. Consequently, in order not to mislead the consumer, the labelling of food products must accurately indicate the exact origin of the products, whether their indication is mandatory under Community rules or voluntarily affixed by the operator.For products from the West Bank or the Golan Heights which originate in settlements, an indication limited to “product originating in the Golan Heights” or “product originating in the West Bank” is not acceptable. Although these terms do refer to the wider area or territory in which the product originates, the omission of the additional geographical information that the product originates from Israeli settlements is likely to mislead the consumer as to the true origin of the product. In such cases, it is necessary to add, in brackets, the term “Israeli settlement” or equivalent terms. Thus, terms such as “product originating in the Golan Heights (Israeli settlement)” or “product originating in the West Bank (Israeli settlement)” may be used.’ The disputes in the main proceedings and the questions referred for a preliminary ruling 18By two applications lodged on 24 and 25 January 2017, Organisation juive européenne and Vignoble Psagot each brought an action before the Conseil d’État (Council of State, France) seeking the annulment of the Ministerial Notice. In support of their respective claims, they both relied on various pleas in law alleging, inter alia, that that notice did not take into account Regulation No 1169/2011.19The Conseil d’État (Council of State) considered, in essence, that the questions raised by the examination of the pleas alleging that the Ministerial Notice disregarded Regulation No 1169/2011 were decisive for the outcome of the two disputes pending before it and that they raised serious difficulties.20In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does EU law and in particular Regulation No 1169/2011, where indication of the origin of a product falling within the scope of that regulation is mandatory, require, for a product from a territory occupied by the State of Israel since 1967, an indication of that territory and an indication that the product comes from an Israeli settlement if that is the case?(2)If not, do the provisions of the regulation, in particular those in Chapter VI thereof, allow a Member State to require those indications?’ Consideration of the questions referred The first question 21By its first question, the national court asks, in essence, whether Article 9(1)(i) of Regulation No 1169/2011, read in conjunction with Article 26(2)(a) of that regulation, must be interpreted as meaning that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from an Israeli settlement within that territory, the indication of that provenance.22In that respect, it should be noted, first, that it follows from Article 9(1)(i) of Regulation No 1169/2011 that the indication of the country of origin or the place of provenance of a food is mandatory where provided for in Article 26 of that regulation.23Article 26(2)(a) provides that that indication is mandatory where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of a food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance.24In addition, recital 29 of Regulation No 1169/2011, in the light of which that provision must be read, states that, in all cases, an indication of origin or provenance should not deceive consumers.25It follows that the country of origin or the place of provenance of a foodstuff must be indicated where failure to indicate this might mislead consumers into believing that that foodstuff has a country of origin or a place of provenance different from its true country of origin or place of provenance. Furthermore, where the origin or provenance is indicated on that foodstuff, it must not be deceptive.26Secondly, the concept of ‘country of origin’ in Article 26(2)(a) of Regulation No 1169/2011 is defined in Article 2(3) of that regulation by reference to the Community Customs Code, which was succeeded by the Union Customs Code, as indicated in paragraph 9 above.27Under Article 60 of the Union Customs Code, goods which have either been wholly obtained in a particular ‘country’ or ‘territory’ or have undergone their last substantial processing or working in that country or territory are to be regarded as having their origin in that country or territory.28As regards the term ‘country’, it should be noted that it is used numerous times in the TEU and the TFEU as a synonym for the term ‘State’. Therefore, in order to ensure the consistent interpretation of EU law, the same meaning should be given to that term in the Union Customs Code and in Regulation No 1169/2011.29In addition, the notion of ‘State’ must itself be understood as referring to a sovereign entity exercising, within its geographical boundaries, the full range of powers recognised by international law (see, to that effect, judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 95).30As regards the term ‘territory’, it follows from the alternative nature of the wording in Article 60 of the Union Customs Code that that term refers to entities other than ‘countries’ and, therefore, other than ‘States’.31As the Court has already held, such entities include, inter alia, geographic spaces which, whilst being under the jurisdiction or the international responsibility of a State, nevertheless have a separate and distinct status from that State under international law (see, to that effect, judgments of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraphs 92 and 95, and of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 62 to 64).32In the light of the content of Article 60 of the Union Customs Code, the obligation laid down in Article 26(2) of Regulation No 1169/2011 to indicate the country of origin of a foodstuff, where failure to indicate this might mislead the consumer, thus applies not only to foodstuffs originating in ‘countries’, as described in paragraphs 28 and 29 above, but also to those originating in ‘territories’, as referred to in paragraph 31 above.33In the present case, the referring court states that the foodstuffs at issue in the main proceedings originate in ‘territories occupied by the State of Israel since 1967’ and, more specifically, as stated in the Ministerial Notice, in the West Bank, including East Jerusalem, and the Golan Heights.34Under the rules of international humanitarian law, these territories are subject to a limited jurisdiction of the State of Israel, as an occupying power, while each has its own international status distinct from that of that State.35The West Bank is a territory whose people, namely the Palestinian people, enjoy the right to self-determination, as noted by the International Court of Justice in its Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Reports 2004, p. 136, paragraphs 118 and 149). The Golan Heights form part of the territory of a State other than the State of Israel, namely the Syrian Arab Republic.36In the light of the foregoing, it must be held that displaying, on foodstuffs such as those at issue in the main proceedings, the indication that the State of Israel is their ‘country of origin’, when those foodstuffs actually originate in one of the territories referred to in paragraph 33 above, would be liable to deceive consumers.37In addition, in order to prevent consumers being misled as to the fact that the State of Israel is present in those territories as an occupying power and not as a sovereign entity within the meaning of paragraph 29 above, it appears necessary to inform them that those foodstuffs do not originate in that State.38Consequently, the indication of the territory of origin of foodstuffs such as those at issue in the main proceedings cannot be omitted and must therefore be regarded as mandatory under Articles 9 and 26 of Regulation No 1169/2011.39Thirdly and lastly, the concept of ‘place of provenance’ in Article 26(2)(a) of Regulation No 1169/2011 refers — according to the first sentence of Article 2(2)(g) of that regulation — to the place from which a food comes, but which is not the ‘country of origin’ of that food. The latter provision specifies, however, that the indication of the name, business name or address of the producer cannot act as an indication of the provenance of that foodstuff.40Moreover, in view of the considerations in paragraphs 26 to 32 above, a place of provenance likewise cannot correspond to the ‘territory of origin’ of a foodstuff.41In view of these elements, the concept of ‘place of provenance’ must be understood as referring to any specific geographical area within the country or territory of origin of a foodstuff, with the exception of a producer’s address.42In the present case, the question raised by the national court involves, first, determining whether Regulation No 1169/2011 must be interpreted as meaning that the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the territories referred to in paragraph 33 above may be regarded as an indication of the place of provenance within the meaning of that regulation.43The term ‘settlement’, because of its generic nature, is likely to refer not to a single place, but to a number of localities. Moreover, that term, in its usual sense, has a demographic dimension beyond its geographical meaning, since it refers to a population of foreign origin.44However, these factors do not prevent the term ‘settlement’ from contributing to the designation of a ‘place of provenance’ within the meaning of Regulation No 1169/2011, provided that, in a given case, it refers to a specific geographical area, as defined in paragraph 41 above.45It follows, in the present case, that the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the territories referred to in paragraph 33 above may be regarded as an indication of ‘place of provenance’ within the meaning of Article 26(2)(a) of Regulation No 1169/2011.46In those circumstances, it must be determined, secondly, whether the indication ‘Israeli settlement’ is mandatory, in the case of foodstuffs such as those at issue in the main proceedings. More specifically, since, as follows from paragraph 38 above, such foodstuffs must bear the indication of their territory of origin, the Court must determine whether they must also bear the indication ‘Israeli settlement’.47As stated in paragraph 25 above, it is necessary, for that purpose, to verify whether the omission of that indication, with the result that only the territory of origin is mentioned, might mislead consumers as to the true place of provenance of the foodstuffs concerned.48In that regard, it should be noted that the settlements established in some of the territories occupied by the State of Israel are characterised by the fact that they give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law, as codified in the sixth paragraph of Article 49 of the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949 (United Nations Treaty Series, vol. 75, No 973, p. 287), as noted by the International Court of Justice, with respect to the Occupied Palestinian Territory, in its Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Reports 2004, p. 136, paragraph 120). Moreover, that policy has been repeatedly condemned by the United Nations Security Council, as the Advocate General noted in points 53 and 54 of his Opinion, and by the European Union itself. In that context, it should be underlined that, in accordance with Article 3(5) TEU, the European Union is to contribute to the strict observance of international law, including the principles of the United Nations Charter.49It should be pointed out that, if a foodstuff from an Israeli settlement bore the indication of one of the territories referred to in paragraph 33 above, without however mentioning that place of provenance, consumers could be led to believe that it comes, in the case of the West Bank, from a Palestinian producer or, in the case of the Golan Heights, from a Syrian producer.50Consumers cannot be expected to guess, in the absence of any information capable of enlightening them in that respect, that that foodstuff comes from a locality or a set of localities constituting a settlement established in one of those territories in breach of the rules of international humanitarian law.51To that extent, the omission of the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the territories referred to in paragraph 33 above is likely to mislead consumers, by suggesting that that food has a place of provenance other than its true place of provenance.52That conclusion is supported by the objective of Regulation No 1169/2011, which is, as stated in Article 1(1) thereof, to ensure a high level of consumer protection in relation to food information, taking into account the differences in perception of consumers.53It follows from Article 3(1) of Regulation No 1169/2011, and from recitals 3 and 4 of that regulation, in the light of which that provision must be read, that the provision of information to consumers must enable them to make informed choices, with particular regard to health, economic, environmental, social and ethical considerations.54However, given the non-exhaustive nature of this list, it should be emphasised that other types of considerations, such as those relating to the observance of international law, may also be relevant in that context.55In the present case, it must be acknowledged — as the Advocate General noted, in essence, in points 51 and 52 of his Opinion — that consumers’ purchasing decisions may be informed by considerations relating to the fact that the foodstuffs in question in the main proceedings come from settlements established in breach of the rules of international humanitarian law.56In addition, the fact that a foodstuff comes from a settlement established in breach of the rules of international humanitarian law may be the subject of ethical assessments capable of influencing consumers’ purchasing decisions, particularly since some of those rules constitute fundamental rules of international law (Advisory Opinion of the International Court of Justice of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, paragraphs 155 to 159).57Thus, although Articles 9(1)(i) and 26(2)(a) of Regulation No 1169/2011 refer to the indication of the country of origin ‘or’ the place of provenance, those provisions require, in a situation such as that at issue in the main proceedings, both the indication that a foodstuff originates in one of the territories referred to in paragraph 33 above and the indication that it comes from an ‘Israeli settlement’, where that foodstuff comes from a settlement within one of those territories, since the omission of that second indication is liable to mislead consumers as to the place of provenance of that foodstuff.58In the light of all the foregoing considerations, the answer to the first question must be that Article 9(1)(i) of Regulation No 1169/2011, read in conjunction with Article 26(2)(a) of that regulation, must be interpreted as meaning that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance. The second question 59In the light of the answer given to the first question, there is no need to answer the second question. Costs 60Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 9(1)(i) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, read in conjunction with Article 26(2)(a) of that regulation, must be interpreted as meaning that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance. [Signatures]( *1 ) Language of the case: French. | 50825-f491eb5-4ea9 | EN |
According to Advocate General Szpunar, MEPs’ Parliamentary mandate is acquired solely from the electorate and this cannot be conditional on the completion of any subsequent formality | 19 December 2019 ( *1 )(Reference for a preliminary ruling – Expedited procedure – Institutional law – Citizen of the European Union elected to the European Parliament while being held in provisional detention in the context of criminal proceedings – Article 14 TEU – Concept of ‘Member of the European Parliament’ – Article 343 TFEU – Immunities necessary for the performance of the tasks of the European Union – Protocol (No 7) on the privileges and immunities of the European Union – Article 9 – Immunities enjoyed by Members of the European Parliament – Immunity as regards travel – Immunities as regards sessions – Personal, temporal and material scope of the various immunities – Waiver of immunity by the European Parliament – Request to waive immunity from a national court – Act concerning the election of Members of the European Parliament by direct universal suffrage – Article 5 – Term of office – Article 8 – Electoral procedure – Article 12 – Verification of the credentials of Members of the European Parliament following the official declaration of the election results – Charter of Fundamental Rights of the European Union – Article 39(2) – Election of Members of the European Parliament by direct universal suffrage in a free and secret ballot – Right to stand as a candidate at elections)In Case C‑502/19,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 1 July 2019, received at the Court on the same day, in the criminal proceedings against Oriol Junqueras Vies, other parties: Ministerio Fiscal, Abogacía del Estado, Partido político VOX, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice‑President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal, L.S. Rossi and I. Jarukaitis, Presidents of Chambers, E. Juhász, J. Malenovský (Rapporteur), L. Bay Larsen, C. Toader, N. Piçarra, A. Kumin, N. Jääskinen and N. Wahl, Judges,Advocate General: M. Szpunar,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 14 October 2019,after considering the observations submitted on behalf of:–Mr Junqueras Vies, by A. Van den Eynde Adroer, abogado,the Ministerio Fiscal, by F. Cadena Serrano, C. Martinez-Pereda, J. Moreno Verdejo and J. Zaragoza Aguado,Partido político VOX, by M. Castro Fuertes, abogada, and by M. Hidalgo López, procuradora,the Spanish Government, by S. Centeno Huerta and A. Rubio González, acting as Agents,the European Parliament, by C. Burgos and by F. Drexler and N. Görlitz, acting as Agents,the European Commission, by F. Erlbacher and I. Martínez del Peral, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 November 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 9 of the Protocol (No 7) on the privileges and immunities of the European Union (OJ 2012 C 326, p. 266, ‘the Protocol on the privileges and immunities of the European Union’).2The request has been made in the context of an action brought by Mr Oriol Junqueras Vies, in an ancillary procedure to the criminal proceedings concerning him, against an order of the Tribunal Supremo (Supreme Court, Spain) whereby it refused, following the official declaration of the results of the elections to the European Parliament held on 26 May 2019, to lift a measure of provisional detention applied to Mr Junqueras Vies since November 2017, in order to allow him to discharge a formality which, under Spanish law, is a condition for acquiring the status of Member of the European Parliament. Legal context EU law The Protocol on the privileges and immunities of the European Union 3Chapter III of the Protocol on the privileges and immunities of the European Union, concerning ‘Members of the European Parliament’, contains inter alia Article 9, which provides:‘During the sessions of the European Parliament, its Members shall enjoy:(a)in the territory of their own State, the immunities accorded to members of their parliament;(b)in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’ The Electoral Act 4The Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ 1976 L 278, p. 1), as last amended by Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002 (OJ 2002 L 283, p. 1) (‘the Electoral Act’).5Article 1(3) of the Electoral Act provides that the election of Members of the European Parliament is to be by direct universal suffrage and is to be free and secret.6Article 5 of that act reads as follows:‘1. The five-year term for which members of the European Parliament are elected shall begin at the opening of the first session following each election.…2. The term of office of each member of the European Parliament shall begin and end at the same time as the period referred to in paragraph 1.’7Article 6(2) of that act provides:‘Members of the European Parliament shall enjoy the privileges and immunities applicable to them by virtue of the [Protocol on the privileges and immunities of the European Union].’8The first paragraph of Article 8 of that act provides:‘Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.’9Under Article 11(3) and (4) of the Electoral Act:‘3. Without prejudice to Article [229 TFEU], the European Parliament shall meet, without requiring to be convened, on the first Tuesday after expiry of an interval of one month from the end of the electoral period.4. The powers of the outgoing European Parliament shall cease upon the opening of the first sitting of the new European Parliament.’10Article 12 of that act provides:‘The European Parliament shall verify the credentials of members of the European Parliament. For this purpose it shall take note of the results declared officially by the Member States and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers.’ Spanish law The Spanish Constitution 11Article 71 of the Spanish Constitution provides:‘1. Deputies and senators shall enjoy absolute privilege in respect of opinions expressed in the performance of their duties.2. During their term of office, deputies and senators shall also have immunity and may only be arrested if they are found in the act of committing an offence. They cannot be charged or prosecuted without the prior authorisation of the relevant legislative chamber.3. The Criminal Division of the Tribunal Supremo [(Supreme Court)] shall have jurisdiction in criminal cases against deputies and senators.…’ The Electoral Law 12Ley orgánica 5/1985 de Régimen Electoral General (Organic Law 5/1985 on the General Electoral System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110), in the version applicable to the facts in the main proceedings (‘the Electoral Law’), provides, in Article 224:‘1. The Junta Electoral Central [(Central Electoral Board, Spain)] shall, at the latest by the 20th day following the elections, count the votes at national level, allocate the seat corresponding to each of the candidates, and declare the elected representatives.2. Within five days of their declaration, the elected candidates shall swear or pledge to abide by the Constitution before the [Central Electoral Board]. Once that period has elapsed, the [Central Electoral Board] shall declare vacant the seats corresponding to Members of the European Parliament who have not sworn or pledged to abide by the Constitution and shall withdraw all the privileges to which they may be entitled by reason of their office until such time as that oath or pledge takes place. The Rules of Procedure of the Congress of Deputies 13The Reglamento del Congreso de los Diputados (Rules of Procedure of the Congress of Deputies) of 10 February 1982 (BOE No 55 of 5 March 1982, p. 5765), provides, in Article 20:‘1. A deputy who has been declared elected shall acquire the full status of deputy by simultaneously fulfilling the following conditions:(1)presenting to the Secretary General the credential issued by the relevant body of the electoral authorities;(2)completing his declaration of activities within the periods laid down in the [Electoral Law];(3)swearing or pledging, from the first plenary session that he attends, to abide by the Constitution.2. The rights and prerogatives take effect as from the moment the deputy is declared elected. However, if three plenary sessions have been held without the deputy having acquired that status in accordance with the previous paragraph, he shall not enjoy those rights and prerogatives until he has acquired that status.’ The Law on Criminal Procedure 14Under Article 384a of the Ley de Enjuiciamiento Criminal (Law on Criminal Procedure), in the version applicable to the facts at issue in the main proceedings:‘Where an indictment has become final and a provisional detention order has been made in respect of a criminal offence committed by a person who is a member of or who is linked to an armed group or individuals who are terrorists or insurgents, a defendant who is in public office will automatically be suspended from holding that office for as long as he remains in detention.’15The first paragraph of Article 503 of that law provides:‘1. A provisional detention order may be made only when the following conditions are satisfied:There is evidence in the case of the existence of one or more acts corresponding to a criminal offence punishable by a maximum sentence of a term equal to or more than two years’ imprisonment or a custodial sentence of a lesser term where the person under investigation or defendant has a criminal record as a result of a conviction for an intentional criminal offence, which has not been cancelled or cannot be cancelled.There are sufficient grounds in the case for believing that the person against whom the detention order is to be made is criminally responsible for the offence.Provisional detention is ordered in pursuit of one of the following aims:ensuring that the person under investigation or defendant will attend the proceedings where there are reasons to believe that there is a risk of absconding.16Articles 750 to 754 of that law are worded as follows:‘Article 750A court which finds that there are grounds for prosecuting a senator or deputy of the Cortes [(Senate and Congress of Deputies, Spain)] for a criminal offence shall refrain from doing so if the [Senate and the Congress of Deputies] are in session until it obtains the relevant authorisation from the legislative chamber of which the person in question is a member.Article 751Where a senator or deputy is found in the act of committing an offence, he may be arrested and prosecuted without the authorisation referred to in the previous article; however, the relevant legislative chamber must be notified of this within 24 hours of the arrest or prosecution.The legislative chamber concerned must also be notified of any criminal case pending against a person who, while being prosecuted, is elected a senator or deputy.Article 752If a senator or deputy is prosecuted during a period between parliamentary sessions, the court seised of the case must immediately bring this to the attention of the legislative chamber concerned.The above shall also apply where a person who has been elected a senator or deputy is prosecuted before [the Senate or the Congress of Deputies] meets.Article 753At all events, the judicial officer shall stay the criminal proceedings from the date on which the [Senate and the Congress of Deputies] is informed, whether or not they are in session, and matters shall remain as they stand at that time until the relevant legislative chamber adopts the decision it considers appropriate.Article 754Should [the Senate or the Congress of Deputies] refuse to grant the authorisation requested, the proceedings shall be discontinued in respect of the senator or deputy but the case shall continue against the other defendants.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 17The applicant in the main proceedings, Mr Junqueras Vies, was Vice-President of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Catalan Parliament, regulating the referendum on self-determination) of 6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1), and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Catalan Parliament on legal transition and founding the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and the holding, on 1 October 2017, of the referendum on self-determination provided for by the first of those two laws, the provisions of which had, in the interim, been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain).18Following the adoption of those laws and the holding of that referendum, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (Counsel for the State, Spain) and the Partido político VOX (VOX political party) brought criminal proceedings against several persons, including Mr Junqueras Vies, alleging that they had taken part in a secessionist process and committed, in that context, acts classified as three criminal offences, namely, first, ‘rebellion’ or ‘sedition’, secondly, ‘civil disobedience’, and, thirdly, ‘misappropriation of funds’.19Mr Junqueras Vies was placed in provisional detention during the investigation stage of those criminal proceedings, pursuant to a decision adopted on 2 November 2017 on the basis of Article 503 of the Law on Criminal Procedure. That decision was subsequently renewed several times, with the result that Mr Junqueras Vies was still in provisional detention on the date that the request for a preliminary ruling which gave rise to the present judgment was lodged.20After the opening of the trial stage of those criminal proceedings, Mr Junqueras Vies stood as a candidate in the elections for the Congreso de los Diputados (Congress of Deputies, Spain) held on 28 April 2019, in which he was elected as a deputy.21By order of 14 May 2019, the Tribunal Supremo (Supreme Court) held that it was not necessary to request the Congress of Deputies to grant the prior authorisation referred to in Article 71(2) of the Spanish Constitution, since the election of Mr Junqueras Vies as a deputy had occurred after the opening of the trial stage of the criminal proceedings brought against him, amongst others. In accordance with the case-law of that court, the immunity provided for in that provision is granted to deputies and senators only in respect of criminal proceedings in which the trial stage has not yet been opened at the date on which they are elected or acquire the status of deputy or senator.22By the same order, the Tribunal Supremo (Supreme Court), in response to a request to that effect made by Mr Junqueras Vies, granted him a special authorisation to leave prison in order to take part, under police surveillance, in the first plenary session of the Congress of Deputies and to discharge, at that session, the formalities required in order to take his seat, as laid down in Article 20 of the Rules of Procedure of the Congress of Deputies.23After discharging those formalities and taking his seat, and then being returned to prison, Mr Junqueras Vies was suspended from his position as a deputy by a decision of the administrative board of the Congress of Deputies adopted on 24 May 2019, in accordance with Article 384a of the Law on Criminal Procedure.24During the trial stage of the criminal proceedings brought against him, amongst others, Mr Junqueras Vies also stood as a candidate in the elections to the European Parliament held on 26 May 2019. He was elected to the European Parliament in those elections, as noted in the official declaration of the election results made by the Central Electoral Board in a decision of 13 June 2019, entitled ‘Declaration of Members elected to the European Parliament in the elections held on 26 May 2019’ (BOE No 142 of 14 June 2019, p. 62477), in accordance with Article 224(1) of the Electoral Law. In that decision, the Central Electoral Board also, in accordance with that provision, attributed to the elected persons, including Mr Junqueras Vies, the seats in the European Parliament apportioned to the Kingdom of Spain.25By order of 14 June 2019, the Tribunal Supremo (Supreme Court) rejected a request made by Mr Junqueras Vies for special authorisation to leave prison, under police surveillance, in order to appear before the Central Electoral Board and swear or pledge to abide by the Spanish Constitution, as required by Article 224(2) of the Electoral Law.26On 20 June 2019, the Central Electoral Board adopted a decision in which it found that Mr Junqueras Vies had not taken the oath or pledge in question and, in accordance with Article 224(2) of the Electoral Law, declared vacant the seat attributed to Mr Junqueras Vies in the European Parliament and suspended all of the prerogatives that he might enjoy by virtue of his office.27On 2 July 2019, the President of the European Parliament opened the first session of the parliamentary term following the elections to the European Parliament held on 26 May 2019.28Mr Junqueras Vies brought an action before the Tribunal Supremo (Supreme Court) challenging the order referred to in paragraph 25 above, in which he invoked the immunities provided for in Article 9 of the Protocol on the privileges and immunities of the European Union.29In response to a request for observations in that request, the Public Prosecutor’s Office, the Counsel for the State and the VOX political party submitted that Mr Junqueras Vies was not protected by the immunities in question.30In its order for reference, the Tribunal Supremo (Supreme Court) indicated, as a preliminary point, that it was referring to the Court of Justice questions of interpretation of EU law which arose, not in the context of the preparation of its ruling on the merits in the criminal proceedings brought against Mr Junqueras Vies, but rather in the context of the latter’s action against the order referred to in paragraph 25 above. The referring court considers, in addition, that the decision to be adopted on that action would not influence the substance of that court’s ruling on the merits, without prejudice to any effect ‑ which it describes as ‘reflex or indirect’ ‑ that acts adopted following the grant or refusal of authorisation to leave prison might have on that ruling. Lastly, it underlines that it is required to refer to the Court the questions set out in the order for reference, since it is the court adjudicating, in accordance with Article 71(3) of the Spanish Constitution, at first and last instance on the action brought by Mr Junqueras Vies.31As regards those questions, the Tribunal Supremo (Supreme Court) states, in the first place, that the order challenged by that action is a refusal to grant – to a person who was elected Member of the European Parliament while in provisional detention, but after the trial stage of the criminal proceedings brought against him had been opened – a special authorisation to leave prison in order to swear or pledge to abide by the Spanish Constitution which, under Article 224 of the Electoral Law, is a requirement for a person elected to that office.32In the second place, the referring court presents the context in which that order was adopted and the factors taken into account in it, noting, first of all, that the acts which Mr Junqueras Vies is accused of committing are liable to constitute particularly serious criminal offences and to attract correspondingly severe punishment, in that they sought to undermine the constitutional order.33Next, that court explains that the placement of Mr Junqueras Vies in provisional detention was ordered because of the risk that he would abscond.34Lastly, that court states that, during the adoption of the order by which it refused to grant Mr Junqueras Vies a special authorisation to leave prison, it not only took into account the factors mentioned in the two foregoing paragraphs, having regard to Article 503 of the Law on Criminal Procedure, but also carried out a balancing exercise of the various rights and interests which, in its view, had to be taken into consideration in that context.35In that respect, it explains that it ultimately gave priority to the provisional deprivation of Mr Junqueras Vies’ liberty over his right of political participation in the work of the European Parliament, in order to safeguard the objective of the criminal proceedings brought against him, amongst others, which would be irredeemably prejudiced if he were authorised to leave Spain. The Tribunal Supremo (Supreme Court) considers, in that respect, that a distinction must be made between, on the one hand, the election of Mr Junqueras Vies to the Congress of Deputies, following which there was no difficulty in authorising him to present himself at the seat of that legislative body before returning to prison, and, on the other hand, his election to the European Parliament. The participation of Mr Junqueras Vies in the first session of the new term of the European Parliament, and thus his travelling outside of Spain, would entail a loss of jurisdictional control over the measure of provisional detention imposed on him, in a context marked by the existence of limits on the judicial cooperation in criminal matters implemented within the European Union.36In the third place, the Tribunal Supremo (Supreme Court) justifies the first two questions referred by the need to ascertain the moment at which the status of Member of the European Parliament is acquired.37In that respect, it observes that, in the judgments of 12 May 1964, Wagner (101/63, EU:C:1964:28), and of 10 July 1986, Wybot (149/85, EU:C:1986:310), the Court interpreted the first paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union and held, first, that the term ‘sessions’ in that paragraph had to be defined autonomously, and not by reference to the national law of the Member States, in order to ensure immunities for the same period for all Members of the European Parliament, and secondly, that the temporal scope of those immunities had to be defined broadly, with the result that it covers the entire period that that institution sits in ordinary sessions.38However, the referring court notes that that case-law does not resolve the issue whether the immunities provided for in the first and second paragraphs of Article 9 of the Protocol on the privileges and immunities of the European Union are applicable during the period prior to the commencement of the first session held by the European Parliament following elections. That being said, that court adds that, in view of the wording of those provisions, their purpose and their legislative context, as interpreted by the Court in its judgments of 7 July 2005, Le Pen v Parliament (C‑208/03 P, EU:C:2005:429), and of 30 April 2009, Italy and Donnici v Parliament (C‑393/07 et C‑9/08, EU:C:2009:275), it could be considered that the immunities laid down in those provisions apply only to Members of the European Parliament who have taken their seat within that institution or, at the very least, persons who were included, by the competent national authorities, on the list of those having complied with the requirements, under the national law of the Member States, to acquire the status of a Member of the European Parliament. Nevertheless, both that interpretation and the interpretation according to which those immunities apply to all persons elected as Members of the European Parliament raise questions, in the referring court’s view, having regard to their practical consequences.39Finally, in the fourth place, in the event that the immunities provided for in the first and second paragraphs of Article 9 of the Protocol on the privileges and immunities of the European Union are applicable, the referring court has doubts regarding, in essence, the consequences that should follow from this with respect to the action brought by Mr Junqueras Vies against the order referred to in paragraph 25 above. More specifically, the referring court seeks to ascertain, by the third question referred, whether – and if so how and by whom – the protection attached to those immunities may be balanced against the other rights and interests to be taken into consideration in dealing with such an action, in the light of Article 39 of the Charter of Fundamental Rights of the European Union and the corresponding provisions of Article 3 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.40In those circumstances the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does Article 9 of [the Protocol on the privileges and immunities of the European Union] apply before the commencement of “sessions” to a person accused of serious criminal offences, who has been remanded in custody pursuant to a court order made in respect of acts preceding the commencement of an electoral process in which that person was declared elected to the European Parliament but who, by court order, has been refused a special authorisation to leave prison which would enable him to comply with the conditions laid down by the national electoral legislation referred to in Article 8 of the [Electoral Act]?If the answer is in the affirmative, where, because the elected person has not complied with the conditions laid down in the electoral legislation (a failure resulting from the limitation of his freedom of movement owing to the fact that he has been remanded in custody in the context of proceedings relating to serious offences), the body designated in the national electoral legislation has notified the European Parliament that that person has not acquired the status of Member of the Parliament and will not do so until such time as he complies with those conditions, does the broad interpretation of the term “sessions” continue to apply notwithstanding the temporary interruption of his expectation of taking his seat?If the answer is that the broad interpretation should continue to apply, where the newly elected member was in temporary custody in the context of proceedings relating to serious offences sufficiently in advance of the commencement of the electoral process, is the judicial authority which ordered that that person be remanded in custody obliged, in the light of the phrase “while they are travelling to and from the place of meeting of the European Parliament” in Article 9 of [the Protocol on the privileges and immunities of the European Union], to lift the custody measure absolutely, almost automatically, to enable compliance with the formalities and the requirement of travel to the European Parliament, or should recourse be had to a balancing exercise, of a relative nature, in the specific case between, on the one hand, the rights and interests arising from the interests of justice and due process and, on the other, those relating to the concept of immunity, as regards the need to ensure the functioning and independence of the [European] Parliament and the elected representative’s right to hold public office?’41On 14 October 2019, the referring court delivered a judgment on the merits in the criminal proceedings brought against Mr Junqueras Vies, amongst others, (‘the judgment of 14 October 2019’), in which it sentenced Mr Junqueras Vies to a 13-year term of imprisonment and to a 13-year disqualification from holding any public office, which entails the loss of all his current public offices and functions, including elective offices, and a ban on obtaining or exercising any new ones.42By a letter of the same day, the referring court notified that judgment to the Court, indicating that its request for a preliminary ruling was still relevant and useful, since the answers to the questions set out in its order for reference should be effective irrespective of whether the detention of Mr Junqueras Vies is provisional or results from a judgment passing sentence. The procedure before the Court The expedited procedure 43In its order for reference, the Tribunal Supremo (Supreme Court) requested that the reference for a preliminary ruling which gave rise to the present judgment be dealt with under an expedited procedure, in accordance with Article 105 of the Rules of Procedure of the Court of Justice. In support of its request, that court submitted, in essence, that the questions referred concerned the status of Member of the European Parliament and the composition of that institution, that the Court’s replies to those questions could lead, indirectly, to the suspension of the deprivation of Mr Junqueras Vies’ liberty, and that that deprivation of liberty corresponded to the situation referred to in the fourth paragraph of Article 267 TFEU.44Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or, exceptionally, of his own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.45In the present case, on 19 July 2019, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to grant the referring court’s request mentioned in paragraph 43 above. That decision was motivated by the fact that, first, Mr Junqueras Vies was being held in provisional detention when the request for a preliminary ruling was lodged, with the result that the questions referred by the Tribunal Supremo (Supreme Court) had to be regarded as being raised in the context of a case having regard to a person in custody, within the meaning of the fourth paragraph of Article 267 TFEU and, secondly, those questions sought the interpretation of a provision of EU law liable, by its very nature, to have an effect on the continued detention of Mr Junqueras Vies, in the event that that provision were applicable to him (see, to that effect, order of the President of the Court of 30 September 2011, Achughbabian, C‑329/11, not published, EU:C:2011:630, paragraphs 9 to 12, and, by analogy, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 29 to 31). The request that the oral part of the procedure be reopened 46By document lodged at the Court Registry on 12 November 2019, following the delivery of the Advocate General’s Opinion, Mr Junqueras Vies requested the Court to order that the oral part of the procedure be reopened, submitting that a new fact had arisen in that the Tribunal Supremo (Supreme Court) had notified to him, on 30 October 2019, an order suspending the execution of the disqualification from holding any public office that had been imposed on him by the judgment of 14 October 2019.47In that respect, Article 83 of the Rules of Procedure provides that the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court or where the case must be decided on the basis of an argument which has not been debated between the interested persons.48In the present case, however, it must be noted that the new fact invoked in the request that the oral part of the procedure be reopened occurred, as is clear from the very wording of that request, in the context of the criminal proceedings referred to in paragraph 30 above and not in that of the action brought against the order mentioned in paragraph 25 above, which led the Tribunal Supremo (Supreme Court) to make a reference to the Court.49In the light of the foregoing, the Court considers, after hearing the Advocate General, that that new fact was not of such a nature as to be a decisive factor for the decision of the Court.50Accordingly, there is no need to order that the oral part of the procedure be reopened. Admissibility of the request for a preliminary ruling 51In response to questions put to it at the hearing before the Court, concerning the potential impact of the judgment of 14 October 2019 on the request for a preliminary ruling and on the actions that the Tribunal Supremo (Supreme Court) could take in the light of the Court’s answers to its questions, the Public Prosecutor’s Office replied that it would be for the referring court to give due effect to the judgment delivered in the present case and, in the event that it followed from that judgment that Mr Junqueras Vies enjoyed an immunity on the basis of Article 9 of the Protocol on the privileges and immunities of the European Union, to determine the effects of that immunity in the context of the action brought by Mr Junqueras Vies against the order referred to in paragraph 25 above.52As for the Spanish Government, it submitted, in essence, that, in the event that Mr Junqueras Vies enjoyed an immunity on the basis of subparagraph (a) of the first paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union, that immunity would have no effect.53In its view, the material content of that immunity is defined by reference to the national law of the Member States and the Tribunal Supremo (Supreme Court) noted, in its order referred to in paragraph 21 above, that Spanish law guarantees immunity to Spanish deputies and senators only with regard to criminal proceedings in which the trial stage had not yet been opened when they were elected or acquired the status of deputy or senator. In the present case, the order for reference highlighted that the trial stage of the criminal proceedings referred to in paragraph 30 above had been opened before the election of Mr Junqueras Vies to the European Parliament. Consequently, no immunity would prevent Mr Junqueras Vies’ continued provisional detention. Moreover, he is no longer being held in provisional detention, but rather, as result of his conviction on 14 October 2019, serving a custodial sentence.54Thus, the Spanish Government appears to consider that, because the questions referred concern, in essence, the existence of an immunity, they are hypothetical, and that that is even more so since the delivery of the judgment of 14 October 2019, with the result that the admissibility of the request for a preliminary ruling is questionable.55According to the Court’s settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).56It follows that questions referred by the national courts enjoy a presumption of relevance and that the Court may refuse to rule on those questions only where it is quite obvious that the interpretation that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to those questions (see, to that effect, judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).57In the present case, first, it follows unambiguously from the letter of the Tribunal Supremo (Supreme Court) mentioned in paragraph 42 above that that court considers that a preliminary ruling remains necessary to enable it to deliver its judgment on the action which gave rise to the present case and that its questions remain fully relevant.58Secondly, it is clear from that letter and from the statements in the order for reference summarised in paragraphs 30, 31 and 36 to 39 above that the interpretation sought by the Tribunal Supremo (Supreme Court) relates directly to the purpose of the main action and that the problem raised by that action and by the request for a preliminary ruling is not hypothetical, but real, and, moreover, remains in full after the delivery of the judgment of 14 October 2019. The referring court was required, when it made the reference to the Court, and is still required at the date of delivery of the present judgment, irrespective of the judgment of 14 October 2019, to adjudicate, as the court of first and last instance, on the action brought by Mr Junqueras Vies against the order mentioned in paragraph 25 above, whereby that court refused to grant him a special authorisation to leave prison in order to enable him to comply with a requirement under Spanish law following his election to the European Parliament. In addition, that court seeks to ascertain, for that purpose, whether Mr Junqueras Vies enjoys an immunity under Article 9 of the Protocol on the privileges and immunities of the European Union and, if so, what the effects of that immunity are.59It follows that the request for a preliminary ruling is admissible and, accordingly, that it is necessary to reply to the questions raised by the referring court. Consideration of the questions referred 60As a preliminary point, it should be noted that it follows from the order for reference, as summarised in paragraphs 24 and 25 above, that, after Mr Junqueras Vies had been officially declared elected to the European Parliament by the competent national authority, the Tribunal Supremo (Supreme Court) refused to grant him a special authorisation to leave prison that would have enabled him to complete a formality which, under Spanish law, is a requirement in order to acquire the status of Member of the European Parliament and, after completing that formality, to travel to the place of meeting of that institution in order to take part in the first session of the parliamentary term following the elections to the European Parliament held on 26 May 2019.61In that context, by its three questions, which should be examined together, the Tribunal Supremo (Supreme Court) asks, in essence, whether Article 9 of the Protocol on the privileges and immunities of the European Union must be interpreted as meaning that a person who was officially declared elected to the European Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the European Parliament, in order to take part in its first session, must be regarded as enjoying an immunity under that article. If so, the referring court asks, in addition, whether that immunity entails that the measure of provisional detention imposed on the person concerned must be lifted, in order to enable that person to travel to the European Parliament and to complete the necessary formalities there.62In that respect, Article 9 of the Protocol on the privileges and immunities of the European Union establishes, in its first and second paragraphs, immunities enjoyed by ‘Members of the European Parliament’. However, that article does not define the concept of a ‘Member of the European Parliament’, and it must therefore be interpreted in the light of its context and purpose.63As regards the context, it should be borne in mind, first, that Article 10(1) TEU provides that the functioning of the Union is to be founded on the principle of representative democracy, which gives concrete form to the value of democracy referred to in Article 2 TEU (see, to that effect, judgment delivered today, Puppinck and Others v Commission, C‑418/18 P, paragraph 64).64Implementing that principle, Article 14(3) TEU provides that the Members of the European Parliament, an institution of the European Union, are to be elected for a term of five years by direct universal suffrage in a free and secret ballot.65It follows from that provision that the status of Member of the European Parliament arises from being elected by direct universal suffrage in a free and secret ballot, while the term of office of the Members of that institution constitutes the main attribute of that status.66Secondly, as regards the procedure for electing Members of the European Parliament, Article 223(1) TFEU provides, first, that it is for the European Parliament to draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all the Member States or in accordance with principles common to all Member States, and, secondly, that it is for the Council of the European Union to lay down those provisions.67On 20 September 1976, the Electoral Act was adopted, which sets out the common principles applicable to the election of the Members of the European Parliament by direct universal suffrage.68In that regard, first of all, the first paragraph of Article 8 of that act provides that, subject to the other provisions of that act, ‘the electoral procedure shall be governed in each Member State by its national provisions’. In addition, Article 12 of that act provides, inter alia, that the European Parliament ‘shall verify the credentials of [M]embers of the European Parliament’ and ‘take note of the [election] results declared officially by the Member States’.69It follows from those provisions, read together, that, as EU law currently stands, the Member States remain competent, in principle, to regulate the electoral procedure and, following that procedure, to declare officially the election results. The European Parliament has no general competence to call into question the validity of such a declaration or to review whether it complies with EU law (see, to that effect, judgment of 30 April 2009, Italy and Donnici v Parliament, C‑393/07 and C‑9/08, EU:C:2009:275, paragraphs 55 to 57, 60 and 67).70In addition, it follows from those provisions that, by ‘tak[ing] note’ of the election results declared officially by the Member States, the European Parliament necessarily recognises that the persons who have been officially declared elected have, as a result of this, become Members of that institution, which is why it must exercise its competence as regards those Members by verifying their credentials.71As the Advocate General pointed out in point 70 of his Opinion, those provisions must therefore be understood as meaning that the acquisition of the status of Member of the European Parliament, for the purposes of Article 9 of the Protocol on the privileges and immunities of the European Union, occurs because of and at the time of the official declaration of the election results carried out by the Member States.72Next, the Electoral Act defines the temporal limits of the term of office for which Members of the European Parliament are elected by stipulating, in Article 5(1) and (2), that that term of office coincides with the five-year period which begins at the opening of the first session following each election, with the result that it begins and ends at the same time as that five-year period.73In that respect, it follows from Article 11(3) and (4) of the Electoral Act that the ‘new’ European Parliament is to meet, without needing to be convened, on the first Tuesday after expiry of an interval of one month from the end of the electoral period and that the powers of the ‘outgoing’ European Parliament are to cease upon the opening of the first sitting of that ‘new’ European Parliament. In addition, in accordance with Article 12 of that act, at that first sitting the ‘new’ European Parliament is to verify the credentials of its Members and to rule on any disputes which may arise out of the provisions of that act.74It follows that, unlike the status of Member of the European Parliament – which is acquired at the time a person is officially declared elected, as noted in paragraph 71 above, and establishes a link between that person and the institution of which he or she now forms part – the term of office of a Member of the European Parliament establishes a link between that person and the parliamentary term for which he or she was elected. That latter term does not begin until the opening of the first session of the ‘new’ European Parliament held after the election, which occurs, by definition, after the official declaration of the election results by the Member States.75Lastly, the Electoral Act provides, in Article 6(2), that the Members of the European Parliament are to enjoy the immunities established by the Protocol on the privileges and immunities of the European Union.76As regards the legal source of those immunities, Article 343 TFEU provides that the European Union is to enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Union. Although that article therefore refers to that protocol as regards the determination of the conditions under which immunities are to be ensured, it nevertheless requires that the European Union and, in particular, the Members of its institutions, enjoy the immunities necessary for the performance of its tasks. It follows that those conditions, as determined by that protocol and – in so far as that protocol refers to the law of the Member States – by national legislation, must ensure that the European Parliament is fully able to perform the tasks entrusted to it.77In that connection, it follows from both the wording of Article 9 of the Protocol on the privileges and immunities of the European Union and the title of Chapter III, in which that article is contained, that those immunities are granted to ‘Members of the European Parliament’, and therefore to persons who have acquired that status as a result of the official declaration of the election results by the Member States, as indicated in paragraph 71 above.78As regards the immunities thus granted to Members of the European Parliament, the first paragraph of Article 9 of that protocol provides for immunities which are enjoyed by those Members equally, during the entire duration of the sessions of a given term of the European Parliament, even if it is not actually sitting (see, to that effect, judgment of 10 July 1986, Wybot, 149/85, EU:C:1986:310, paragraphs 12 and 27).79However, the second paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union has a different temporal scope.80That provision provides that the immunity also applies to the Members of the European Parliament while they are travelling to and from the place of meeting of the European Parliament, and therefore, inter alia, while they are travelling to the first sitting held after the official declaration of the election results, in order to allow the new parliament to hold its inaugural session and to verify the credentials of its Members, as noted in paragraph 73 above. Those Members therefore enjoy the immunity in question before their term of office has begun.81It follows from all of the foregoing that a person who has been officially declared elected to the European Parliament must be regarded as having acquired, as a result of this and from that time, the status of Member of that institution, for the purposes of Article 9 of the Protocol on the privileges and immunities of the European Union, and as enjoying, on that basis, the immunity provided for in the second paragraph of that article.82That interpretation is consistent with the objectives pursued by the Protocol on the privileges and immunities of the European Union, which consists – as follows from the Court’s case-law – in ensuring that the institutions of the European Union have full and effective protection against hindrances or risks to their proper functioning and independence (see, to that effect, judgment of 10 July 1986, Wybot, 149/85, EU:C:1986:310, paragraphs 12 and 22; order of 13 July 1990, Zwartveld and Others, C‑2/88‑IMM, EU:C:1990:315, paragraph 19, and judgment of 22 March 2007, Commission v Belgium, C‑437/04, EU:C:2007:178, paragraph 56).83In the case of the European Parliament, those objectives imply not only that, in accordance with the principle of representative democracy referred to in paragraph 63 above and with Article 14 TEU, its composition must reflect faithfully and completely the free expression of choices made by the citizens of the European Union, by direct universal suffrage, as regards the persons by whom they wish to be represented during a given term, but also that the European Parliament must be protected, in the exercise of its tasks, against hindrances or risks to its proper operation.84On that twofold basis, the immunities granted to Members of the European Parliament are intended to ensure the independence of that institution in the performance of its tasks, as the European Court of Human Rights noted as regards different forms of parliamentary immunity established in democratic political systems (see, to that effect, ECtHR, 17 May 2016, Karácsony and Others v. Hungary, CE:ECHR:2016:0517JUD004246113, § 138, and ECtHR, 20 December 2016, Uspaskich v. Lithuania, CE:ECHR:2016:1220JUD001473708, § 98).85In accordance with those objectives and with the requirement referred to in paragraph 76 above, the immunity provided for in the second paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union serves to protect the proper functioning and independence of the European Parliament, as the Advocate General pointed out in points 92 and 94 of his Opinion, by guaranteeing that each of its Members has, after the official declaration of the election results, the ability to travel unimpeded to the first sitting of the new term, in order to comply with the procedures set out in Article 12 of the Electoral Act, and to allow the new parliament to assemble.86That immunity thereby also serves to ensure the effectiveness of the right to stand as a candidate at elections guaranteed in Article 39(2) of the Charter of Fundamental Rights, which constitutes the expression in the Charter of the principle of direct universal suffrage in a free and secret ballot enshrined in Article 14(3) TEU and Article 1(3) of the Electoral Act (see, by analogy, judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 44), by allowing persons who have been elected Members of the European Parliament to complete the steps necessary to take their seats.87Accordingly, a person such as Mr Junqueras Vies, who was officially declared elected to the European Parliament while the subject of a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the European Parliament, in order to take part in its first sitting, must be regarded as enjoying immunity under the second paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union.88In those circumstances, it is necessary to examine, as the referring court asks, whether that immunity entails lifting the measure of provisional detention imposed on that person, in order to allow that person to travel to the European Parliament and complete the necessary formalities.89In that respect, as indicated in paragraph 24 above, Mr Junqueras Vies became a Member of the European Parliament on 13 June 2019, when the competent Spanish authorities officially declared the results of the elections to the European Parliament held on 26 May 2019. On that date, he was being held in provisional detention.90It follows from the considerations set out in paragraphs 83 to 86 above that the immunity laid down in the second paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union precludes, inter alia, that a measure of provisional detention may impede the freedom of Members of the European Parliament to travel to the place where the first sitting of the new parliamentary term is to take place, in order to complete the formalities required by the Electoral Act.91In those circumstances, if the competent national authority considers that a measure of provisional detention should be maintained against a person who has acquired the status of Member of the European Parliament, it should, under the third paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union, as soon as possible request the European Parliament to waive the immunity granted by the second paragraph of that article.92In the light of the foregoing, it should be stated in reply to the referring court that the existence of the immunity provided for in the second paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union entails that the measure of provisional detention imposed on the person who enjoys that immunity must be lifted, in order to allow that person to travel to the European Parliament and complete the necessary formalities there. That being said, if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of the European Parliament, it must as soon as possible request the European Parliament to waive that immunity, on the basis of the third paragraph of Article 9 of that protocol.93In addition, it is for the referring court to assess the effects that should be attached to the immunities enjoyed by Mr Junqueras Vies in any other proceedings, such as those referred to in paragraph 30 above, in compliance with EU law and, inter alia, the principle of sincere cooperation referred to in the first subparagraph of Article 4(3) TEU (see, to that effect, judgment of 21 October 2008, Marra, C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 41). In that context, it must take into account, in particular, the elements referred to in paragraphs 64, 65, 76 and 82 to 86 above.94In the light of all the foregoing, the answer to the questions referred is that Article 9 of the Protocol on the privileges and immunities of the European Union must be interpreted as meaning that:a person who was officially declared elected to the European Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the European Parliament in order to take part in its first session, must be regarded as enjoying an immunity under the second paragraph of that article;that immunity entails that the measure of provisional detention imposed on the person concerned must be lifted, in order to enable that person to travel to the European Parliament and complete the necessary formalities there. That being said, if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of the European Parliament, it must as soon as possible request the European Parliament to waive that immunity, on the basis of the third paragraph of Article 9 of that protocol. Costs 95Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 9 of the Protocol (No 7) on the privileges and immunities of the European Union must be interpreted as meaning that: a person who was officially declared elected to the European Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the European Parliament in order to take part in its first session, must be regarded as enjoying an immunity under the second paragraph of that article; that immunity entails that the measure of provisional detention imposed on the person concerned must be lifted, in order to enable that person to travel to the European Parliament and complete the necessary formalities there. That being said, if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of the European Parliament, it must as soon as possible request the European Parliament to waive that immunity, on the basis of the third paragraph of Article 9 of that protocol. [Signatures]( *1 ) Language of the case: Spanish. | 60c4e-7251a90-4cde | EN |
When the public is not put in a position to actually participate in the environmental impact assessment for a project, a time limit for bringing proceedings against the decision granting consent for the project cannot be relied on against the public | 7 November 2019 ( *1 )(Reference for a preliminary ruling — Environment — Assessment of the effects of certain projects on the environment — Public participation in decision-making and access to justice — Date from which the time for bringing proceedings starts to run)In Case C‑280/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Symvoulio tis Epikrateias (Council of State, Greece), made by decision of 21 March 2018, received at the Court on 24 April 2018, in the proceedings Alain Flausch, Andrea Bosco, Estienne Roger Jean Pierre Albrespy, Somateio ‘Syndesmos Iiton’, Somateio ‘Elliniko Diktyo — Filoi tis Fysis’, Somateio ‘Syllogos Prostasias kai Perithalpsis Agrias Zois — SPPAZ’ v Ypourgos Perivallontos kai Energeias, Ypourgos Oikonomikon, Ypourgos Tourismou, Ypourgos Naftilias kai Nisiotikis Politikis, intervener: 105 Anonimi Touristiki kai Techniki Etaireia Ekmetallefsis Akiniton, THE COURT (First Chamber),composed of J.-C. Bonichot (Rapporteur), President of the Chamber, M. Safjan and L. Bay Larsen, Judges,Advocate General: J. Kokott,Registrar: R. Schiano, Administrator,having regard to the written procedure and further to the hearing on 27 March 2019,after considering the observations submitted on behalf of:–Mr Flausch, Mr Bosco, Mr Albrespy, Somateio ‘Syndesmos Iiton’, Somateio ‘Elliniko Diktyo — Filoi tis Fysis’ and Somateio ‘Syllogos Prostasias kai Perithalpsis Agrias Zois — SPPAZ’, by G. Dellis and A. Chasapopoulos, dikigoroi,105 Anonimi Touristiki kai Techniki Etaireia Ekmetallefsis Akiniton, by G. Giannakourou and D. Valasis, dikigoroi,the Greek Government, by K. Georgiadis, G. Karipsiadis, A. Banos and G. Papadaki, acting as Agents,the European Commission, by G. Gattinara, M. Noll-Ehlers, M. Konstantinidis and M. Patakia, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 23 May 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Articles 6 and 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1; ‘the EIA Directive’).2The request has been made in proceedings brought by Alain Flausch, Andrea Bosco, Estienne Roger Jean Pierre Albrespy, Somateio ‘Syndesmos Iiton’, Somateio ‘Elliniko Diktyo — Filoi tis Fysis’ and Somateio ‘Syllogos Prostasias kai Perithalpsis Agrias Zois — SPPAZ’ against the Ypourgos Perivallontos kai Energeias (Minister for the Environment and Energy, Greece), the Ypourgos Oikonomikon (Minister for Finance, Greece), the Ypourgos Tourismou (Minister for Tourism, Greece) and the Ypourgos Naftilias kai Nisiotikis Politikis (Minister for Maritime Affairs and the Islands, Greece) concerning the legality of the measures authorising construction of a tourist resort on the island of Ios (Greece). Legal context EU law 3Recitals 7 and 16 of the EIA Directive state:‘(7)Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. That assessment should be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the public likely to be concerned by the project in question.…(16)Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.’4Article 1(2) of the EIA Directive provides:‘For the purposes of this Directive, the following definitions shall apply:(d)“public” means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;(e)“public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest;…’5Article 2(1) of the EIA Directive provides:‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Those projects are defined in Article 4.’6As regards public participation in decision-making, Article 6(2) to (5) of the EIA Directive is worded as follows:‘2. The public shall be informed, whether by public notices or by other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:(a)the request for development consent;(b)the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;(c)details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;the nature of possible decisions or, where there is one, the draft decision;an indication of the availability of the information gathered pursuant to Article 5;(f)an indication of the times and places at which, and the means by which, the relevant information will be made available;(g)details of the arrangements for public participation made pursuant to paragraph 5 of this Article.3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:any information gathered pursuant to Article 5;in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information [(OJ 2003 L 41, p. 26)], information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 of this Directive and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.’7Article 9(1) of the EIA Directive provides in respect of the decision relating to the project:‘When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures …’8Regarding review procedures, Article 11 of the EIA Directive states:‘1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:having a sufficient interest, or alternatively;maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. …’ Greek law 9Article 1(1) of Law 4014/2011 concerning environmental consent for works and activities, environmental regulation of structures erected without planning permission and other provisions within the competence of the Ministry of the Environment, Energy and Climate Change (FEK Α’ 209) divides public-sector and private-sector projects into two categories (A and B) according to their environmental impact. The first category (A) comprises works and activities which are likely to have significant effects on the environment and for which an environmental impact assessment (‘EIA’) is necessary in order for specific conditions and restrictions intended to protect the environment to be imposed. The second category (B) comprises projects that have less serious environmental effects.10Articles 3, 4 and 19 of Law 4014/2011 govern public participation. Under Article 12 of that law, various authorisations are brought together in a decision approving the environmental conditions (‘the DAEC’).11Article 30(9) of Law 4014/2011 contains a transitional provision under which the existing provisions concerning consultation of the interested parties and the public participation procedure in the context of an environmental consent are to remain in force until an electronic environmental register is introduced. Under those provisions, that procedure is initiated by posting in the offices of the administrative authority of the region concerned, and by publishing in the local press, an announcement of information relating to the project and an invitation to all interested persons to examine and comment on the EIA.12Under Article 19a of Law 4014/2011, the DAEC must be published on the internet in the month following its adoption. If that time limit is not complied with, the approval is void. The posting of the DAEC on that special site is equivalent to publicity imposed by law and gives rise to the presumption that every interested person has knowledge thereof enabling him to bring an action for annulment or pursue any other legal remedy.13By virtue of Article 46 of Presidential Decree 18/1989 codifying statutory provisions for the Council of State (FEK A’ 8), applications for annulment are to be made, unless otherwise provided, within 60 days (90 days for non-residents) of the day after notification of the contested measure or publication thereof where the latter is required by law, or, otherwise, of the date on which the applicant obtained full knowledge of the measure. For the purposes of that provision, as interpreted by settled case-law, where the law requires an individual administrative measure to be published in accordance with specific detailed rules, the time limit laid down for bringing an action for annulment of that measure starts to run, so far as concerns the persons covered, from notification of the act or the date on which they became aware of its content and, so far as concerns interested third parties, from the publication of that act. The dispute in the main proceedings and the questions referred for a preliminary ruling 14The dispute in the main proceedings arose in relation to a project for the creation of a tourist resort on the island of Ios. That island, which is in the Cyclades and falls under the South Aegean administrative region (Greece), has a surface area of roughly 100 km2 and a permanent population of roughly 2000 residents.15The contested project involves the construction of a hotel, a spa, other accommodation, ancillary works such as a desalination plant, port facilities, artificial beaches, a bridge linking an islet to land, a road network and other infrastructure. It extends over a plot with an area of roughly 27 ha, of which more than 18 ha are built upon. It takes up an area of coast, foreshore and sea.16In accordance with the Greek legislation applicable to works falling within the category of the project at issue in the main proceedings, namely category A, an EIA was carried out.17On 2 August 2013, a notice inviting any interested person to participate in the EIA was published in the Syros local newspaper (Koini Gnomi) and posted in the offices of the South Aegean region, located on the island of Syros (Greece), 55 nautical miles away from Ios. It was also on Syros that the EIA file was kept and consultation was to take place.18It is apparent from the documents before the Court that the link between Ios and Syros is not daily, the journey takes several hours because a high speed vessel does not operate on the route and the cost is not negligible.19On 8 August 2014, the Minister for the Environment and Energy and the Minister for Tourism adopted the DAEC approving the project for the creation of the tourist resort on the island of Ios and the environmental conditions that are applicable to it.20That decision was posted, on 11 August 2014, on the notice portal Diavgeia and, on 8 September 2014, on the website www.aepo.ypeka.gr of the Ministry of the Environment (‘the Ministry of the Environment’s website’) envisaged in Article 19a of Law 4014/2011.21Before the referring court, the applicants in the main proceedings, that is to say, three natural persons who own properties on the island of Ios but reside in Belgium, Italy and France, respectively, and three associations, challenged the DAEC of 8 August 2014 by an action not brought until 19 February 2016.22They maintain that they did not become aware of the DAEC of 8 August 2014 until 22 December 2015, the date on which they were able to observe the commencement of works to develop the site.23105 Anonimi Touristiki kai Techniki Etaireia Ekmetallefsis Akiniton, the company holding the approvals and consents relating to the project, intervened in the proceedings and pleaded that the action was out of time.24It was in those circumstances that the Simvoulio tis Epikrateias (Council of State, Greece) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Can Articles 6 and 11 of Directive [2011/92], read in combination with the provisions of Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that provisions of national law as set out in paragraphs 8, 9 and 10 [of the order for reference], in which it is laid down that procedures preceding the adoption of decisions approving environmental conditions for projects and activities with a significant environmental impact (publication of environmental impact studies, public information and participation in the consultation process) are to be conducted and monitored primarily by the wider administrative unit (region) and not by the municipality concerned, are compatible with those articles?(2)Can Articles 6 and 11 of Directive [2011/92], read in combination with the provisions of Article 47 of the [Charter of Fundamental Rights], be interpreted as meaning that a system of provisions of national law as set out in the abovementioned paragraphs, which ultimately provides that publication of decisions approving the environmental conditions for projects and activities with a significant environmental impact, by means of posting them on a special website, creates a presumption of full knowledge on the part of every interested party for the purpose of exercising the legal remedy available under current legislation (application for annulment before the Symvoulio tis Epikrateias [Council of State]) within a period of sixty (60) days, is compatible with those articles, bearing in mind the legislative provisions governing publication of environmental impact studies and public information and participation during the procedure to approve the environmental conditions for those projects and activities, which provisions place the wider administrative unit (region), rather than the municipality concerned, at the centre of those procedures?’ Consideration of the questions referred The first question 25By its first question, the referring court asks, in essence, whether Article 6 of the EIA Directive must be interpreted as meaning that a Member State may carry out the procedures for public participation in decision-making that relate to a project at the level of the headquarters of the competent regional administrative authority, and not at the level of the municipal unit within which the site of the project falls.26It should be pointed out, in that regard, that Article 6(5) of the EIA Directive expressly leaves to the Member States the task of determining the detailed arrangements both for informing the public and for consulting the public concerned.27That being so, in the absence of EU rules concerning the procedural arrangements pursuant to which the Member States must comply with their obligations regarding information and public participation in decision-making in environmental matters, it is, under settled case-law, for the domestic legal system of each Member State to determine those arrangements in accordance with the principle of procedural autonomy, provided, however, that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, by analogy, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 29).28It is appropriate at the outset to dispel any doubt as to compliance with the condition relating to the principle of equivalence in a situation where an environmental consent is applied for such as the situation at issue in the main proceedings. Subject to the checks which are a matter for the referring court, it is not apparent from the documents before the Court, and nor has it been contended, that similar situations are governed by national procedural arrangements more favourable than those which are laid down for implementation of the EIA Directive and have been applied in the main proceedings.29As regards the principle of effectiveness, on the other hand, the referring court wonders about three aspects of the procedure at issue in the main proceedings.30It mentions, first, the way in which the public was informed of the project’s existence and of the consultation that was to take place on it.31In that regard, it should be pointed out that, under Article 6(4) of the EIA Directive, the opportunities that the public concerned is granted to participate early in the environmental decision-making procedure must be effective.32Consequently, as the Advocate General has observed in point 53 of her Opinion, any communication on the matter is not in itself sufficient. The competent authorities must ensure that the information channels used may reasonably be regarded as appropriate for reaching the members of the public concerned, in order to give them adequate opportunity to be kept informed of the activities proposed, the decision-making process and their opportunities to participate early in the procedure.33It is for the referring court to determine whether such requirements were complied with in the procedure prior to the main proceedings.34However, in order to provide it with a useful answer, it may be pointed out that, inasmuch as, on the date on which the invitation to participate in an EIA was made public, most of the interested persons resided or owned a property on the island of Ios, the posting of a notice in the regional administrative headquarters, located on the island of Syros, even accompanied by publication in a local newspaper of the island of Syros, would not appear to have been liable to contribute sufficiently to informing the public concerned.35An assessment to the contrary would be possible only if it were found that the local newspaper in question had at the time a very wide circulation and readership on the island of Ios. Otherwise, methods of communication such as those adopted in the main proceedings could be regarded as sufficient only in the absence of other more suitable means of communication which could have been applied by the competent authorities without thereby requiring disproportionate effort, such as posting notices in the most frequented places on the island of Ios or at the very place where the project was to be carried out.36As the Court does not have specific information regarding the manner in which the local newspaper of the island of Ios is circulated, it is for the referring court to establish whether, in the light of the considerations set out in the previous paragraph, the informing of the public concerned was adequate in the case of the procedure at issue.37The referring court expresses reservations, second, in respect of the place where the file containing the information relating to the project at issue in the main proceedings was made available to the public.38In that regard, the conditions for access to the participation procedure file must be such as to enable the public concerned to exercise its rights effectively, which entails accessibility to the file under easy conditions.39Any difficulties encountered by the public concerned in this regard may, however, be justified by the existence of a disproportionate administrative burden for the competent authority.40While it is for the referring court to determine whether those requirements were complied with in the procedure that led to the main proceedings, it should be observed that, as the Advocate General has noted in points 71 and 72 of her Opinion, that appraisal will have to take account of the effort required of the public concerned for crossing between the island of Ios and the island of Syros, and of the possibilities that were open to the competent authorities for enabling, with proportionate effort, the file to be made available on the island of Ios.41The referring court’s doubts relate, third and finally, to the way in which the consultation was conducted on the island of Syros.42It should be noted that, under Article 6(5) of the EIA Directive, the detailed arrangements for consulting the public concerned are to be determined by the Member States, that provision mentioning only, by way of example, consultation ‘by written submissions or by way of a public inquiry’.43It is for the referring court to establish whether the principle of effectiveness was, in that regard, complied with in the procedure at issue in the main proceedings, by assessing compliance with requirements analogous to those referred to in paragraphs 38 and 39 above.44Accordingly, the answer to the first question is that Article 6 of the EIA Directive must be interpreted as precluding a Member State from carrying out the procedures for public participation in decision-making that relate to a project at the level of the headquarters of the competent regional administrative authority, and not at the level of the municipal unit within which the site of the project falls, where the specific arrangements implemented do not ensure that the rights of the public concerned are actually complied with, a matter which is for the national court to establish. The second question 45By its second question, the referring court asks in essence whether, in the light of the answer given to the first question, Articles 9 and 11 of the EIA Directive must be interpreted as precluding legislation, such as that at issue in the main proceedings, which provides that the announcement of the approval of a project on a specific website sets running a period of 60 days for bringing proceedings.46First of all, it should be pointed out that Article 11 of the EIA Directive, to which this question relates in part, has been interpreted as meaning that its scope is limited to the aspects of a dispute which concern the right of the public concerned to participate in decision-making in accordance with the detailed rules laid down by that directive. On the other hand, challenges based on any other rules set out in that directive and, a fortiori, on any other legislation, whether of the European Union or the Member States, do not fall within that article (see, to that effect, judgment of 15 March 2018, North East Pylon Pressure Campaign and Sheehy, C‑470/16, EU:C:2018:185, paragraphs 36 and 39).47That said, Article 11 of the EIA Directive is applicable in a situation such as that at issue in the main proceedings, even if the challenge concerns only the decision granting consent and not questions of public participation in decision-making.48Article 11(2) of the EIA Directive provides that the Member States are to determine at what stage the decisions, acts or omissions envisaged in Article 11(1) of the directive may be challenged.49It is apparent from a reply of the Greek Government to a question asked by the Court at the hearing that Greek law provides that any defects concerning public participation must be raised in the action against the final decision granting consent.50Next, pursuant to Article 9(1) of the EIA Directive, the competent authority or authorities are to inform the public in accordance with the appropriate procedures of the decision to grant or refuse development consent. Whilst that provision lays down certain conditions relating to the content of the announcement, it is silent as to the procedure to be followed.51As, moreover, no rule relating to the triggering and calculation of the period for bringing proceedings is laid down in the EIA Directive, it must be held that the EU legislature intended to reserve those questions for the procedural autonomy of the Member States, in compliance with the principles of equivalence and effectiveness referred to in paragraph 27 above; however, for reasons analogous to those set out in paragraph 28 above, only the second of those principles appears to be at issue here.52The referring court’s doubts in the light of the principle of effectiveness should be dispelled as regards publication of the decision on the internet, or the existence of a time limit for bringing proceedings, per se.53Indeed, Article 6(2) of the EIA Directive expressly refers to electronic media, where available, as a means of communicating information to the public.54As to time limits for bringing proceedings, the Court has recognised that it is compatible with the principle of effectiveness to lay down reasonable time limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, to that effect, judgment of 20 December 2017, Caterpillar Financial Services, C‑500/16, EU:C:2017:996, paragraph 42).55In particular, the Court does not regard as an excessive difficulty the imposition of periods for bringing proceedings which start to run only from the date on which the person concerned was aware or at least ought to have been aware of the announcement (see, to that effect, judgments of 27 February 2003, Santex, C‑327/00, EU:C:2003:109, paragraphs 55 and 57; of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 45; and of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 96).56It would, on the other hand, be incompatible with the principle of effectiveness to rely on a period against a person if the conduct of the national authorities in conjunction with the existence of the period had the effect of totally depriving him of the opportunity to enforce his rights before the national courts, that is to say, if the authorities, by their conduct, were responsible for the delay in the application (see, to that effect, judgment of 19 May 2011, Iaia and Others, C‑452/09, EU:C:2011:323, paragraph 21).57Finally, it is apparent from Article 11(3) of the EIA Directive that the Member States must pursue an objective of wide access to justice when they lay down the rules governing review procedures in respect of public participation in decision-making (see, to that effect, judgments of 11 April 2013, Edwards and Pallikaropoulos, C‑260/11, EU:C:2013:221, paragraphs 31 and 44, and of 17 October 2018, Klohn, C‑167/17, EU:C:2018:833, paragraph 35).58It may be pointed out in this regard that, as is clear from the answer to the first question, the public concerned must be informed of the consent procedure and of its opportunities to participate in it adequately and sufficiently in advance. If that is not the case, members of the public concerned cannot expect to be informed of a final decision granting consent.59That is especially so in circumstances such as those at issue in the main proceedings. Indeed, the mere ability to have access ex post on the Ministry of the Environment’s website to a decision granting consent cannot be regarded as being sufficient in the light of the principle of effectiveness since, in the absence of sufficient information on the launch of the public participation procedure, no one can be deemed informed of the publication of the corresponding final decision.60Consequently, the answer to the second question is that Articles 9 and 11 of the EIA Directive must be interpreted as precluding legislation, such as that at issue in the main proceedings, which results in a period for bringing proceedings that starts to run from the announcement of consent for a project on the internet being relied on against members of the public concerned where they did not previously have an adequate opportunity to find out about the consent procedure in accordance with Article 6(2) of that directive. Costs 61Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: 1. Article 6 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as precluding a Member State from carrying out the procedures for public participation in decision-making that relate to a project at the level of the headquarters of the competent regional administrative authority, and not at the level of the municipal unit within which the site of the project falls, where the specific arrangements implemented do not ensure that the rights of the public concerned are actually complied with, a matter which is for the national court to establish. 2. Articles 9 and 11 of Directive 2011/92 must be interpreted as precluding legislation, such as that at issue in the main proceedings, which results in a period for bringing proceedings that starts to run from the announcement of consent for a project on the internet being relied on against members of the public concerned where they did not previously have an adequate opportunity to find out about the consent procedure in accordance with Article 6(2) of that directive. [Signatures]( *1 ) Language of the case: Greek. | b0136-77b40e9-4a6f | EN |
When a passenger boards a train without a ticket, he concludes a contract with the carrier | 7 November 2019 ( *1 )(References for a preliminary ruling — Rail transport — Passengers’ rights and obligations — Regulation (EC) No 1371/2007 — Article 3(8) — Transport contract — Concept — Passenger without a ticket at the time of boarding a train — Unfair terms in consumer contracts — Directive 93/13/EEC — Article 1(2) and Article 6(1) — General conditions of carriage of a railway undertaking — Mandatory statutory or regulatory provisions — Penalty clause — Powers of the national court)In Joined Cases C‑349/18 to C‑351/18,REQUESTS for a preliminary ruling under Article 267 TFEU from the vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium), made by decisions of 25 May 2018, received at the Court on 30 May 2018, in the proceedings Nationale Maatschappij der Belgische Spoorwegen (NMBS) v Mbutuku Kanyeba (C‑349/18), Larissa Nijs (C‑350/18), Jean-Louis Anita Dedroog (C‑351/18),THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, I. Jarukaitis (Rapporteur), E. Juhász, M. Ilešič and C. Lycourgos, Judges,Advocate General: G. Pitruzzella,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:–the Belgian Government, by C. Van Lul and C. Pochet and by J.-C. Halleux, acting as Agents,the European Commission, by N. Ruiz García and P. Vanden Heede, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 11 June 2019,gives the following Judgment 1These requests for a preliminary ruling concern the interpretation of Article 9(4) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ 2007 L 315, p. 14) and of Article 2(a) and Articles 3 and 6 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).2The requests have been made in proceedings between the Nationale Maatschappij der Belgische Spoorwegen (NMBS) (Belgian national railway company (SNCB)), on the one hand, and Mr Mbutuku Kanyeba (Case C‑349/18), Mrs Larissa Nijs (Case C‑350/18) and Mr Jean-Louis Anita Dedroog (Case C‑351/18), on the other hand, concerning additional surcharges claimed from the latter for having travelled by train without a transport ticket. European Union law Directive 93/13 3The 13th recital of Directive 93/13 states:‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the [European Union] are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’.4Article 1 of that directive provides:‘1. The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.2. The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the [Union] are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’5Article 2(a) of that directive states:‘For the purposes of this Directive:(a)“unfair terms” means the contractual terms defined in Article 3’.6Article 3 of that directive provides:‘1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.…3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’7According to Article 6(1) of Directive 93/13:‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’8Article 7(1) of that directive is worded as follows:‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’ Regulation No 1371/2007 9Recitals 1 to 3 of Regulation No 1371/2007 state:‘(1)In the framework of the common transport policy, it is important to safeguard users’ rights for rail passengers and to improve the quality and effectiveness of rail passenger services in order to help increase the share of rail transport in relation to other modes of transport.(2)The Commission’s communication “Consumer Policy Strategy 2002-2006” [OJ 2002 C 137, p. 2] sets the aim of achieving a high level of consumer protection in the field of transport in accordance with Article 153(2) of the Treaty.(3)Since the rail passenger is the weaker party to the transport contract, passengers’ rights in this respect should be safeguarded.’10Article 1(a) of that regulation provides:‘This Regulation establishes rules as regards the following:the information to be provided by railway undertakings, the conclusion of transport contracts, the issuing of tickets and the implementation of a Computerised Information and Reservation System for Rail Transport,’.11Article 3 of that regulation contains the following definitions:‘For the purposes of this Regulation the following definitions shall apply:“carrier” means the contractual railway undertaking with whom the passenger has concluded the transport contract or a series of successive railway undertakings which are liable on the basis of this contract;(8)“transport contract” means a contract of carriage for reward or free of charge between a railway undertaking or a ticket vendor and the passenger for the provision of one or more transport services;(10)“through ticket” means a ticket or tickets representing a transport contract for successive railway services operated by one or several railway undertakings;(16)“General Conditions of Carriage” means the conditions of the carrier in the form of general conditions or tariffs legally in force in each Member State and which have become, by the conclusion of the contract of carriage, an integral part of it;…’12Chapter II of Regulation No 1371/2007, entitled ‘Transport contract, information and tickets’, includes Articles 4 to 10 thereof. Article 4 of that regulation, entitled ‘Transport contract’, provides:‘Subject to the provisions of this Chapter, the conclusion and performance of a transport contract and the provision of information and tickets shall be governed by the provisions of Title II and Title III of Annex I.’13Article 9 of that regulation, which concerns the availability of tickets, through tickets and reservations, provides, in paragraphs 2 to 4 thereof:‘2. Without prejudice to paragraph 4, railway undertakings shall distribute tickets to passengers via at least one of the following points of sale:ticket offices or selling machines;(b)telephone, the Internet or any other widely available information technology;(c)on board trains.3. Without prejudice to paragraphs 4 and 5, railway undertakings shall distribute tickets for services provided under public service contracts via at least one of the following points of sale:4. Railway undertakings shall offer the possibility to obtain tickets for the respective service on board the train, unless this is limited or denied on grounds relating to security or antifraud policy or compulsory train reservation or reasonable commercial grounds.’14Annex I to Regulation No 1371/2007, entitled ‘Extract from Uniform Rules concerning the contract for international carriage of passengers and luggage by rail (CIV)’, consists of Titles II to VII of Appendix A to the Convention Concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention Concerning International Carriage by Rail of 3 June 1999 (‘the COTIF’). Annex I therefore includes Title II of that appendix, entitled ‘Conclusion and performance of the contract of carriage’, which contains Articles 6 to 11 of that appendix.15Article 6, entitled ‘Contract of carriage’, of Appendix A to the COTIF provides:‘1. By the contract of carriage the carrier shall undertake to carry the passenger as well as, where appropriate, luggage and vehicles to the place of destination and to deliver the luggage and vehicles at the place of destination.2. The contract of carriage must be confirmed by one or more tickets issued to the passenger. However, subject to Article 9 the absence, irregularity or loss of the ticket shall not affect the existence or validity of the contract which shall remain subject to these Uniform Rules.3. The ticket shall be prima facie evidence of the conclusion and the contents of the contract of carriage.’16Article 7, which concerns the ‘Ticket’, of Appendix A, provides, in paragraphs 1 and 2 thereof:‘1. The General Conditions of Carriage shall determine the form and content of tickets as well as the language and characters in which they are to be printed and made out.2. The following, at least, must be entered on the ticket:any other statement necessary to prove the conclusion and contents of the contract of carriage and enabling the passenger to assert the rights resulting from this contract.’17Article 8(1) of Appendix A states that, ‘subject to a contrary agreement between the passenger and the carrier, the carriage charge shall be payable in advance’.18Article 9 of Appendix A is entitled ‘Right to be carried. Exclusion from carriage’. Paragraph 1 thereof provides:‘The passenger must, from the start of his journey, be in possession of a valid ticket and produce it on the inspection of tickets. The General Conditions of Carriage may provide:that a passenger who does not produce a valid ticket must pay, in addition to the carriage charge, a surcharge;that a passenger who refuses to pay the carriage charge or the surcharge upon demand may be required to discontinue his journey;if and under what conditions a refund of the surcharge shall be made.’ The disputes in the main proceedings and the questions referred for a preliminary ruling 19In 2015, Mr Kanyeba was the subject of four findings in which it appeared that he had travelled by train without a ticket (Case C‑349/18), in breach of Articles 156 to 160 of the SNCB’s general conditions of carriage then in force. In 2013 and 2015, five similar findings were made against Mrs Nijs (Case C‑350/18). Likewise, in 2014 and 2015, Mr Dedroog was the subject of 11 similar findings (Case C‑351/18).20The SNCB offered those persons the opportunity to regularise their situations by paying either immediately the price of the journey, plus an ‘on board’ surcharge, or, within 14 days after the establishment of the infringement, a surcharge of EUR 75 or, with respect to infringements prior to 2015, the transport price plus EUR 60. After that 14-day deadline, the defendants in the main proceedings again had the opportunity to pay a surcharge of EUR 225 or, with respect to infringements prior to 2015, the transport price plus EUR 200.21Since none of the defendants in the main proceedings made use of those opportunities, the SNCB sued them before the referring court, namely the vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium), seeking an order that they pay it respectively, in Cases C‑349/18 to C‑351/18, the amounts of EUR 880.20, EUR 1 103.90 and EUR 2394, in addition to the costs of the proceedings in each case. In the context of those requests, the SNCB claims that the legal relationships between it and the defendants in the main proceedings are not contractual, but regulatory, since the latter did not by a ticket. The latter did not appear before the referring court.22That court considers that, in the light of the Court’s case-law, it is required to examine of its own motion the application of the regime on unfair terms where the service is provided to a consumer. It notes that the cases before it concern, firstly, ‘consumers’, for the purposes of the doctrine of unfair terms, since that concept covers according to it ‘any natural person who is acting for purposes which are outside his or her trade, business, craft or profession’ and, secondly, an ‘undertaking’ for the purposes of that doctrine, by referring in that regard to a judgment of the Hof van Cassatie (Court of Cassation, Belgium). It notes that it is, as a result, bound to carry out the examination of the application of that doctrine and, in that regard, questions the nature of the legal relationship between the SNCB and the defendants in the main proceedings as well as, consequently, whether a transport contract was concluded.23In that regard, it notes that the legal basis for the SNCB’s general conditions of carriage, which determine the respective rights and obligations of that company and of passengers, is not clear. According to one argument, they are purely contractual terms. According to a second argument, they are regulations, for the purposes of administrative law. There is also a controversy, in Belgian law, regarding the nature of the legal relationship between the SNCB and passengers. According to one theory, that relationship is always contractual, even where the passenger does not have a valid ticket. The mere fact of entering an area in which it is necessary to have a ticket gives rise to a transport contract, which is thus a pure adhesion contract. According to a second theory, the relationship is contractual where the passenger obtained a ticket, but regulatory in the absence of such a ticket. In that case, there would not be an agreement, since the passenger has no intention of paying for the carriage and the transport company has no intention of carrying out the carriage without consideration. The referring court notes that that discussion no longer appears to be relevant in Belgian law, since the Grondwettelijk Hof (Constitutional Court, Belgium) and the Hof van Cassatie (Court of Cassation) held that the doctrine of unfair terms applies also to regulatory legal relationships.24The referring court notes however that the doctrine of unfair terms presupposes the existence of a contract and considers that the concept of ‘contract’ is an EU law concept. In that regard, it refers to Article 9(4) of Regulation No 1371/2007 and raises the question of the time of the conclusion of the contract of carriage, and more particularly of whether it takes place on entering the area where it is in principle necessary to be in possession of a ticket or when the ticket is purchased.25It considers, moreover, that the question of the start of the contract of carriage should be tied in with Article 2(a) and Article 3 of Directive 93/13. In the cases before it, the SNCB’s general conditions of carriage, whether they be contractual or regulatory, should be regarded as conditions which have not been individually negotiated for the purposes of the latter provision.26In the light of those considerations, it raises the question whether a legal contractual relationship is always created between a transport company and a passenger, even where that passenger uses the services of that transport operator without obtaining a ticket. If such is not the case, it questions whether the doctrine of unfair terms applies to passengers who use public transport without having obtained a ticket.27In the event that the Court finds that the SNCB’s general conditions of carriage must be examined in the light of the doctrine of unfair terms, the referring court notes that, in Belgian law, an unfair term is invalid and that, according to the Court’s case-law, EU law precludes, in essence, a national court which finds a term in a contract concluded between a seller or supplier and a consumer to be unfair, from modifying that contract by revising the content of that term. Belgian legal literature however has criticised that prohibition of common law modification for being too sweeping. That court thus questions whether there are circumstances in which a seller or supplier has an interest in a term being maintained, but in which consumers have an interest in its scope being limited by the court and, in such a case, whether those circumstances can be abstractly defined.28In those circumstances, the vredegerecht te Antwerpen (Magistrates’ Court, Antwerp) decided to stay the proceedings and to refer the following questions, which are worded identically in each of the joined cases, to the Court for a preliminary ruling:Must Article 9(4) of [Regulation No 1371/2007], read in conjunction with Article 2(a) and Article 3 of Directive 93/13, be interpreted as meaning that a contractual legal relationship is always created between the transport company and the passenger, even when the latter makes use of the services provided by the transport company without purchasing a ticket?If the answer to the previous question is in the negative, does the protection offered by the doctrine of unfair terms also extend to a passenger who makes use of public transport without having acquired a ticket and who, by that action, under the general terms and conditions of the transport company, which are considered to be generally binding on the basis of their regulatory nature or, alternatively, by virtue of their publication in an official State publication, is obliged to pay a surcharge in addition to the fare?Does Article 6 of Directive 93/13 on unfair terms in consumer contracts, which provides that “Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms”, preclude a court in all cases from moderating the term deemed to be unfair or from applying ordinary law instead?(4)If the answer to the previous question is in the negative, what then are the circumstances in which a national court may proceed to moderate the term found to be unfair or to replace it by the ordinary law?(5)If the aforementioned questions cannot be answered in abstracto, the question then arises as to whether, if the national railway company, having apprehended a fare-dodger, imposes a civil penalty in the form of a surcharge, whether or not in addition to the fare, and the court were to find that the surcharge imposed is unfair within the meaning of Article 2(a), read in conjunction with Article 3, of Directive 93/13, Article 6 of that directive precludes the court from declaring the term void and applying ordinary liability law to compensate the national railway company for the damage suffered.’ Procedure before the Court 29By decision of the President of the Court of 11 July 2018, Cases C‑349/18 to C‑351/18 were joined for the purposes of the written procedure and the judgment. Consideration of the questions referred The first question 30At the outset, it should be noted, first, that, by its first question, the referring court seeks to obtain an interpretation of Article 9(4) of Regulation No 1371/2007 in the light of Directive 93/13. That regulation does not however contain any references to Directive 93/13. Moreover, it follows from a comparison of Article 1 of each that that regulation and that directive have different subject matters. Therefore, the provisions of Directive 93/13 cannot be relevant to the interpretation of Regulation No 1371/2007 (see, by analogy, judgments of 9 September 2004, Meiland Azewijn, C‑292/02, EU:C:2004:499, paragraph 40; of 15 December 2011, Møller, C‑585/10, EU:C:2011:847, paragraphs 37 and 38; and of 11 September 2014, Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 40).31Secondly, if, by that question, the referring court raises the issue of the interpretation of Article 9(4) of Regulation No 1371/2007, it should be noted that that provision concerns the opportunity which must in principle be offered by rail undertakings to obtain tickets for the service at issue on board the train. However, it follows from the orders for reference that it is not so much that opportunity that is at issue in the main proceedings, but whether a passenger travelling by train without having purchased a ticket must be considered, by boarding the train, to have entered into a contractual relationship with the rail undertaking, for the purposes of that regulation. It is therefore not Article 9(4) of that regulation, as such, which must be interpreted for the purposes of the main proceedings.32It follows however from the Court’s settled case-law that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 36 and the case-law cited).33In the light of those considerations and the grounds for the requests for a preliminary ruling, it must be understood that, by its first question, the referring court asks, in essence, whether Article 3(8) of Regulation No 1371/2007 must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of a ‘transport contract’ for the purposes of that provision.34Under Article 3(8) of Regulation No 1371/2007, the concept of ‘transport contract’, for the purposes of that regulation, covers ‘a contract of carriage for reward or free of charge between a railway undertaking or a ticket vendor and the passenger for the provision of one or more transport services’.35It should be noted that, when interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules (see judgments of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited, and of 22 November 2012, Westbahn Management, C‑136/11, EU:C:2012:740, paragraph 33 and the case-law cited).36As regards the wording of Article 3(8) of Regulation No 1371/2007, it should be noted, firstly, that the word ‘contract’ is generally understood to designate an agreement by consensus intended to produce legal effects. Secondly, in the context of the field covered by that regulation and in the light of the wording of that provision, that effect consists principally in the obligation imposed on the rail undertaking to provide to the passenger one or more transport services and the obligation imposed on the passenger to pay the price of that transport, unless the service is provided free of charge.37It follows therefore from the findings in the previous paragraph that, on the one hand, by allowing free access to its train and, on the other hand, by boarding that train with an intention to travel, both the rail undertaking and the passenger demonstrate their agreement to enter into a contractual relationship, so that the conditions necessary for establishing the existence of a transport contract are, in principle, satisfied. The wording of Article 3(8) of Regulation No 1371/2007 however does not allow it to be determined whether the possession, by the passenger, of a ticket is essential for the purposes of considering that there exists a ‘transport contract’ within the meaning of that provision.38As regards the context of Article 3(8) of Regulation No 1371/2007, it should be noted, in the first place, that the term ‘transport contract’ occurs in several other provisions of that regulation.39Therefore, Article 3(10) of that regulation defines the concept of ‘through ticket’ as referring to ‘a ticket or tickets representing a transport contract for successive railway services operated by one or several railway undertakings’.40Article 4 of that regulation, which specifically concerns the ‘transport contract’, provides that, ‘subject to the provisions of [Chapter II of Regulation No 1371/2007], the conclusion and performance of a transport contract and the provision of information and tickets shall be governed by the provisions of Title II and Title III of Annex I’ to that regulation.41In that regard, Title II of Appendix A of the COTIF relating to the conclusion and performance of the contract of carriage is, inter alia, reproduced in Annex I to Regulation No 1371/2007. According to Article 6(1) of that appendix, ‘by the contract of carriage the carrier shall undertake to carry the passenger as well as, where appropriate, luggage and vehicles to the place of destination and to deliver the luggage and vehicles at the place of destination’, Article 6(2) stating that the contract of carriage must be confirmed by one or more tickets issued to the passenger and that, subject to Article 9 of that appendix, the absence, irregularity or loss of the ticket does not affect the existence or validity of the contract which remains subject to the uniform rules established by the COTIF. Article 6(3) of that appendix adds that the ticket is prima facie evidence of the conclusion and the contents of the contract of carriage.42Moreover, Article 7 of Appendix A of the COTIF provides, in paragraph 1 thereof, that the general conditions of carriage are to determine, in particular, the form and content of tickets and, in paragraph 2(c) thereof, that all necessary information to prove the conclusion and contents of the contract of carriage and enabling the passenger to assert the rights resulting from that contract must in particular be included on the ticket.43In that regard, it should be noted that it follows from Article 9(2) and (3) of Regulation No 1371/2007 that, without prejudice to paragraph 4 of that article, railway undertakings are required to distribute tickets to passengers via at least one of three — or one of two in relation to tickets for services provided under public service contracts — points of sale listed in those provisions, including distribution on board trains.44In the second place, it should be noted that it follows from Article 8(1) of Appendix A of the COTIF, included in Annex I to that regulation, that it is only in the absence of a contrary agreement between the passenger and the carrier that the carriage charge is payable in advance.45Moreover, admittedly, Article 9 of Appendix A, subject to which Article 6 thereof applies, provides, in the first sentence of paragraph 1 thereof, that the passenger must, from the start of his journey, be in possession of a valid ticket and produce it for inspection. However, Article 9 states, in the second sentence, respectively paragraphs (a) and (b) thereof, that the general conditions of carriage may provide that a passenger who does not produce a valid ticket must pay, in addition to the carriage charge, a surcharge, and that a passenger who refuses to pay the carriage charge or the surcharge upon demand may be required to discontinue his journey.46According to Article 3(16) of Regulation No 1371/2007, the concept of ‘General Conditions of Carriage’, for the purposes of that regulation, covers ‘the conditions of the carrier in the form of general conditions or tariffs legally in force in each Member State and which have become, by the conclusion of the contract of carriage, an integral part of it’, the ‘carrier’ being defined by Article 3(2) of that regulation as ‘the contractual railway undertaking with whom the passenger has concluded the transport contract or a series of successive railway undertakings which are liable on the basis of this contract’.47In so far as a passenger who does not produce a valid ticket or refuses to immediately pay for a ticket, in accordance with Article 9 of Appendix A of the COTIF, included in Annex I to Regulation No 1371/2007, the general conditions of carriage may be relied upon against that passenger, and in so far as those conditions, according to Article 3(16) of that regulation, read in conjunction with Article 3(2) thereof, form, for the purposes of that regulation, an integral part of the transport contract between the rail undertaking and the passenger by the conclusion of the latter, it follows that such an undertaking which allows free access to its trains and a passenger who boards such a train for the purposes of travel must be considered to be parties to a ‘transport contract’, as soon as that passenger is thus on board the train. Otherwise, those general conditions of carriage could not be relied upon against that passenger on the basis of Regulation No 1371/2007.48It thus follows clearly from those elements that the ticket, referred to in Appendix A as a ‘ticket’, is only the instrument which embodies the transport contract, for the purposes of Regulation No 1371/2007.49The wording of Article 3(8) of Regulation No 1371/2007 and the context of that provision, consequently, allow it to be considered that the concept of ‘transport contract’, within the meaning of that provision must, for the purposes of that regulation, be understood as being independent from the possession, by the passenger, of a ticket and in the sense that it covers a situation in which a passenger boards a freely accessible train for the purposes of travel without having obtained a ticket.50That interpretation is supported by the objectives pursued by Regulation No 1371/2007. Firstly, in accordance with Article 1(a) thereof, the purpose of that regulation is, in particular, to establish rules concerning the conclusion of transport contracts. Secondly, recital 1 of that regulation points out in particular that, in the context of the common transport policy, it is necessary to safeguard the rights of rail passengers. Moreover, it follows from recital 2 of that regulation that a high level of consumer protection in the field of transport must be achieved and, according to recital 3 thereof, since the rail passenger is the weaker party to the transport contract, his rights in this respect should be safeguarded.51It would be contrary to those objectives to consider that the concept of ‘transport contract’, for the purposes of Regulation No 1371/2007, must be interpreted as not covering a situation in which a passenger boards a freely accessible train for the purpose of travel without having obtained a ticket. If it were permissible to consider that such a passenger can, on the sole ground that he does not have a ticket when he boards a train, be regarded as not being a party to a contractual relationship with the rail undertaking which grants free access to its trains, that passenger could, in circumstances beyond his control, be deprived of the rights that that regulation attaches to the conclusion of a transport contract, which would undermine the objective pursued by that regulation of protecting rail passengers and which is noted in recitals 1 to 3 thereof.52Moreover, in the absence of provisions in that regard in Regulation No 1371/2007, such an interpretation is without prejudice to the validity of that contract or the consequences which could result from the non-performance, by one of the parties, of its contractual obligations, which, in the absence of provisions in that regard, remain governed by the applicable national law.53In the light of all of the foregoing considerations, the answer to the first question is that Article 3(8) of Regulation No 1371/2007 must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of ‘transport contract’ for the purposes of that provision. The second question 54Having regard to the reply given to the first question, there is no need to reply to the second question. The third and fifth questions 55By its third and fifth questions, which should be examined together, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 must be interpreted as precluding that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on that consumer or replace that term with a supplementary provision of national law. In that context, that court also asks whether Directive 93/13 must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, that the national court apply, in addition, provisions of its national law relating to non-contractual liability.56In that regard, it should be noted, first of all, that, in the present case, according to the information contained in the requests for a preliminary ruling, the penalty clause that the referring court could, where appropriate, declare to be unfair is part of the SNCB’s general conditions of carriage, in respect of which that court states that they are ‘considered to be generally binding on the basis of their regulatory nature’ and that they are part of a ‘publication in an official State publication’.57In the light of those explanations, it must be noted that, in accordance with Article 1(2) of Directive 93/13, contractual terms which reflect, in particular, mandatory statutory or regulatory provisions are not to be subject to the provisions of that directive.58According the Court’s settled case-law, as is apparent from the 13th recital of Directive 93/13, the exclusion provided for in Article 1(2) thereof extends to provisions of national law that apply between the parties to the contract independently of their choice and to provisions that apply by default, that is to say, in the absence of other arrangements established by the parties in that regard, and to contractual terms reflecting those provisions (see, to that effect, judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 26; of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraphs 30, 31 and 42; and order of 7 December 2017, Woonhaven Antwerpen, C‑446/17, not published, EU:C:2017:954, paragraph 25).59That exclusion is justified by the fact that, in principle, it may legitimately be supposed that the national legislature has struck a balance between all the rights and obligations of the parties to certain contracts, a balance which the EU legislature has expressly intended to preserve (see, to that effect, judgment of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraph 41 and the case-law cited, and order of 7 December 2017, Woonhaven Antwerpen, C‑446/17, not published, EU:C:2017:954, paragraph 26).60That exclusion from the scope of application of Directive 93/13 requires therefore, according to the Court’s case-law, two conditions to be met. Firstly, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory (judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 78, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 28).61Moreover, it results, in essence, from the Court’s case-law that that exclusion covers mandatory statutory or regulatory provisions other than those relating to the scope of the national court’s powers to assess the unfairness of a contractual term (see, to that effect, judgments of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraphs 39 and 40 and the case-law cited, and of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 44).62Determining whether those conditions have been met in each individual case is a matter for the national court (see, to that effect, judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 33, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 29 and the case-law cited).63In carrying out that determination, that court must take into account the fact that, having regard to the purpose of Directive 93/13, namely the protection of consumers against unfair terms included in contracts concluded with consumers by sellers or suppliers, the exception provided for in Article 1(2) of the directive is to be strictly construed (see, to that effect, judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 77, and of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 54 and the case-law cited).64Having said that, it is for the Court to analyse the third and fifth questions on the basis of the premiss, whose accuracy will be for the referring court to verify, that the term which that court intends to declare unlawful does not fall outside the scope of Directive 93/13 in accordance with Article 1(2) thereof.65According to Article 6(1) of Directive 93/13, Member States are to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer and that the contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.66The Court has interpreted that provision as meaning that it is for the national court to establish all the consequences, arising under national law, of a finding that the term in question is unfair in order to ensure that the consumer is not bound by that term. In that regard, the Court has stated that, where the national court considers a contractual term to be unfair, it is required to disapply it in order that it may not produce binding effects with regard to the consumer, except if the consumer opposes that non-application (see, to that effect, judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 49 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 52).67The Court has also held that, where a national court finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, Article 6(1) of Directive 93/13 must be interpreted as precluding a rule of national law which allows the national court to modify that contract by revising the content of that term (judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 77 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 53). In particular, the Court has held that that provision cannot be interpreted as allowing the national court, where it establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, to moderate the amount of the penalty imposed on the consumer instead of excluding the application of that clause in its entirety with regard to that consumer (judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 59, and of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 29).68The contract must therefore continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 57 and the case-law cited, and of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 28).69If it were open to the national court to revise the content of unfair terms, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be adjusted, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 58, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 54 and the case-law cited).70Moreover, it is true that the Court acknowledged an exception to that principle by holding that Article 6(1) of Directive 93/13 does not preclude a national court from removing, in accordance with the principles of contract law, an unfair term and replacing it with a supplementary provision of national law, provided that that substitution is consistent with the objective of Article 6(1) of Directive 93/13 and enables real balance between the rights and obligations of the parties to be restored which re-establishes equality between them. However, the Court has limited that possibility to cases in which the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, so that the consumer would thus be penalised (see, to that effect, judgments of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21 paragraph 33 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraphs 56 and 57).71However, in the main proceedings, and subject to verifications to be carried out, in that regard, by the referring court, it does not appear that the possible invalidation of the penalty clause at issue is capable of entailing the cancelation of the contracts in their entirety and thus of exposing consumers to particularly unfavourable consequences.72As regards the question whether, in circumstances such as those at issue in the main proceedings, it is possible, for the referring court, in addition, to apply the rules of its national law governing non-contractual liability, it suffices to note that the purpose of Directive 93/13, in accordance with Article 1(1) thereof, is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer and that it does not contain any provisions relating to non-contractual liability.73Therefore, the question whether circumstances such as those at issue in the main proceedings are, moreover, capable of falling within the ambit of the law governing non-contractual liability does not come within the scope of Directive 93/13, but of national law. Consequently, it is not necessary to examine it in the context of the present requests for a preliminary ruling.74In the light of all of the foregoing considerations, the answer to the third and fifth questions is that Article 6(1) of Directive 93/13 must be interpreted as precluding, firstly, that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on the consumer and, secondly, that a national court replace that term, in accordance with the principles of its contract law, with a supplementary provision of national law, except where the contract at issue cannot continue in existence in the event that the unfair term is deleted and where the cancelation of the contract in its entirety exposes consumers to particularly unfavourable consequences. The fourth question 75In view of the answer to the third and fifth questions, it is unnecessary to reply to the fourth question. Costs 76Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fifth Chamber) hereby rules: 1. Article 3(8) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of a ‘transport contract’ for the purposes of that provision. 2. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding, firstly, that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on the consumer and, secondly, that a national court replace that term, in accordance with the principles of its contract law, with a supplementary provision of national law, except where the contract at issue cannot continue in existence in the event that the unfair term is deleted and where the cancelation of the contract in its entirety exposes consumers to particularly unfavourable consequences. [Signatures]( *1 ) Language of the case: Dutch. | 500eb-3cbaf3c-49b7 | EN |
Polish rules relating to the retirement age of judges and public prosecutors, adopted in July 2017, are contrary to EU law | 5 November 2019 ( *1 )(Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by EU law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of judges of the ordinary Polish courts — Possibility of continuing to carry out the duties of judge beyond the newly set age, by authorisation of the Minister for Justice — Article 157 TFEU — Directive 2006/54/EC — Articles 5(a) and 9(1)(f) — Prohibition of discrimination based on sex in matters of pay, employment and occupation — Establishment of different retirement ages for men and women holding the position of judge of the ordinary Polish courts or of the Sąd Najwyższy (Supreme Court, Poland) or that of public prosecutor in Poland)In Case C‑192/18,ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 15 March 2018, European Commission, represented by A. Szmytkowska, K. Banks, C. Valero and H. Krämer, acting as Agents,applicant,v Republic of Poland, represented by B. Majczyna, K. Majcher and S. Żyrek, acting as Agents, and W. Gontarski, adwokat,defendant,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal (Rapporteur), M. Vilaras, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, L. Bay Larsen, D. Šváby and K. Jürimäe, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 8 April 2019,after hearing the Opinion of the Advocate General at the sitting on 20 June 2019,gives the following Judgment 1By its application, the European Commission requests the Court to declare:–first, that, in establishing, by Article 13(1) to (3) of the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017 (Dz. U. 2017, item 1452; ‘the Amending Law of 12 July 2017’), a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court, Poland) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23), andsecond, that, in lowering, by Article 13(1) of the Amending Law of 12 July 2017, the retirement age applicable to judges of the ordinary Polish courts and in granting the Minister for Justice (Poland) the right to decide whether to authorise extension of the period of active service as a judge, pursuant to Article 1(26)(b) and (c) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Legal context EU law The EU Treaty 2Article 2 TEU reads as follows:‘The [European] Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’3Article 19(1) TEU provides:‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ The FEU Treaty 4Article 157 TFEU provides:‘1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.2. For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.…3. The European Parliament and the Council [of the European Union], acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’ The Charter 5Title VI of the Charter, headed ‘Justice’, includes Article 47, headed ‘Right to an effective remedy and to a fair trial’, which provides:‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ……’6Article 51 of the Charter states:‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’ Directive 2006/54 7Recitals 14 and 22 of Directive 2006/54 state:‘(14)Although the concept of pay within the meaning of Article [157 TFEU] does not encompass social security benefits, it is now clearly established that a pension scheme for public servants falls within the scope of the principle of equal pay if the benefits payable under the scheme are paid to the worker by reason of his/her employment relationship with the public employer, notwithstanding the fact that such scheme forms part of a general statutory scheme. According to the [judgments of 28 September 1994, Beune (C‑7/93, EU:C:1994:350), and of 12 September 2002, Niemi (C‑351/00, EU:C:2002:480)], that condition will be satisfied if the pension scheme concerns a particular category of workers and its benefits are directly related to the period of service and calculated by reference to the public servant’s final salary. For reasons of clarity, it is therefore appropriate to make specific provision to that effect.(22)In accordance with Article [157(4) TFEU], with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment does not prevent Member States from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. Given the current situation and bearing in mind Declaration No 28 to the Amsterdam Treaty, Member States should, in the first instance, aim at improving the situation of women in working life.’8As set out in Article 1 of Directive 2006/54:‘The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.To that end, it contains provisions to implement the principle of equal treatment in relation to:(c)occupational social security schemes.9Article 2(1) of Directive 2006/54 states:‘For the purposes of this Directive, the following definitions shall apply:(a)“direct discrimination”: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;(f)“occupational social security schemes”: schemes not governed by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [(OJ 1979 L 6, p. 24)] whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.’10Headed ‘Positive action’, Article 3 of Directive 2006/54 provides:‘Member States may maintain or adopt measures within the meaning of Article [157(4) TFEU] with a view to ensuring full equality in practice between men and women in working life.’11Chapter 2, headed ‘Equal treatment in occupational social security schemes’, of Title II of Directive 2006/54 contains inter alia Articles 5, 7 and 9.12Article 5 of Directive 2006/54 states:‘… there shall be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards:the scope of such schemes and the conditions of access to them;13Headed ‘Material scope’, Article 7 of Directive 2006/54 provides:‘1. This chapter applies to:occupational social security schemes which provide protection against the following risks:(iii)old age, including early retirement,2. This Chapter also applies to pension schemes for a particular category of worker such as that of public servants if the benefits payable under the scheme are paid by reason of the employment relationship with the public employer. The fact that such a scheme forms part of a general statutory scheme shall be without prejudice in that respect.’14As set out in Article 9 of Directive 2006/54, headed ‘Examples of discrimination’:‘1. Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, for:fixing different retirement ages; Polish law The Law on the ordinary courts 15Article 69(1) and (3) of the ustawa — Prawo o ustroju sądów powszechnych (Law on the system of ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070; ‘the Law on the ordinary courts’) was worded as follows:1. A judge shall retire upon reaching 67 years of age … unless, no later than 6 months before reaching that age, he submits a statement to the Minister for Justice indicating his wish to continue in his post and presents a certificate, issued in accordance with the rules specified for candidates applying for a judicial post, confirming that his health is no impediment to performing the duties of a judge.3. In the event that a judge submits the statement and presents the certificate referred to in paragraph 1, that judge may continue in his post only until he reaches 70 years of age. …’16Article 69(1) of the Law on the ordinary courts was amended, first of all, by the ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw (Law amending the Law on retirement pensions and other pensions payable from the Social Security Fund and certain other laws) of 16 November 2016 (Dz. U. 2017, item 38; ‘the Law of 16 November 2016’), which lowered the retirement age of both female and male judges to 65 years. That amendment was to enter into force on 1 October 2017.17However, before that amendment even entered into force, Article 69(1) was further amended by Article 13(1) of the Amending Law of 12 July 2017, an enactment which entered into force on 1 October 2017. As a result of that amendment, a judge’s retirement age was set at 60 years for women and 65 years for men.18Article 1(26)(b) and (c) of the Amending Law of 12 July 2017 also inserted a new paragraph 1b in Article 69 of the Law on the ordinary courts and amended Article 69(3) thereof.19As a result of the amendments referred to in the previous two paragraphs, Article 69 provided:‘1. A judge shall retire upon reaching 60 years of age, in the case of women, or upon reaching 65 years of age, in the case of men, unless, no later than 6 months and no earlier than 12 months before reaching that age, he or she submits a statement to the Minister for Justice indicating his or her wish to continue in his or her post and presents a certificate, issued in accordance with the rules specified for candidates applying for a judicial post, confirming that his or her health is no impediment to performing the duties of a judge.1b. The Minister for Justice may consent to a judge continuing in his or her post, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts. In a situation where the procedure connected with the judge continuing in his or her post has still not come to an end after he or she has reached the age referred to in paragraph 1, the judge shall remain in post until such time as that procedure has come to an end.3. In the event that the Minister for Justice gives the consent referred to in paragraph 1b, a judge may continue in his or her post only until he reaches 70 years of age. …’20As set out in Article 91 of the Law on the ordinary courts:‘1. The level of remuneration for judges occupying equivalent judicial posts shall be differentiated according to the length of service or the functions performed:1c. The basic salary for a judge in a given year shall be based on the average remuneration in the second quarter of the previous year, published in the official gazette of the Republic of Poland (Monitor Polski) …2. The basic salary for a judge shall be expressed in grades, the level of which shall be determined through the application of multipliers to the basis for determining the basic salary referred to in paragraph 1c. The basic salary grades for individual judicial posts and the multipliers used to determine the level of the basic salary for judges in individual grades are set out in the annex to this Law. …7. In addition, remuneration for judges shall be differentiated by a seniority allowance amounting, as from the sixth year of service, to 5% of the basic salary and increasing each year by 1% until it reaches 20% of the basic salary.21Article 91a of the Law on the ordinary courts provides:‘1. A judge assuming a position at a [sąd rejonowy (district court, Poland)] shall be entitled to the grade 1 basic salary. A judge assuming a position at a [sąd okręgowy (regional court, Poland] shall be entitled to the grade 4 basic salary and if, while occupying a lower position, he was already receiving a grade 4 or grade 5 salary, he shall be entitled to the grade 5 or grade 6 basic salary, respectively. A judge assuming a position at a [sąd apelacyjny (court of appeal, Poland)] shall be entitled to the grade 7 basic salary and if, while occupying a lower position, he was already receiving a grade 7 or grade 8 salary, he shall be entitled to the grade 8 or grade 9 basic salary, respectively. …3. The basic salary for a judge shall be established at the next highest grade after the completion of 5 years’ service in a given judicial post.4. The length of service as a trainee judge shall be added to the length of service as a district court judge.22Article 13(1) of the Amending Law of 12 July 2017 amended Article 100(1) of the Law on the ordinary courts and inserted Article 100(4a) and (4b). Following those amendments, Article 100 provided:‘1. A judge who has been retired in the event of changes to the system of the courts or changes to the boundaries of judicial districts shall be entitled, until reaching the age of 60 years, in the case of women, and 65 years, in the case of men, to emoluments in the amount of remuneration received in the post most recently occupied.2. A judge who has retired or who has been retired on the grounds of age, illness or loss of strength shall be entitled to emoluments in the amount of 75% of the basic salary and length-of-service allowance received in the post most recently occupied.3. The emoluments referred to in paragraphs 1 and 2 shall be increased in accordance with changes to the amount of the basic salary for serving judges.4a. In the situation referred to in paragraph 1, a retired judge shall receive a one-off payment upon reaching the age of 60 years, in the case of women, and 65 years, in the case of men.4b. A judge who has returned to the post he previously occupied or a post equivalent to that previously occupied, in accordance with Article 71c(4) or Article 74(1a), shall, in the event of retirement or being retired, be entitled to a one-off payment in an amount consisting in the difference between the amount of the payment calculated on the day of retirement or being retired and the amount of the payment already paid. In the situation referred to in paragraph 1, the judge shall be entitled to the payment upon reaching the age of 60 years, in the case of women, and 65 years, in the case of men.’ The Law on the Public Prosecutor’s Office 23Article 127(1) of the ustawa Prawo o prokuraturze (Law on the Public Prosecutor’s Office) of 28 January 2016 (Dz. U. 2016, item 177) states:‘Unless otherwise provided for in this Law, the provisions of Articles 69 to 71, … Articles 99 to 102 … of the Law [on the ordinary courts] shall apply, mutatis mutandis, to public prosecutors. …’24As set out in Article 124 of the Law on the Public Prosecutor’s Office:‘1. The amount of remuneration for public prosecutors occupying equivalent public prosecutors’ posts shall be differentiated according to the length of service or the functions performed. …2. The basic salary for public prosecutors shall be expressed in grades, the level of which shall be determined through the application of multipliers to the basis for determining the basic salary for public prosecutors.3. A public prosecutor assuming a position in:a [prokuratura rejonowa (district public prosecutor’s office, Poland)] shall be entitled to the grade 1 basic salary;a [prokuratura okręgowa (regional public prosecutor’s office, Poland)] shall be entitled to the grade 4 basic salary and if, while occupying a lower position, he was already receiving a grade 4 or grade 5 salary, he shall be entitled to the grade 5 or grade 6 basic salary, respectively;a [prokuratura regionalna (supra-regional public prosecutor’s office, Poland)] shall be entitled to the grade 7 basic salary and if, while occupying a lower position, he was already receiving a grade 7 or grade 8 salary, he shall be entitled to the grade 8 or grade 9 basic salary, respectively.5. The basic salary for a public prosecutor shall be established at the next highest grade after the completion of 5 years’ service in a given public prosecutor’s post.6. The length of service as a trainee public prosecutor shall be added to the length of service as a public prosecutor in a [prokuratura rejonowa (district public prosecutor’s office)].11. A public prosecutor shall be entitled to a seniority allowance amounting, as from the sixth year of service, to 5% of the basic salary currently received by the public prosecutor and increasing by 1% for each subsequent year of service until it reaches 20% of the basic salary. After 20 years’ service the allowance shall be paid, regardless of the length of service beyond that period, in the amount of 20% of the basic salary currently received by the public prosecutor.25Article 13(3) of the Amending Law of 12 July 2017 amended certain other provisions of the Law on the Public Prosecutor’s Office, inserting in particular references to the new retirement ages for public prosecutors, that is to say, 60 years for women and 65 years for men. The 2002 Law on the Supreme Court 26Article 30(1) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 23 November 2002 (Dz. U. 2002, No 240, item 2052; ‘the 2002 Law on the Supreme Court’) set the retirement age for judges of the Sąd Najwyższy (Supreme Court) at 70 years. Article 30(2) provided, however, that judges who so requested could retire after reaching the age of 67 years.27Article 30(2) of the 2002 Law on the Supreme Court was amended, initially, by the Law of 16 November 2016 which lowered the age at which such a request could be made to 65 years. However, before that amendment even entered into force, that provision was amended again, by Article 13(2) of the Amending Law of 12 July 2017. As thus amended, Article 30(2) of the 2002 Law on the Supreme Court provided:‘A judge of [the Sąd Najwyższy (Supreme Court)] who so requests shall retire:(1)after reaching the age of 60 years, in the case of a woman, or 65 years, in the case of a man.28Articles 42 and 43 of the 2002 Law on the Supreme Court stated:‘Article 42.§ 4. The remuneration of a judge of [the Sąd Najwyższy (Supreme Court)] shall be set at the standard grade or the promotion grade. The promotion grade shall be 115% of the standard grade.§ 5. A judge of [the Sąd Najwyższy (Supreme Court)], on entering the service, shall receive a standard grade basic salary. After 7 years’ service, the basic salary for that judge shall increase to the promotion grade.Article 43. A judge of [the Sąd Najwyższy (Supreme Court)] shall be entitled to a seniority allowance increasing the basic salary every year by 1%, but not exceeding 20% of that salary. The period of service on which the amount of the allowance depends shall also include the period of service or the employment relationship preceding his appointment to a judicial post at [the Sąd Najwyższy (Supreme Court)], as well as periods of professional practice as a lawyer, legal adviser or notary.’29Article 50 of the 2002 Law on the Supreme Court was worded as follows:‘A retired judge of [the Sąd Najwyższy (Supreme Court)] shall be entitled to emoluments in the amount of 75% of the basic salary and length-of-service allowance received in the post most recently occupied. Those emoluments shall be increased at the same time as, and in an amount corresponding to, changes in the basic salary of serving judges of [the Sąd Najwyższy (Supreme Court)].’30The 2002 Law on the Supreme Court was repealed and replaced by the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. 2018, item 5; ‘the Law of 8 December 2017’), which entered into force on 3 April 2018. Pre-litigation procedure 31Since the Commission took the view that, as a result of the adoption of Article 1(26)(b) and (c) and Article 13(1) to (3) of the Amending Law of 12 July 2017, the Republic of Poland had failed to fulfil its obligations under (i) Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54 and (ii) the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, on 28 July 2017 it sent a letter of formal notice to the Republic of Poland. The latter replied by letter dated 31 August 2017 in which it denied any infringement of EU law.32On 12 September 2017, the Commission issued a reasoned opinion in which it maintained that the national provisions referred to in the previous paragraph infringed those provisions of EU law. Consequently, it called on the Republic of Poland to take the measures necessary to comply with the reasoned opinion within 1 month of receipt thereof. The Republic of Poland responded to the reasoned opinion by letter dated 12 October 2017 in which it denied the alleged infringements.33In those circumstances, the Commission decided to bring the present action. Procedure before the Court 34Following the written part of the procedure, in which the Republic of Poland lodged a defence and, subsequently, a rejoinder in response to the Commission’s reply, the parties presented oral argument at a hearing on 8 April 2019. The Advocate General delivered his Opinion on 20 June 2019, on which date the oral part of the procedure was consequently closed.35By document lodged at the Court Registry on 16 September 2019, the Republic of Poland requested the reopening of the oral part of the procedure. In support of that request, it states, in essence, that it disagrees with the Advocate General’s Opinion, which is said to be based, in particular, as is clear ‘from the content and context’ of certain points thereof and of similar points contained in his Opinion delivered on 11 April 2019 in Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:325), on an incorrect reading of the Court’s previous case-law, in particular of the judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), a reading which, moreover, was not debated between the parties.36In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the parties to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).37Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).38Nevertheless, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 28 and the case-law cited).39In the present case, the Court considers, however, after hearing the Advocate General, that it has, following the written part of the procedure and the hearing which has been held before the Court, all the information necessary in order to give judgment. Nor does the case have to be decided on the basis of an argument which has not been debated between the parties.40Accordingly, there is no need to order that the oral part of the procedure be reopened. The action Continued existence of the purpose of the proceedings 41The Republic of Poland contended in its rejoinder and at the hearing that the present action for failure to fulfil obligations is now devoid of purpose as a result of the entry into force, on 23 May 2018, of the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych, ustawy o Krajowej Radzie Sądownictwa oraz ustawy o Sądzie Najwyższym (Law amending the [Law on the ordinary courts], the Law on the National Council of the Judiciary and the [Law of 8 December 2017] of 12 April 2018 (Dz. U. 2018, item 848, ‘the Law of 12 April 2018’).42As regards the first complaint, alleging infringement of Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54, the Republic of Poland submits that Article 1(4) of the Law of 12 April 2018 amended Article 13(1) and (3) of the Amending Law of 12 July 2017 by repealing the distinctions between men and women relating to the retirement age of judges of the ordinary Polish courts and public prosecutors in Poland, which the Commission contests. The provisions relating to the retirement age of judges of the Sąd Najwyższy (Supreme Court) had, in the meantime, been replaced by those contained in the Law of 8 December 2017.43So far as concerns the second complaint, alleging infringement of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, the Republic of Poland submits that, as a result of the amendments made to Article 13(1) and Article 1(26)(b) and (c) of the Amending Law of 12 July 2017 by Article 1(4) of the Law of 12 April 2018, Article 69(1b) of the Law on the ordinary courts henceforth provides that it falls to the National Council of the Judiciary (Poland) and no longer to the Minister for Justice to authorise judges of the ordinary Polish courts to continue to carry out their duties beyond the age of 65 years. By virtue of those amendments, the National Council of the Judiciary is also called upon to adopt its decisions in that regard in the light of criteria that differ from those which applied hitherto as regards decisions of the Minister for Justice.44The Commission, for its part, stated at the hearing that it was maintaining its action.45Without there even being any need to examine whether or not the legislative amendments thereby relied upon by the Republic of Poland are capable of having brought the alleged failures to fulfil obligations to an end, in whole or in part, it is sufficient to note, as is clear from settled case-law, that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (judgment of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraph 41 and the case-law cited).46In the present case, it is common ground that, on the date on which the period laid down by the Commission in its reasoned opinion expired, the national provisions which the Commission is challenging by the present action were still in force. It follows that the Court should adjudicate on the action. The first complaint Arguments of the parties 47By its first complaint, the Commission contends that the distinctions made by Article 13(1) to (3) of the Amending Law of 12 July 2017 between women and men so far as concerns (i) the retirement age for judges of the ordinary Polish courts and public prosecutors in Poland and (ii) the age from which early retirement is possible in the case of judges of the Sąd Najwyższy (Supreme Court), namely, in both cases, 60 years for women and 65 years for men, constitute discrimination based on sex prohibited by Article 157 TFEU and by Articles 5(a) and 9(1)(f) of Directive 2006/54.48In the Commission’s submission, the pension schemes applicable to those three categories of judge or public prosecutor are covered by the concept of ‘pay’ within the meaning of Article 157 TFEU and fall within the scope of Directive 2006/54, since they satisfy the three criteria established by the Court’s case-law, namely that the retirement pension provided for by those schemes concerns only a particular category of workers, it is directly related to the period of service completed and its amount is calculated by reference to the final salary.49First, each of those schemes concerns a particular category of workers. Second, the amount of the retirement pension of the persons concerned is calculated on the basis of the pay received in respect of the last post occupied since it is set at 75% of that pay. Third, the pension is directly related to the period of service completed since it is apparent from the applicable national provisions that the number of years of service is a decisive factor when calculating both of the components of that pay, namely the basic salary and the seniority allowance.50Both Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54 preclude age conditions that differ according to sex from being set for the grant of such pensions.51Furthermore, the Commission takes the view that the distinctions at issue do not amount to positive action authorised under Article 157(4) TFEU and Article 3 of Directive 2006/54.52The Republic of Poland’s primary submission is that the pension schemes at issue are not covered by either Article 157 TFEU or Directive 2006/54, but by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), Article 7(1)(a) of which provides for the right of Member States to exclude from the directive’s scope the question of determination of pensionable age with grant of a pension. Indeed, those schemes do not satisfy one of the three criteria referred to in paragraph 48 of the present judgment, namely that the pension at issue must be directly related to the period of service completed.53The fact that the seniority allowance is limited to a maximum 20% of basic salary and that ceiling is reached after 20 years of service means, in fact, that the period of service is of only secondary importance when calculating the amount of the pension.54As for the basic salary, in view of the fact that, on taking up duties at a sąd rejonowy (district court) or at a prokuratura rejonowa (district public prosecutor’s office), a judge or public prosecutor receives remuneration set at the basic rate and that he is entitled to a basic salary at the next highest rate after 5 years in such a post, each judge or public prosecutor is entitled to the fifth increased rate, that is to say, the highest rate, after 20 years of service. The acquiring of higher rates as a result of rising to a post of a higher level depends on individual promotions of the judge or public prosecutor concerned and is not therefore directly related to the period of service completed.55Thus, under the applicable national provisions, all judges and public prosecutors, whether men or women, including those who have previously carried out other qualifying professional activities for service as a judge or public prosecutor, are entitled to the maximum seniority allowance and the maximum increased basic salary well before reaching retirement age. This means that the difference in retirement age for men and women introduced by the Amending Law of 12 July 2017 has no effect on the amount of the retirement pension received by those judges and public prosecutors, including in the event of early retirement, as a professional career of at least 25 years must be shown for early retirement.56Finally, the Republic of Poland states that, at the time when the provisions challenged by the Commission were still in force, transitional provisions existed, namely those laid down in Article 26(1) and (2) of the Law of 16 November 2016, pursuant to which all judges and public prosecutors, both female and male, covered by the Amending Law of 12 July 2017 and having reached the age of 60 years for women or 65 years for men no later than 30 April 2018 qualified for the retirement age as previously set, which was identical for men and women, by merely lodging a declaration within the prescribed statutory period and without any authorisation from any authority being required.57In the alternative, the Republic of Poland submits that the contested national provisions are ‘authorised positive action’ under Article 157(4) TFEU and Article 3 of Directive 2006/54. On account of their particular social role connected with motherhood and child raising, women have greater difficulties in maintaining continuous involvement in a professional career and are therefore promoted less often than men. The public interest dictates that the requirements laid down for such promotions must remain high and uniform, which makes it impossible to adopt specific relaxation measures in order to respond to the difficulties thus encountered by women in developing their career. The possibility of early retirement therefore constitutes indirect compensation for the difficulties that they thus suffer generally. Findings of the Court 58In the first place, it should be recalled that, under Article 157(1) TFEU, each Member State is to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. In accordance with the first subparagraph of Article 157(2) TFEU, pay is defined as being the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.59For the purpose of determining whether a retirement pension falls within the scope of Article 157 TFEU, the only criterion which may be regarded as decisive is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article (judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 45 and the case-law cited). Benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of that provision (judgment of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 42 and the case-law cited).60In accordance with settled case-law, a pension which concerns only a particular category of workers, which is directly related to the period of service completed and whose amount is calculated by reference to the final salary comes within the scope of Article 157 TFEU (judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 46 and the case-law cited).61In the present case, the judges of the ordinary Polish courts, judges of the Sąd Najwyższy (Supreme Court) and public prosecutors in Poland to whom the three pension schemes at issue apply must be considered to be three particular categories of workers for the purposes of the case-law recalled in the previous paragraph. It follows from settled case-law that civil servants who benefit under a pension scheme are distinguished from employees grouped within an undertaking or group of undertakings, in a particular sector of the economy, or in a trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies (judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 31 and the case-law cited, and of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 52 and the case-law cited).62Nor is it in dispute that in the present case the amount of the retirement pension paid to each of those three categories of judge or public prosecutor is calculated on the basis of the final salary of the person concerned. It is clear from Article 100(2) of the Law on the ordinary courts, Article 127(1) of the Law on the Public Prosecutor’s Office, which refers to Article 100 of the Law on the ordinary courts, and Article 50 of the 2002 Law on the Supreme Court that the amount of the pension paid to those judges and public prosecutors is set at 75% of the basic salary and seniority allowance received by them in respect of the last post occupied.63As regards the question whether such pensions are directly related to the period of service completed by the persons concerned, it must be stated, first, that it is apparent from Articles 91(1) and 91a(3) of the Law on the ordinary courts, Article 124(1) and (5) of the Law on the Public Prosecutor’s Office and Article 42(4) and (5) of the 2002 Law on the Supreme Court that the amount of the basic salary, which constitutes one of the two components of the final pay to which a percentage of 75% is applied for the purpose of calculating the amount of the pension payable to those various categories of judge or public prosecutor, changes, in particular, according to the length of service of the judge or public prosecutor concerned.64Second, as regards the other component of that final pay, namely the seniority allowance, it is clear from Article 91(7) of the Law on the ordinary courts, Article 124(11) of the Law on the Public Prosecutor’s Office and Article 43 of the 2002 Law on the Supreme Court that the number of years of service plays a part in the calculation of that allowance, as the allowance amounts to 5% of basic salary after 5 years of service and then increases by one percentage point per year of service for 15 years.65Furthermore, as the Commission has observed, since the seniority allowance is itself a percentage of the amount of that basic salary, which changes according to the length of service of the judge or public prosecutor concerned, it is determined also in this respect by reference to the period of service completed by the persons concerned.66Accordingly, the various circumstances relied upon by the Republic of Poland that are referred to in paragraphs 53 to 55 of the present judgment are entirely irrelevant for the purpose of determining whether the pensions paid under the pension schemes at issue are ‘pay’ within the meaning of Article 157 TFEU.67Such circumstances affect neither the fact that, as is clear from the findings made in paragraphs 63 to 65 of the present judgment, the period of service completed by the persons concerned plays, in the present case, a decisive role in the calculation of the amount of their pension nor the fact that the pensions paid under the pension schemes at issue essentially relate to the employment of the persons concerned, a factor which, under the settled case-law recalled in paragraph 59 of the present judgment, constitutes the decisive criterion for the purposes of classification as ‘pay’ within the meaning of Article 157 TFEU (see, to that effect, judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraphs 5 and 46; of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraphs 33 to 35; and of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480, paragraphs 45 and 55).68In this connection, it should be added that, as the Commission has submitted, that link between the pension and the employment of the persons concerned is further strengthened by the fact that it is apparent from Article 100(3) of the Law on the ordinary courts, Article 127(1) of the Law on the Public Prosecutor’s Office, which refers to Article 100(3) of the Law on the ordinary courts, and Article 50 of the 2002 Law on the Supreme Court that the pensions concerned are subject to increases which themselves depend on changes in the pay of serving judges and public prosecutors.69It follows from all the foregoing that pensions paid under schemes such as those established by the Law on the ordinary courts, the Law on the Public Prosecutor’s Office and the 2002 Law on the Supreme Court are ‘pay’ within the meaning of Article 157 TFEU.70So far as concerns Directive 2006/54, in particular Articles 5(a) and 9(1)(f), which in the Commission’s submission have also been infringed, both of those provisions are in Chapter 2 of Title II of the directive, a chapter which, as is apparent from its heading, contains provisions devoted to equal treatment in occupational social security schemes.71Article 7 of Directive 2006/54, which defines the material scope of Chapter 2, states in paragraph 2 that that chapter applies inter alia to pension schemes for a particular category of worker such as that of public servants if the benefits payable under the scheme are paid by reason of the employment relationship with the public employer.72In that regard, it is apparent from recital 14 of Directive 2006/54 that the EU legislature sought to take formal notice of the fact that, in accordance with the Court’s case-law recalled in paragraph 60 of the present judgment, a pension scheme for public servants falls within the scope of the principle of equal pay set out in Article 157 TFEU if the benefits payable under the scheme are paid to the worker by reason of his/her employment relationship with the public employer, that condition being satisfied if the pension scheme concerns a particular category of workers and its benefits are directly related to the period of service and calculated by reference to the public servant’s final salary.73It is clear from paragraphs 61 to 69 of the present judgment that the three pension schemes that the present action concerns satisfy those conditions, with the result that they fall within the material scope of Chapter 2 of Title II of Directive 2006/54 and, therefore, within that of Articles 5 and 9 of the directive.74In the second place, it should be noted that, as is clear from settled case-law, Article 157 TFEU prohibits any discrimination with regard to pay as between men and women, whatever the mechanism by which that inequality arises. According to that case-law, it is contrary to Article 157 TFEU to impose an age condition which differs according to sex for the grant of a pension that constitutes pay within the meaning of that provision (see, to that effect, judgments of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 32; of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480, paragraph 53; and of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 55).75Article 5(a) of Directive 2006/54 provides that there is to be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards the scope of such schemes and the conditions of access to them.76Article 9(1) of Directive 2006/54 identifies a number of provisions which, when they are based on sex, either directly or indirectly, are to be included among the provisions contrary to the principle of equal treatment. That is so, as is clear from Article 9(1)(f), inter alia in the case of provisions based on sex for fixing different retirement ages. The EU legislature thus decided that the rules to which Article 9(1) refers in the field of occupational social security schemes are contrary to the principle of equal treatment laid down by Directive 2006/54 (judgment of 3 September 2014, X, C‑318/13, EU:C:2014:2133, paragraph 48).77In the present case, it is not in dispute that, inasmuch as Article 13(1) to (3) of the Amending Law of 12 July 2017 sets the retirement age of judges of the ordinary courts and of public prosecutors, respectively, at 60 years for women and 65 years for men, and permits any early retirement of judges of the Sąd Najwyższy (Supreme Court) from the age of 65 years for men and 60 years for women, it fixes different retirement ages on the basis of sex.78In so doing, those provisions introduce directly discriminatory conditions based on sex into the pension schemes in question, in particular as regards the time when the persons concerned may have actual access to the advantages provided for by those schemes, and they therefore fail to comply both with Article 157 TFEU and with Article 5(1) of Directive 2006/54, in particular Article 5(1)(a), read in conjunction with Article 9(1)(f) of the directive.79In the third place, as regards the Republic of Poland’s argument that the setting, for retirement, of such age conditions that differ according to sex is justified by the objective of eliminating discrimination against women, it is clear from settled case-law that that argument cannot succeed.80Even though Article 157(4) TFEU authorises the Member States to maintain or adopt measures providing for specific advantages in order to prevent or compensate for disadvantages in professional careers, with a view to ensuring full equality between men and women in working life, it cannot be inferred that that provision permits the setting of such age conditions that differ according to sex. The national measures covered by that provision must, in any event, contribute to helping women to conduct their professional life on an equal footing with men (see, to that effect, judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 64, and of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 57).81The setting, for retirement, of an age condition that differs according to sex does not offset the disadvantages to which the careers of female public servants are exposed by helping those women in their professional life and by providing a remedy for the problems which they may encounter in the course of their professional career (judgment of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 58).82For the reasons set out in the previous two paragraphs, nor can such a measure be authorised on the basis of Article 3 of Directive 2006/54. As is apparent from the very wording of that provision and recital 22 of the directive, the measures to which that provision refers are solely those that Article 157(4) TFEU itself authorises.83In the fourth place, as regards the transitional measures relied on by the Republic of Poland in its rejoinder and at the hearing, it is sufficient to note that those measures in any event, as the Republic of Poland itself acknowledges, were capable of benefiting only female judges and public prosecutors who reached the age of 60 years before 30 April 2018. It thus follows from the foregoing that, on the relevant date for determining whether the present action is well founded, namely, as pointed out in paragraphs 45 and 46 of the present judgment, the date on which the period laid down in the reasoned opinion expired, the discrimination based on sex that the Commission criticises remained intact.84In the light of the foregoing considerations, the Commission’s first complaint, alleging infringement of Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54, must be upheld. The second complaint Scope of the complaint 85At the hearing, the Commission explained that, by its second complaint, it seeks, in essence, a declaration that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, has been infringed. According to the Commission, the concept of ‘effective legal protection’ in the second subparagraph of Article 19(1) TEU must in fact be interpreted while having regard to the content of Article 47 of the Charter and, in particular, to the guarantees inherent in the right, laid down in the latter provision, to an effective remedy, so that the first of those provisions entails that preservation of the independence of bodies such as the ordinary Polish courts, which are entrusted, inter alia, with the task of interpreting and applying EU law, must be guaranteed.86For the purpose of ruling on the present complaint, it is therefore necessary to examine whether the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.87Relying, in particular, on the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), the Commission contends that, in order for the Republic of Poland to comply with the obligation imposed on it by the second subparagraph of Article 19(1) TEU to establish a system of legal remedies ensuring effective judicial review in the fields covered by EU law, it is required, inter alia, to ensure that the national bodies which, like the ordinary Polish courts, may rule on questions relating to the application or interpretation of EU law meet the requirement of judicial independence, that requirement forming part of the essence of the fundamental right to a fair trial as resulting in particular from the second paragraph of Article 47 of the Charter.88According to the Commission, in lowering, by Article 13(1) of the Amending Law of 12 July 2017, the retirement age applicable to judges of the ordinary Polish courts to 65 years for men and 60 years for women while granting the Minister for Justice the right to decide whether to authorise extension of the period of active service as a judge to the age of 70 years, pursuant to Article 1(26)(b) and (c) of that law, the Republic of Poland has infringed the obligation referred to in the previous paragraph.89In that regard, the Commission submits that the criteria on the basis of which the Minister for Justice is called upon to adopt his decision are too vague and that the provisions at issue, furthermore, oblige him neither to grant authorisation, on the basis of those criteria, for the judge concerned to continue to carry out his duties nor to state reasons for his decision in the light of those criteria — a decision which, moreover, is not amenable to judicial review. Nor do those provisions specify the period within which or for how long the Minister for Justice’s decision must be taken or whether, in certain circumstances, it may or must be renewed.90According to the Commission, in view of the discretion thus vested in the Minister for Justice, the prospect of having to apply to him for authorisation to continue to carry out duties as a judge and, once such an application has been made, the wait for the minister’s decision for an unspecified period are liable to place the judge concerned under pressure of such a kind as to lead him to submit to any wishes of the executive so far as concerns the cases before him, including where he finds it necessary to interpret and apply provisions of EU law. The provisions at issue thus undermine the personal and operational independence of serving judges.91In the Commission’s submission, those provisions also undermine the irremovability of the judges concerned. The Commission emphasises, in this regard, that its complaint concerns not the measure lowering the judges’ retirement age in itself, but the fact that that reduction was accompanied here by the grant of such discretion to the Minister for Justice. According to the Commission, the judges must be protected against any decision arbitrarily denying them the right to continue to carry out their judicial duties, not only in the case of formal loss of their status resulting, for example, from dismissal, but also when the issue is whether to extend the carrying out of such duties beyond their retirement age, where they themselves wish to continue to act as a judge and their state of health so permits.92In that context, the Commission maintains that the argument put forward by the Republic of Poland that the provisions at issue had the aim of bringing the retirement age of judges of the ordinary Polish courts into line with the general retirement age applicable to workers is unfounded, as an infringement of the principle of judicial independence brooks no justification. In any event, the general pension scheme, unlike the contested scheme applicable to judges of the ordinary Polish courts, entails not the automatic retirement of workers, but only the right, and not the obligation, for them to stop working. Furthermore, it is apparent from the white paper of 8 March 2018 published by the Polish Government, which was devoted to reform of the Polish courts, that the aim of lowering the retirement age of judges was in particular to remove certain categories of judges.93The Republic of Poland submits, first, that national rules such as those contested by the Commission in its action relate to the organisation and proper operation of the national system of justice, which do not fall within EU law or the competence of the European Union, but within the exclusive competence and the procedural autonomy of the Member States. Such national rules cannot therefore be reviewed in the light of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter without extending excessively the scope of those provisions of EU law, which are intended to apply only in situations governed by EU law.94In the present instance, there is, in particular, no situation in which EU law is being implemented, within the meaning of Article 51(1) of the Charter. It follows, moreover, from Article 6(1) TEU and Article 51(2) of the Charter that the Charter does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union. The second subparagraph of Article 19(1) TEU lays down only a general obligation to adopt the necessary measures to ensure effective legal protection in the fields covered by EU law, and does not confer on the European Union competence so far as concerns adoption of the institutional rules relating to the judiciary, in particular those relating to the retirement age of judges, which do not display any real links with EU law.95Second, the Republic of Poland disputes that the irremovability of judges has been undermined in any way as irremovability concerns only serving judges and the national legislation at issue relates to judges who have already reached the statutory retirement age. Once retired, judges retain their status as a judge and acquire the right to a retirement pension which is markedly higher than the retirement benefits provided for by the general social security scheme. In the present instance, bringing the retirement age of judges into line with the retirement age under the general pension scheme applicable to workers cannot, moreover, be regarded as arbitrary or unjustified.96Third, it follows from the statutory criteria on the basis of which the Minister for Justice has to adopt his decision on any extension of the period for which a judge carries out his duties beyond the normal retirement age that a refusal to extend is acceptable only where refusal is justified by a small workload of the judge concerned in the court where he holds a post and the need to reassign that post to another court with a higher workload. Such a measure is legitimate in the light, in particular, of the fact that it is impossible, save in exceptional circumstances, to transfer judges to another court without their consent.97In any event, the fear that serving judges may, over a period of 6 to 12 months, be tempted to give rulings favourable to the executive, on account of uncertainty as to the decision which will be adopted regarding the possible extension of the period for which they carry out their duties, is unfounded. It is mistaken to believe that a judge may, after having acted as a judge for so many years, feel pressure linked to the fact that his duties may not be extended for a further few years. Nor does the guarantee of judicial independence necessarily entail a complete absence of relations between the executive and the judiciary. Thus, the renewal of the term of office of a judge of the Court of Justice of the European Union also itself depends upon the assessment of the government of the Member State of the judge concerned.– Applicability and scope of the second subparagraph of Article 19(1) TEU 98First of all, it should be pointed out that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 50 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 47).99In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure for individuals compliance with their right to effective judicial protection in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 48).100The principle of the effective judicial protection of individuals’ rights under EU law, thus referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 35 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 49).101As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 50).102Furthermore, although, as the Republic of Poland points out, the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited).103In that regard, every Member State must, under the second subparagraph of Article 19(1) TEU, in particular ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 55 and the case-law cited).104In the present case, it is not in dispute that the ordinary Polish courts may, in that capacity, be called upon to rule on questions relating to the application or interpretation of EU law and that, as ‘courts or tribunals’ within the meaning of EU law, they come within the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, so that those courts must meet the requirements of effective judicial protection.105To ensure that such ordinary courts are in a position to offer such protection, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (see, to that effect, judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 53 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 57).106That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 48 and 63, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 58).107In the light of the foregoing, the national rules which are the subject of the second complaint set out by the Commission in its action may be reviewed in the light of the second subparagraph of Article 19(1) TEU and it should accordingly be examined whether, as the Commission contends, the Republic of Poland has infringed that provision.– The complaint 108The requirement that courts be independent, a requirement which the Member States must — under the second subparagraph of Article 19(1) TEU — ensure is observed in respect of national courts which, like the ordinary Polish courts, are called upon to rule on issues relating to the interpretation and application of EU law, has two aspects to it (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 71).109The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 44 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 72).110The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 73).111Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 74).112As is also clear from settled case-law, the necessary freedom of judges from all external intervention or pressure requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 75).113The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 76).114In that latter respect, it is apparent, more specifically, from the Court’s case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 67, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 77).115Having regard to the cardinal importance of the principle of irremovability, an exception thereto is thus acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the courts concerned to external factors and their neutrality with respect to the interests before them (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 79).116In the present case, as explained both at the hearing and in its written pleadings, by its second complaint the Commission does not seek to criticise the measure lowering the retirement age of judges of the ordinary Polish courts in itself. This complaint is essentially directed at the mechanism with which that measure was coupled, under which the Minister for Justice has the right to authorise judges of those courts to continue actively to carry out judicial duties beyond the retirement age, as lowered. In the Commission’s submission, in the light of its characteristics that mechanism undermines the independence of the judges concerned in that it does not enable it to be guaranteed that they will carry out their duties wholly autonomously and be protected against external intervention or pressure. Furthermore, the combination of the measure and the mechanism undermines their irremovability.117In that regard, it should be noted, as a preliminary point, that the mechanism thus criticised by the Commission deals not with the process for the appointment of candidates to carry out judicial duties, but with the possibility, for serving judges who thus enjoy the guarantees inherent in carrying out those duties, to continue to carry them out beyond the normal retirement age, and that that mechanism accordingly concerns the conditions under which their careers progress and end (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 109).118Furthermore, although it is for the Member States alone to decide whether or not they will authorise such an extension to the period of judicial activity beyond the normal retirement age, the fact remains that, where those Member States choose to adopt such a mechanism, they are required to ensure that the conditions and the procedure to which such an extension is subject are not such as to undermine the principle of judicial independence (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 110).119As regards the need, noted in paragraphs 109 to 111 of the present judgment, to ensure that courts can exercise their functions wholly autonomously, objectively and without any interest in the outcome of the proceedings, while being protected against external intervention or pressure liable to impair the independent judgement of their members and to influence their decisions, it is true that the fact that an organ, such as the Minister for Justice, is entrusted with the power to decide whether or not to grant any extension to the period of judicial activity beyond the normal retirement age is not sufficient in itself to conclude that the principle of judicial independence has been undermined. However, it is necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 111).120To that end, it is necessary, in particular, that those conditions and procedural rules are designed in such a way that those judges are protected from potential temptations to give in to external intervention or pressure that is liable to jeopardise their independence. Such procedural rules must thus, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 112 and the case-law cited).121In the present case, the conditions and the detailed procedural rules which the contested national provisions impose in relation to the possibility that judges of the ordinary Polish courts continue to carry out their duties beyond the new retirement age do not satisfy those requirements.122First of all, Article 69(1b) of the Law on the ordinary courts provides that the Minister for Justice may decide whether or not to authorise such continuation on the basis of certain criteria. However, those criteria are too vague and unverifiable and, moreover, as the Republic of Poland conceded at the hearing, the minister’s decision is not required to state reasons, inter alia by reference to those criteria. Nor can such a decision be challenged in court proceedings (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 114).123Next, under Article 69(1) of the Law on the ordinary courts, the request for extension of the period for which judicial duties are carried out must be made by the judges concerned no earlier than 12 months and no later than 6 months before reaching the normal retirement age. Furthermore, as maintained by the Commission in its written pleadings and at the hearing without its being disputed by the Republic of Poland, that provision does not lay down a period within which the Minister for Justice must adopt his decision in that regard. That provision, in conjunction with Article 69(1b) of the Law on the ordinary courts which provides that, where a judge reaches the normal retirement age before the procedure for extending the period of judicial duties has ended, the person concerned is to remain in post until that procedure has come to an end, is such as to prolong the period of uncertainty for the judge concerned. It follows from the foregoing that the length of the period for which the judges are thus liable to continue to wait for the decision of the Minister for Justice once the extension has been requested, likewise, ultimately falls within the minister’s discretion.124Having regard to the foregoing, it must be found that the power held in the present instance by the Minister for Justice for the purpose of deciding whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to 70 years in the case of women and the age of 65 to 70 years in the case of men, is such as to give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests that may be the subject of argument before them (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 118).125Furthermore, that power fails to comply with the principle of irremovability, which is inherent in judicial independence (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 96).126In that regard, it is to be noted that that power was conferred on the Minister for Justice in the more general context of a reform that resulted in the lowering of the normal retirement age of, amongst others, judges of the ordinary Polish courts.127First, having regard, in particular, to certain preparatory documents relating to the reform at issue, the combination of the two measures referred to in the previous paragraph is such as to create, in the minds of individuals, reasonable doubts regarding the fact that the new system might actually have been intended to enable the Minister for Justice, acting in his discretion, to remove, once the newly set normal retirement age was reached, certain groups of judges serving in the ordinary Polish courts while retaining others of those judges in post (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 85).128Second, it should be pointed out that the period for which judges of the ordinary Polish courts carry out judicial duties that thus falls within the pure discretion of the Minister for Justice is considerable since it amounts to the final 10 years of performance of such duties in a female judge’s career and the final 5 years of their performance in a male judge’s career.129Third, it is to be recalled that, under Article 69(1b) of the Law on the ordinary courts, where a judge reaches the normal retirement age before the procedure for extending the period of judicial duties has ended, he or she is to remain in post until that procedure has come to an end. In such a situation, any decision of the Minister for Justice in the negative — which moreover, as already noted in paragraph 123 of the present judgment, is not subject to any time limit — is thus adopted after the judge concerned has been retained in post, as the case may be for a relatively long period of uncertainty, beyond the normal retirement age.130In the light of the considerations set out in paragraphs 126 to 129 of the present judgment, it must be found that, as the requirements noted in paragraphs 113 to 115 of the present judgment are not complied with, the combination of the measure lowering the normal retirement age to 60 years for women and 65 years for men and of the discretion vested in the present instance in the Minister for Justice for the purpose of granting or refusing authorisation for judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to 70 years in the case of women and 65 to 70 years in the case of men, fails to comply with the principle of irremovability.131The finding made in the previous paragraph is affected neither by the fact, relied on by the Republic of Poland, that the judges who are not authorised to continue to carry out their duties retain the title of judge or that they continue to enjoy immunity and high emoluments once they have been retired nor by its formal argument that the judges concerned can no longer benefit from the guarantee that they cannot be removed, on the ground that they have already reached the new statutory retirement age. In the latter regard, it has, moreover, already been pointed out, in paragraph 129 of the present judgment, that, as is apparent from Article 69(1b) of the Law on the ordinary courts, the Minister for Justice’s decision on whether to extend the period for which the persons concerned carry out their judicial duties may be adopted at a time when they have been retained in post beyond that new normal retirement age.132Finally, the Republic of Poland’s argument concerning a similarity between the national provisions thus challenged and the procedure applicable at the time of any renewal of the term of office of a judge of the Court of Justice of the European Union cannot succeed.133Unlike national judges who are appointed until they reach the statutory retirement age, the appointment of judges within the Court of Justice occurs, as provided for in Article 253 TFEU, for a six-year fixed term. Moreover, under that article, a new appointment to such a post held by a judge whose term of office is coming to an end requires, as was the case in respect of the initial appointment of that judge, the common accord of the Governments of the Member States, after consultation of the panel provided for in Article 255 TFEU (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 121).134The conditions thus set by the Treaties cannot modify the scope of the obligations imposed on the Member States pursuant to the second subparagraph of Article 19(1) TEU (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 122).135In the light of all the foregoing, the Commission’s second complaint, alleging infringement of the second subparagraph of Article 19(1) TEU, must be upheld.136The Commission’s action must therefore be upheld in its entirety, with the result that it should be declared:first, that, in establishing, by Article 13(1) to (3) of the Amending Law of 12 July 2017, a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54, andsecond, that, in granting, pursuant to Article 1(26)(b) and (c) of the Amending Law of 12 July 2017, the Minister for Justice the right to decide whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties beyond the new retirement age of those judges, as lowered by Article 13(1) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. Costs 137Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Republic of Poland has been unsuccessful, the latter must be ordered to pay the costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that, in establishing, by Article 13(1) to (3) of the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017, a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court, Poland) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation; 2. Declares that, in granting, pursuant to Article 1(26)(b) and (c) of the Law amending the Law on the system of ordinary courts and certain other laws of 12 July 2017, the Minister for Justice (Poland) the right to decide whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties beyond the new retirement age of those judges, as lowered by Article 13(1) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; 3. Orders the Republic of Poland to pay the costs. [Signatures]( *1 ) Language of the case: Polish. | 06224-3a3ae31-48a4 | EN |
Advocate General Sharpston: the Court should rule that, by refusing to comply with the provisional and time-limited mechanism for the mandatory relocation of applicants for international protection, Poland, Hungary and the Czech Republic have failed to fulfil their obligations under EU law | 2 April 2020 ( *1 )Table of contentsLegal contextInternational lawEuropean Union lawDirective 2011/95/EUDecisions 2015/1523 and 2015/1601Background and pre-litigation procedureProcedure before the CourtThe actionsAdmissibilityThe objections of inadmissibility in Cases C‑715/17, C‑718/17 and C‑719/17, alleging that the actions are devoid of purpose and inconsistent with the objective of the procedure under Article 258 TFEU– Arguments of the parties– Findings of the CourtThe objections of inadmissibility in Cases C‑715/17 and C‑718/17, alleging an infringement of the principle of equal treatmentThe objection of inadmissibility in Case C‑718/17, alleging infringement of the rights of the defence during the pre-litigation procedureThe objection of inadmissibility in Case C‑719/17, alleging that the application lacked precision and was inconsistentSubstanceWhether the infringements alleged in fact took placeThe pleas in defence derived by the Republic of Poland and Hungary from Article 72 TFEU, read in conjunction with Article 4(2) TEUArguments of the partiesFindings of the CourtThe plea in defence derived by the Czech Republic from the malfunctioning and alleged ineffectiveness of the relocation mechanism as provided for under Decisions 2015/1523 and 2015/1601 as applied in practiceCosts(Failure of a Member State to fulfil obligations — Decisions (EU) 2015/1523 and (EU) 2015/1601 — Article 5(2) and 5(4) to 5(11) of each of those decisions — Provisional measures in the area of international protection for the benefit of Italy and of Greece — Emergency situation characterised by a sudden influx of third-country nationals into certain Member States — Relocation of those nationals to other Member States — Relocation procedure — Obligation on the Member States to indicate at regular intervals, and at least every three months, the number of applicants for international protection who can be relocated swiftly to their territory — Consequent obligations leading to actual relocation — Interests of the Member States linked to national security and public order — Possibility for a Member State to rely on Article 72 TFEU in order not to apply EU legal acts of a binding nature)In Joined Cases C‑715/17, C‑718/17 and C‑719/17,ACTIONS for failure to fulfil obligations under Article 258 TFEU, brought on 21 and 22 December 2017, European Commission, represented by Z. Malůšková, A. Stobiecka-Kuik, G. Wils and A. Tokár, acting as Agents,applicant,v Republic of Poland, represented by E. Borawska-Kędzierska and B. Majczyna, acting as Agents,defendant,supported by: Czech Republic, represented by M. Smolek, J. Vláčil, J. Pavliš and A. Brabcová, acting as Agents, Hungary, represented by M.Z. Fehér, acting as Agent,interveners (Case C‑715/17), Hungary, represented by M.Z. Fehér and G. Koós, acting as Agents,interveners (Case C‑718/17),andinterveners (Case C‑719/17),THE COURT (Third Chamber),composed of A. Prechal (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Third Chamber, L.S. Rossi, J. Malenovský and F. Biltgen, Judges,Advocate General: E. Sharpston,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 15 May 2019,after hearing the Opinion of the Advocate General at the sitting on 31 October 2019,gives the following Judgment 1By its application in Case C‑715/17, the European Commission seeks a declaration from the Court that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who could be relocated swiftly to its territory, the Republic of Poland has, since 16 March 2016, failed to fulfil its obligations under Article 5(2) of Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece (OJ 2015 L 239, p. 146) and Article 5(2) of Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ 2015 L 248, p. 80), and, consequently, the subsequent relocation obligations incumbent on it under Article 5(4) to (11) of each of those two decisions.2By its application in Case C‑718/17, the Commission seeks a declaration from the Court that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who could be relocated swiftly to its territory, Hungary has failed to fulfil its obligations under Article 5(2) of Decision 2015/1601 and, consequently, the subsequent relocation obligations incumbent on it under Article 5(4) to (11) of that decision.3By its application in Case C‑719/17, the Commission seeks a declaration from the Court that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who could be relocated swiftly to its territory, the Czech Republic has failed to fulfil its obligations under Article 5(2) of Decision 2015/1523 and Article 5(2) of Decision 2015/1601 and, consequently, the subsequent relocation obligations incumbent on it under Article 5(4) to (11) of each of those two decisions. Legal context International law 4The Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)), entered into force on 22 April 1954. It was supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which for its part entered into force on 4 October 1967 (‘the Geneva Convention’).5Article 1 of the Geneva Convention, following the definition, inter alia, in section A, of the term ‘refugee’ for the purposes of that convention, states in section F:‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.’ European Union law Directive 2011/95/EU 6Chapter III of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), entitled ‘Qualification for being a refugee’, includes Article 12 of that directive, entitled ‘Exclusion’. Paragraphs 2 and 3 of that article provide as follows:‘2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations[, signed in San Francisco on 26 June 1945].3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.’7Chapter V of Directive 2011/95, entitled ‘Qualification for subsidiary protection’, includes Article 17 of that directive, entitled ‘Exclusion’, pursuant to which:‘1. A third-country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:he or she has committed a serious crime;he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations;(d)he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.2. Paragraph 1 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.3. Member States may exclude a third-country national or a stateless person from being eligible for subsidiary protection if he or she, prior to his or her admission to the Member State concerned, has committed one or more crimes outside the scope of paragraph 1 which would be punishable by imprisonment, had they been committed in the Member State concerned, and if he or she left his or her country of origin solely in order to avoid sanctions resulting from those crimes.’ Decisions 2015/1523 and 2015/1601 8Recitals 1, 2, 7, 11, 12, 23, 25, 26, 31 and 32 of Decision 2015/1601 state as follows:‘(1)According to Article 78(3) [TFEU], in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member State(s) concerned.(2)According to Article 80 TFEU, the policies of the Union in the area of border checks, asylum and immigration and their implementation are to be governed by the principle of solidarity and fair sharing of responsibility between the Member States, and Union acts adopted in this area are to contain appropriate measures to give effect to this principle.…(7)At its meeting of 25 and 26 June 2015, the European Council decided, inter alia, that three key dimensions should be advanced in parallel: relocation/resettlement, return/readmission/reintegration and cooperation with countries of origin and transit. The European Council agreed in particular, in the light of the current emergency situation and the commitment to reinforce solidarity and responsibility, on the temporary and exceptional relocation over 2 years, from Italy and from Greece to other Member States of 40000 persons in clear need of international protection, in which all Member States would participate.(11)On 20 July 2015, reflecting the specific situations of Member States, a Resolution of the representatives of the Governments of the Member States meeting within the [European] Council on relocating from Greece and Italy 40000 persons in clear need of international protection was adopted by consensus. Over a period of 2 years, 24000 persons will be relocated from Italy and 16000 persons will be relocated from Greece. On 14 September 2015, the Council [of the European Union] adopted Decision … 2015/1523, which provided for a temporary and exceptional relocation mechanism from Italy and Greece to other Member States of persons in clear need of international protection.(12)During recent months, the migratory pressure at the southern external land and sea borders has again sharply increased, and the shift of migration flows has continued from the central to the eastern Mediterranean and towards the Western Balkans route, as a result of the increasing number of migrants arriving in and from Greece. In view of the situation, further provisional measures to relieve the asylum pressure from Italy and Greece should be warranted.(23)The measures to relocate from Italy and from Greece, provided for in this Decision, entail a temporary derogation from the rule set out in Article 13(1) of [Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31)] according to which Italy and Greece would otherwise have been responsible for the examination of an application for international protection based on the criteria set out in Chapter III of that Regulation, as well as a temporary derogation from the procedural steps, including the time limits, laid down in Articles 21, 22 and 29 of that Regulation. The other provisions of Regulation … No 604/2013 … remain applicable …(25)A choice had to be made in respect of the criteria to be applied when deciding which and how many applicants are to be relocated from Italy and from Greece, without prejudice to decisions at national level on asylum applications. A clear and workable system is envisaged based on a threshold of the average rate at Union level of decisions granting international protection in the procedures at first instance, as defined by Eurostat, out of the total number at Union level of decisions on applications for international protection taken at first instance, based on the latest available statistics. On the one hand, this threshold would have to ensure, to the maximum extent possible, that all applicants in clear need of international protection would be in a position to fully and swiftly enjoy their protection rights in the Member State of relocation. On the other hand, it would have to prevent, to the maximum extent possible, applicants who are likely to receive a negative decision on their application from being relocated to another Member State, and therefore from prolonging unduly their stay in the Union. A threshold of 75%, based on the latest available updated Eurostat quarterly data for decisions at first instance, should be used in this Decision.(26)The provisional measures are intended to relieve the significant asylum pressure on Italy and on Greece, in particular by relocating a significant number of applicants in clear need of international protection who will have arrived in the territory of Italy or Greece following the date on which this Decision becomes applicable. Based on the overall number of third-country nationals who have entered Italy and Greece irregularly in 2015, and the number of those who are in clear need of international protection, a total of 120000 applicants in clear need of international protection should be relocated from Italy and Greece. …(31)It is necessary to ensure that a swift relocation procedure is put in place and to accompany the implementation of the provisional measures by close administrative cooperation between Member States and operational support provided by [the European Asylum Support Office (EASO)].(32)National security and public order should be taken into consideration throughout the relocation procedure, until the transfer of the applicant is implemented. In full respect of the fundamental rights of the applicant, including the relevant rules on data protection, where a Member State has reasonable grounds for regarding an applicant as a danger to its national security or public order, it should inform the other Member States thereof.’9Recitals 1, 2, 7, 23, 25, 26, 31 and 32 of Decision 2015/1601 were drafted in terms essentially identical to those of recitals 1, 2, 6, 18, 20, 21, 25 and 26, respectively, of Decision 2015/1523.10Article 1 of Decision 2015/1601, entitled ‘Subject matter’, provided as follows, in paragraph 1 thereof, in terms which were essentially identical to those of Article 1 of Decision 2015/1523:‘This Decision establishes provisional measures in the area of international protection for the benefit of Italy and of Greece, in view of supporting them in better coping with an emergency situation characterised by a sudden inflow of nationals of third countries in those Member States.’11Article 2 of each of those decisions, entitled ‘Definitions’, provided as follows:‘For the purposes of this Decision, the following definitions apply:(e)“relocation” means the transfer of an applicant from the territory of the Member State which the criteria laid down in Chapter III of Regulation … No 604/2013 indicate as responsible for examining his or her application for international protection to the territory of the Member State of relocation;(f)“Member State of relocation” means the Member State which becomes responsible for examining the application for international protection pursuant to Regulation … No 604/2013 of an applicant following his or her relocation in the territory of that Member State.’12Article 3 of Decision 2015/1601, entitled ‘Scope’, provided, in identical terms to those of Article 3 of Decision 2015/1523, as follows:‘1. Relocation pursuant to this Decision shall take place only in respect of an applicant who has lodged his or her application for international protection in Italy or in Greece and for whom those States would have otherwise been responsible pursuant to the criteria for determining the Member State responsible set out in Chapter III of Regulation … No 604/2013.2. Relocation pursuant to this Decision shall be applied only in respect of an applicant belonging to a nationality for which the proportion of decisions granting international protection among decisions taken at first instance on applications for international protection as referred to in Chapter III of Directive 2013/32/EU [of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60)] is, according to the latest available updated quarterly Union-wide average Eurostat data, 75% or higher. …’13Article 4 of Decision 2015/1523 provided for the relocation, from Italy and Greece to the territory of the other Member States to which that decision was applicable, which did not include Hungary, of 40000 persons in clear need of international protection, 24000 of which were to be from Italy and 16000 of which were to be from Greece.14Article 4 of Decision 2015/1601 provided as follows:‘1. 120000 applicants shall be relocated to the other Member States as follows:15600 applicants shall be relocated from Italy to the territory of the other Member States in accordance with the table set out in Annex I;50400 applicants shall be relocated from Greece to the territory of the other Member States in accordance with the table set out in Annex II;54000 applicants shall be relocated to the territory of the other Member States, proportionally to the figures laid down in Annexes I and II, either in accordance with paragraph 2 of this Article or through an amendment of this Decision, as referred to in Article 1(2) and in paragraph 3 of this Article.2. As of 26 September 2016, 54000 applicants, referred to in point (c) of paragraph 1, shall be relocated from Italy and Greece, in proportion resulting from points (a) and (b) of paragraph 1, to the territory of other Member States and proportionally to the figures laid down in Annexes I and II. The Commission shall submit a proposal to the Council on the figures to be allocated accordingly per Member State.…’15Article 1 of Council Decision (EU) 2016/1754 of 29 September 2016 (OJ 2016 L 268, p. 82) added the following paragraph to Article 4 of Decision 2015/1601:‘3a. In relation to the relocation of applicants referred to in point (c) of paragraph 1, Member States may choose to meet their obligation by admitting to their territory Syrian nationals present in Turkey under national or multilateral legal admission schemes for persons in clear need of international protection, other than the resettlement scheme which was the subject of the Conclusions of the Representatives of the Governments of the Member States meeting within the [European] Council of 20 July 2015. The number of persons so admitted by a Member State shall lead to a corresponding reduction of the obligation of the respective Member State.16Annexes I and II to Decision 2015/1601 contained tables indicating, in respect of the Member States to which that decision was applicable, other than the Hellenic Republic and the Italian Republic, including the Republic of Poland, Hungary and the Czech Republic, the binding allocations of applicants for international protection from Italy or Greece respectively who had to be relocated in each of those Member States.17Article 5 of Decision 2015/1601, entitled ‘Relocation procedure’, provided as follows:‘…2. Member States shall, at regular intervals, and at least every 3 months, indicate the number of applicants who can be relocated swiftly to their territory and any other relevant information.3. Based on this information, Italy and Greece shall, with the assistance of EASO and, where applicable, of Member States’ liaison officers referred to in paragraph 8, identify the individual applicants who could be relocated to the other Member States and, as soon as possible, submit all relevant information to the contact points of those Member States. Priority shall be given for that purpose to vulnerable applicants within the meaning of Articles 21 and 22 of Directive 2013/33/EU [of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96)].4. Following approval of the Member State of relocation, Italy and Greece shall, as soon as possible, take a decision to relocate each of the identified applicants to a specific Member State of relocation, in consultation with EASO, and shall notify the applicant in accordance with Article 6(4). The Member State of relocation may decide not to approve the relocation of an applicant only if there are reasonable grounds as referred to in paragraph 7 of this Article.5. Applicants whose fingerprints are to be taken in accordance with the obligations laid down in Article 9 of Regulation (EU) No 603/2013 [of the European Parliament and of the Council of 26 June 2013 on the establishment of “Eurodac” for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2013 L 180, p. 1),] may be proposed for relocation only if their fingerprints have been taken and transmitted to the Central System of Eurodac, pursuant to that Regulation.6. The transfer of the applicant to the territory of the Member State of relocation shall take place as soon as possible following the date of the notification to the person concerned of the transfer decision referred to in Article 6(4) of this Decision. Italy and Greece shall transmit to the Member State of relocation the date and time of the transfer as well as any other relevant information.7. Member States retain the right to refuse to relocate an applicant only where there are reasonable grounds for regarding him or her as a danger to their national security or public order or where there are serious reasons for applying the exclusion provisions set out in Articles 12 and 17 of Directive 2011/95/EU.8. For the implementation of all aspects of the relocation procedure described in this Article, Member States may, after exchanging all relevant information, decide to appoint liaison officers to Italy and to Greece.9. In line with the Union acquis, Member States shall fully implement their obligations. Accordingly, identification, registration and fingerprinting for the relocation procedure shall be guaranteed by Italy and by Greece. To ensure that the process remains efficient and manageable, reception facilities and measures shall be duly organised so as to temporarily accommodate people, in line with the Union acquis, until a decision is quickly taken on their situation. Applicants that elude the relocation procedure shall be excluded from relocation.10. The relocation procedure provided for in this Article shall be completed as swiftly as possible and not later than 2 months from the time of the indication given by the Member State of relocation as referred to in paragraph 2, unless the approval by the Member State of relocation referred to in paragraph 4 takes place less than 2 weeks before the expiry of that 2-month period. In such case, the time limit for completing the relocation procedure may be extended for a period not exceeding a further 2 weeks. In addition, the time limit may also be extended, for a further 4-week period, as appropriate, where Italy or Greece show objective practical obstacles that prevent the transfer from taking place.Where the relocation procedure is not completed within these time limits and unless Italy and Greece agree with the Member State of relocation to a reasonable extension of the time limit, Italy and Greece shall remain responsible for examining the application for international protection pursuant to Regulation (EU) No 604/2013.11. Following the relocation of the applicant, the Member State of relocation shall take and transmit to the Central System of Eurodac the fingerprints of the applicant in accordance with Article 9 of Regulation (EU) No 603/2013 and update the data sets in accordance with Article 10 of, and, where applicable, Article 18 of that Regulation.’18Article 5 of Decision 2015/1523, entitled ‘Relocation procedure’, was essentially worded in the same terms as Article 5 of Decision 2015/1601.19Article 12 of Decision 2015/1523 and of Decision 2015/1601 provided, inter alia, that the Commission was to report to the Council every six months on the implementation of those decisions.20The Commission subsequently undertook to submit monthly reports on the implementation of the various measures adopted at EU level for the relocation and resettlement of applicants for international protection, including those provided for in Decisions 2015/1523 and 2015/1601. On that basis, the Commission presented 15 reports on relocation and resettlement to the European Parliament, the European Council and the Council.21On 15 November 2017 and 14 March 2018, the Commission also submitted progress reports which included, inter alia, updated data on the relocations carried out under Decisions 2015/1523 and 2015/1601.22It is apparent from Article 13(1) and (2) of Decision 2015/1523 that the latter entered into force on 16 September 2015 and was to apply until 17 September 2017. Article 13(3) of that decision provided that it applied to persons who had arrived on the territory of Italy or Greece from 16 September 2015 until 17 September 2017, as well as to applicants for international protection who had arrived on the territory of one of those Member States from 15 August 2015 onwards.23Under Article 13(1) and (2) of Decision 2015/1601, the latter entered into force on 25 September 2015 and was to apply until 26 September 2017. Article 13(3) thereof provided that the decision was to apply to persons arriving on the territory of Italy and Greece from 25 September 2015 until 26 September 2017, as well as to applicants for international protection who had arrived on the territory of one of those Member States from 24 March 2015 onwards. Background and pre-litigation procedure 24On 16 December 2015, the Republic of Poland, pursuant to Article 5(2) of each of Decisions 2015/1523 and 2015/1601, indicated that 100 applicants for international protection could be relocated swiftly to its territory, 65 of which were from Greece and 35 of which were from Italy. Subsequently, the Hellenic Republic and the Italian Republic identified 73 and 36 persons, respectively, which they requested the Republic of Poland to relocate. That Member State did not follow up those requests and no applicant for international protection was relocated on the territory of that Member State under Decisions 2015/1523 and 2015/1601. The Republic of Poland did not subsequently make any relocation commitments.25It is common ground that at no point did Hungary, which did not participate in the voluntary relocation measure provided for in Decision 2015/1523, indicate a number of applicants for international protection who could be relocated swiftly to its territory under Article 5(2) of Decision 2015/1601 and that, as a result, no applicant for international protection was relocated to the territory of that Member State under that decision.26On 5 February and 13 May 2016, the Czech Republic, pursuant to Article 5(2) of each of Decisions 2015/1523 and 2015/1601, indicated that 30 and 20 applicants, respectively, for international protection could be relocated swiftly to its territory, 20 plus 10 of which were from Greece and two times 10 of which were from Italy. The Hellenic Republic and the Italian Republic identified 30 and 10 persons respectively whose relocation to the Czech Republic they requested. That latter Member State agreed to relocate 15 persons from Greece, 12 of which were actually relocated. The Czech Republic did not accept any of the persons identified by the Italian Republic and no relocation took place from Italy to the Czech Republic. Consequently, a total of 12 applicants for international protection, all from Greece, were relocated to the Czech Republic under Decisions 2015/1523 and 2015/1601. After 13 May 2016 the Czech Republic did not make any commitments concerning relocation.27By letters of 10 February 2016, the Commission called on the Republic of Poland, Hungary and the Czech Republic, in particular, to communicate at least every three months information concerning the number of applicants for international protection who could be relocated to their territory and to relocate such applicants at regular intervals in order to comply with their legal obligations.28By letters of 5 August 2016, the Commission drew to the attention of all the Member States their obligations concerning relocation under Decisions 2015/1523 and 2015/1601.29In a letter of 28 February 2017, sent jointly by the Commission and by the Presidency of the Council of the European Union to the Ministers responsible for Home Affairs, the Member States who had not yet relocated anyone or who had not relocated in proportion to their allocation were called upon to step up their efforts immediately.30The Czech Republic stated by a letter of 1 March 2017 that it considered its first offer, dated 5 February 2016, to relocate 30 persons to be adequate.31On 5 June 2017, the Czech Republic adopted Resolution No 439 by which it decided to suspend the implementation of the obligations it had taken on at the meeting of the European Council on 25 and 26 June 2015, subsequently formalised at the meeting of the Representatives of the Governments of the Member States, meeting within the European Council, of 20 July 2015 and implemented by Decision 2015/1523, as well as the implementation of its obligations under Decision 2015/1601 ‘in view of the significant deterioration of the security situation in the Union … and having regard to the obvious malfunctioning of the relocation system’.32In several of its reports to the European Parliament, the European Council and the Council on relocation and resettlement, the Commission insisted that the Member States indicate at regular intervals a number of applicants for international protection who could be relocated to their territory in accordance with the obligations on each Member State under Decision 2015/1523 and/or Decision 2015/1601 and actually relocate people in proportion to their obligations and, in particular, their allocations in Annexes I and II to Decision 2015/1601, failing which they would be subject to an action for failure to fulfil obligations.33In its Communications of 18 May 2016 to the European Parliament, the European Council and the Council — Third report on relocation and resettlement (COM(2016) 360 final); of 15 June 2016 to the European Parliament, the European Council and the Council — Fourth report on relocation and resettlement (COM(2016) 416 final); of 13 July 2016 to the European Parliament, the European Council and the Council — Fifth report on relocation and resettlement (COM(2016) 480 final); of 28 September 2016 to the European Parliament, the European Council and the Council — Sixth report on relocation and resettlement (COM(2016) 636 final); of 9 November 2016 to the European Parliament, the European Council and the Council — Seventh report on relocation and resettlement (COM(2016) 720 final); and of 8 December 2016 to the European Parliament, the European Council and the Council — Eighth report on relocation and resettlement (COM(2016) 791 final), the Commission stated that it reserved the right to use the powers conferred upon it under the Treaties if the Member States concerned did not take the necessary measures to comply with their obligations on relocation as provided for in Decisions 2015/1523 and 2015/1601.34Furthermore, in its Communications of 8 February 2017 to the European Parliament, the European Council and the Council — Ninth report on relocation and resettlement (COM(2017) 74 final); of 2 March 2017 to the European Parliament, the European Council and the Council — Tenth report on relocation and resettlement (COM(2017) 202 final); of 12 April 2017 to the European Parliament, the European Council and the Council — Eleventh report on relocation and resettlement (COM(2017) 212 final); and of 16 May 2017 to the European Parliament, the European Council and the Council — Twelfth report on relocation and resettlement (COM(2017) 260 final), the Commission specifically required the Republic of Poland, Hungary and the Czech Republic to comply with their relocation obligations under Decision 2015/1523 and/or Decision 2015/1601 by relocating applicants for international protection and by making relocation commitments. It indicated that it reserved the right to initiate proceedings for failure to fulfil obligations against those Member States if they did not comply with their obligations without delay.35In the Twelfth report on relocation and resettlement, the Commission required that the Member States that had not relocated any applicants for international protection or had not indicated for over a year a number of applicants for international protection which could be relocated from Greece and Italy to their territory should carry out such relocations or make such commitments immediately or, at the latest, within one month.36By letters of formal notice dated 15 June 2017, so far as concerns Hungary and the Czech Republic, and 16 June 2017, so far as concerns the Republic of Poland, the Commission initiated infringement proceedings under Article 258(1) TFEU against those three Member States. In those letters, the Commission maintained that those Member States had complied with neither their obligations under Article 5(2) of Decision 2015/1523 and/or Article 5(2) of Decision 2015/1601 nor, as a result, their subsequent relocation obligations provided for in Article 5(4) to (11) of Decision 2015/1523 and/or Article 5(4) to (11) of Decision 2015/1601.37Not being persuaded by the replies of the Republic of Poland, Hungary and the Czech Republic to those letters of formal notice, the Commission, on 26 July 2017, sent a reasoned opinion to each of those three Member States, maintaining its position that the Republic of Poland, since 16 March 2016, Hungary, since 25 December 2015, and the Czech Republic, since 13 August 2016, had failed to fulfil their obligations under Article 5(2) of Decision 2015/1523 and/or Article 5(2) of Decision 2015/1601 and, consequently, their subsequent obligations under Article 5(4) to (11) of Decision 2015/1523 and/or Article 5(4) to (11) of Decision 2015/1601, while calling upon those three Member States to take the necessary measures to comply with those obligations within four weeks, that is, by 23 August 2017 at the latest.38The Czech Republic, by a letter of 22 August 2017, and the Republic of Poland and Hungary, by letters of 23 August 2017, replied to the reasoned opinions.39In its Communication of 6 September 2017 to the European Parliament, the European Council and the Council — Fifteenth report on relocation and resettlement (COM(2017) 465 final), the Commission again noted that the Republic of Poland and Hungary were the only Member States not to have relocated any applicant for international protection, that the Republic of Poland had not made any relocation commitments since 16 December 2015 and that the Czech Republic had not made any such commitments since 13 May 2016 and had not relocated anyone since August 2016. It requested that those three Member States make relocation commitments and start relocating immediately. It also referred in that communication to the judgment of 6 September 2017, Slovakia and Hungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631), stating that, by that judgment, the Court had confirmed the validity of Decision 2015/1601.40By letters of 19 September 2017, the Commission drew that judgment to the attention of the Republic of Poland, Hungary and the Czech Republic, reiterating that it had confirmed the validity of Decision 2015/1601, and invited those three Member States to quickly adopt the necessary measures in order to make relocation commitments and to relocate people.41Having received no response to those letters, the Commission decided to bring the present actions. Procedure before the Court 42By decision of the President of the Court of 8 June 2018, the Czech Republic and Hungary were granted leave to intervene in support of the form of order sought by the Republic of Poland in Case C‑715/17.43By decision of the President of the Court of 12 June 2018, Hungary and the Republic of Poland were granted leave to intervene in support of the form of order sought by the Czech Republic in Case C‑719/17.44By decision of the President of the Court of 13 June 2018, the Czech Republic and the Republic of Poland were granted leave to intervene in support of the form of order sought by Hungary in Case C‑718/17.45After hearing the parties and the Advocate General on that point, the Court considers that it is appropriate, on account of the connection between them, to join the present cases for the purposes of the judgment, in accordance with Article 54 of the Rules of Procedure of the Court of Justice. The actions Admissibility 46The three Member States in question raise a number of arguments to dispute the admissibility of the action for failure to fulfil obligations brought against them. The objections of inadmissibility in Cases C‑715/17, C‑718/17 and C‑719/17, alleging that the actions are devoid of purpose and inconsistent with the objective of the procedure under Article 258 TFEU – Arguments of the parties 47The three Member States in question claim, in essence, that the action concerning them is inadmissible on the ground that, if the Court were to reach the finding that they had failed to fulfil their obligations under Decision 2015/1523 and/or Decision 2015/1601 as alleged, the fact remains that it is impossible for each Member State in question to remedy that failure by implementing the obligations imposed under Article 5(2) and 5(4) to 5(11) of each of those decisions, since the periods of application of those decisions and, consequently, the obligations which they impose, definitively expired on 17 September 2017 and 26 September 2017 respectively.48They submit that it follows from case-law of the Court of Justice that an action brought under Article 258 TFEU must have the objective of finding a failure to fulfil obligations with a view to putting an end to such a situation and its sole objective cannot be the delivery of a judgment that is purely declaratory finding there to have been a failure to fulfil obligations.49Accordingly, the actions are devoid of purpose and are not in line with the objective of the procedure for finding a failure to fulfil obligations under Article 258 TFEU.50In addition, as regards failures to fulfil obligations resulting from EU acts whose period of application has definitively expired and which may no longer be remedied, the Commission cannot claim a sufficient interest in seeking that the Court establish such failures to fulfil obligations.51The Commission disputes those arguments.– Findings of the Court 52The objective pursued by the procedure envisaged in Article 258 TFEU is an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation and such a procedure also makes it possible to establish whether a Member State has infringed EU law in a given case (judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 40 and the case-law cited).53In that context, one of the purposes of the pre-litigation procedure is to give the Member State concerned the opportunity to comply with its obligations arising from EU law (see, to that effect, judgment of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraphs 39 and 40 and the case-law cited).54It is apparent from the second paragraph of Article 258 TFEU that, if the Member State concerned does not comply with the reasoned opinion within the period laid down therein, the Commission may bring the matter before the Court. According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must consequently be determined by reference to the situation prevailing in the Member State at the end of that period (judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 39 and the case-law cited).55It is true, as the three Member States in question point out, that according to the Court’s settled case-law the Commission’s function is to ensure, of its own motion and in the general interest, that the Member States give effect to EU law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing them to an end (see, inter alia, judgment of 7 April 2011, Commission v Portugal, C‑20/09, EU:C:2011:214, paragraph 41 and the case-law cited).56However, that case-law must be understood to mean that, in an action for failure to fulfil obligations, the Commission cannot seek from the Court anything other than a finding that the failure to fulfil obligations alleged exists with a view to bringing that situation to an end. Thus, the Commission cannot, for example, ask the Court, in an action for failure to fulfil obligations, to require a Member State to adopt a particular conduct in order to comply with EU law (see, to that effect, judgment of 7 April 2011, Commission v Portugal, C‑20/09, EU:C:2011:214, paragraph 41).57On the other hand, an action for failure to fulfil obligations is admissible if the Commission confines itself to asking the Court to declare the existence of the alleged failure, in particular in a situation, such as that before the Court, in which the secondary EU legislation whose infringement is alleged definitively ceased to be applicable after the expiry of the time limit set in the reasoned opinion.58Having regard to the case-law recalled in paragraph 52 above, such an action for failure to fulfil obligations, inasmuch as it seeks an objective finding by the Court that a Member State has failed to fulfil the obligations imposed on it under an act of secondary legislation and makes it possible to establish whether a Member State has infringed EU law in a given case, falls wholly within the scope of the objective pursued by the procedure envisaged in Article 258 TFEU.59In that context, it must be observed that the period of application of Decisions 2015/1523 and 2015/1601 definitively expired on 17 September 2017 and 26 September 2017 respectively (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 94).60In this connection, the three Member States in question put forward the fact that it is no longer possible to remedy the failure alleged since the period of application of Decisions 2015/1523 and 2015/1601 has definitively expired. However, that fact, even if it were established, cannot lead to the inadmissibility of the present actions.61The three Member States in question were given the opportunity to end the alleged infringement before the expiry of the period laid down in the reasoned opinions, namely 23 August 2017, and thus before the expiry of the period of application of Decisions 2015/1523 and 2015/1601, by making relocation commitments under Article 5(2) of Decision 2015/1523 and/or of Decision 2015/1601 and by actually relocating people in fulfilment of their obligations under Article 5(4) to (11) of Decision 2015/1523 and/or Article 5(4) to (11) of Decision 2015/1601, as indeed they were requested by the Commission in a series of letters and in several of its monthly communications on relocation and resettlement.62Since, at the date at which the period thus fixed in the reasoned opinions expired, the obligations following for the Member States from Decisions 2015/1523 and 2015/1601 were still in force and, as the Commission submits without its having been disproven, the three Member States concerned still had not complied with those obligations even though the Commission had offered them the opportunity to do so by that date at the latest, that institution is, notwithstanding the subsequent expiry of the period of application of those decisions, entitled to bring the present action seeking that the Court establish the alleged failures to fulfil obligations.63Were the arguments of the three Member States in question to be accepted, any Member State which, by its conduct, were to impede the achievement of the objective inherent in a decision adopted on the basis of Article 78(3) TFEU and applying as a ‘provisional measure’ within the meaning of that provision, only during a limited period, as is the case for Decisions 2015/1523 and 2015/1601 (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraphs 90 and 94), could evade infringement proceedings, on the sole ground that the infringement concerns an act of EU law whose period of application definitively expired after the expiry date of the period set in the reasoned opinion, as a result of which the Member States might take advantage of their own misconduct (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 48).64In such a situation, the Commission would thus be unable to bring proceedings, within the powers that it holds under Article 258 TFEU, against the Member State concerned before the Court with a view to obtaining a declaration of such an infringement and to performing fully its role as guardian of the Treaties, conferred on it by Article 17 TEU (judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 49).65Furthermore, to uphold, in circumstances such as those of the present cases, the inadmissibility of an action for failure to fulfil obligations brought against a Member State on the grounds of infringement of decisions adopted under Article 78(3) TFEU, such as Decisions 2015/1523 and 2015/1601, would be detrimental both to the binding nature of those decisions and, more generally, to the respect for the values on which the European Union, in accordance with Article 2 TEU, is founded, one such being the rule of law (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 50).66A declaration as to the failures to fulfil obligations at issue is still, moreover, of substantive interest, inter alia, as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the European Union or private parties (see, to that effect, judgment of 7 February 1973, Commission v. Italy, 39/72, EU:C:1973:13, paragraph 11).67Lastly, as regards the argument that, following the definitive expiry of the period of application of Decisions 2015/1523 and 2015/1601, the Commission no longer has any interest in bringing proceedings, attention must be drawn to the principle, enshrined in settled case-law of the Court of Justice, that the Commission does not have to show a legal interest in bringing proceedings or to state the reasons why it is bringing an action for failure to fulfil obligations (judgment of 3 March 2016, Commission v Malta, C‑12/14, EU:C:2016:135, paragraph 26 and the case-law cited).68It is true in that regard, as the Republic of Poland submits, that in a situation in which the action was brought at a time when the failure to fulfil obligations had virtually come to an end owing to the substitution of new provisions of Union law for those alleged to have been infringed, the Court stated that, by way of exception to the principle referred to in the preceding paragraph of this judgment, it is, although not in a position to determine how far it was expedient for the Commission to bring the action, responsible for considering whether the Commission still has a ‘sufficient legal interest’ in bringing an action for failure to fulfil obligations relating to past conduct (see, to that effect, judgment of 9 July 1970, Commission v France, 26/69, EU:C:1970:67, paragraphs 9 and 10).69However, it must be stated that the situation at issue in the present infringement proceedings does not fall within the scope of the special situation referred to in the case-law cited in the preceding paragraph of this judgment, which is characterised by the replacement of the provisions of EU law whose infringement was alleged by new provisions which virtually led to the end of the infringement in question.70Furthermore and in any event, in the present instance, the Commission’s interest in bringing the proceedings cannot be called into question. First, the period fixed in the reasoned opinions ended at a date at which the criticised failures to fulfil obligations were still ongoing. Secondly, as also noted by the Advocate General in point 105 of her Opinion, these three cases raise important questions of Union law, including whether and, if so, under what conditions a Member State may rely on Article 72 TFEU to disapply decisions adopted on the basis of Article 78(3) TFEU, the binding nature of which is not disputed, and which are aimed at relocating a significant number of applicants for international protection in accordance with the principle of solidarity and fair sharing of responsibility between Member States, which, in accordance with Article 80 TFEU, governs the Union’s asylum policy (see, by analogy, judgment of 9 July 1970, Commission v France, 26/69, EU:C:1970:67, paragraphs 11 and 13).71Accordingly, the objections of inadmissibility alleging that the actions are devoid of purpose and inconsistent with the objective of the procedure under Article 258 TFEU, like those alleging that the Commission did not put forward a sufficient interest in bringing those proceedings, must be rejected. The objections of inadmissibility in Cases C‑715/17 and C‑718/17, alleging an infringement of the principle of equal treatment 72In Case C‑718/17, Hungary claims that the actions for failure to fulfil obligations are inadmissible since the Commission, in confining itself to bringing an action against solely the three Member States in question even though the majority of the Member States did not fully comply with their obligations under Decision 2015/1523 and/or Decision 2015/1601, infringed the principle of equal treatment and thus exceeded the limits of the discretion conferred upon it under Article 258 TFEU.73In Case C‑715/17, the Republic of Poland essentially puts forward an objection of inadmissibility of the same nature7475According to settled case-law of the Court, it is for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action (judgment of 19 September 2017, Commission v Ireland (Registration tax), C‑552/15, EU:C:2017:698, paragraph 34 and the case-law cited).76The Court has thus held that, given that discretion, the lack of infringement proceedings against one Member State is irrelevant in the assessment of the admissibility of infringement proceedings brought against another Member State (judgment of 3 March 2016, Commission v Malta, C‑12/14, EU:C:2016:135, paragraph 25).77Moreover, as the Commission pointed out at the hearing, it clearly stated in the Twelfth report on relocation and resettlement that Member States who had not yet relocated any applicant for international protection (the situation of the Republic of Poland and Hungary) and/or who had not made any commitments on relocation from Greece and Italy for over a year (the situation of the Republic of Poland and the Czech Republic) might be the subject of an action for failure to fulfil obligations unless those Member States started immediately, or at the latest within one month, to make such commitments and to actually relocate people.78Subsequently, in its Communication of 13 June 2017 to the European Parliament, the European Council and the Council — Thirteenth report on relocation and resettlement (COM(2017) 330 final), the Commission noted that, following its call in the Twelfth report on relocation and resettlement, all Member States with the exception of the Republic of Poland, Hungary and the Czech Republic had begun to make regular commitments under Article 5(2) of each of Decisions 2015/1523 and 2015/1601 and it indicated that it had therefore decided to initiate infringement proceedings against those three Member States.79In that context, the action brought by the Commission, inasmuch as it seeks to ensure that all the Member States, other than the Hellenic Republic and the Italian Republic, which were bound by the relocation obligations under Decisions 2015/1523 and 2015/1601 implement those obligations, falls fully within the scope of the objective pursued by those decisions.80It is important to recall that the burdens entailed by the provisional measures provided for in Decisions 2015/1523 and 2015/1601, since they were adopted under Article 78(3) TFEU for the purpose of helping the Hellenic Republic and the Italian Republic to better cope with an emergency situation characterised by a sudden influx of third-country nationals on their territory, must, in principle, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs the Union’s asylum policy (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 291).81The Commission’s action is therefore based, in the present case, on a neutral and objective criterion relating to the gravity and the persistence of the infringements which the Republic of Poland, Hungary and the Czech Republic are alleged to have committed, which, having regard to the objective of Decisions 2015/1523 and 2015/1601 such as that objective has just been recalled, serves to distinguish the situation of those three Member States from that of the other Member States, including those which did not fully comply with their obligations under those decisions.82It follows that, in the present case, the Commission did not in any way exceed the limits of its discretion under Article 258 TFEU in deciding to bring an action for failure to fulfil obligations against the Republic of Poland, Hungary and the Czech Republic and not against other Member States. Consequently, the objections of inadmissibility alleging infringement of the principle of equal treatment must be rejected. The objection of inadmissibility in Case C‑718/17, alleging infringement of the rights of the defence during the pre-litigation procedure 83In Case C‑718/17, Hungary alleges that the Commission, in the first place, did not observe its rights of the defence in the pre-litigation procedure inasmuch as the four-week deadline for replying set in the letter of formal notice and in the reasoned opinion was excessively short, in contrast to the usual deadline of two months, and was not warranted by a legitimate emergency.84It submits that the Commission infringed Hungary’s rights of the defence, in particular, by rejecting its application for an extension of the deadline for replying set in the reasoned opinion.85Hungary submits that the Commission, inasmuch as it did not decide until June 2017, and thus at a date relatively close to the expiry date of the period for the application of Decisions 2015/1523 and 2015/1601, to initiate the procedures for failure to fulfil obligations against the three Member States in question, is itself the cause of the emergency which it is relying upon. The excessively short deadlines for replying and the hurried nature of the pre-litigation procedure can be explained not by a real emergency, but by the fact that the Commission still wanted at all costs to be able to fix in the reasoned opinion the end of the period prescribed for the Member States in question to comply with their obligations such that it would expire before those decisions ceased to be applicable in September 2017, in order to prevent the defence that its actions were inadmissible from being raised against it. The urgency relied upon by the Commission is also belied by the fact that that institution still had to wait four months after the expiry of the deadline set in the reasoned opinion to bring the present actions.86In the second place, Hungary maintains that the Commission did not indicate during the pre-litigation procedure the infringement it was alleged to have committed.87Hungary submits in this connection that while, in its application, the Commission provided a short explanation indicating why, in its view, the infringement of Article 5(2) of Decision 2015/1601 entails an infringement of Article 5(4) to (11) of that decision, that explanation does not suffice to remedy the fact that, during the pre-litigation phase of the infringement proceedings, the Commission did not clearly define the infringement which those proceedings concerned.88Whereas in the grounds of the letter of formal notice and the reasoned opinion Hungary was alleged to have committed only an infringement of Article 5(2) of Decision 2015/1601, in the conclusions of that letter and that opinion, the Commission also alleged infringement of Article 5(4) to (11) of that decision without any additional analysis.89That imprecision in terms of the subject matter of the proceedings is also due to the fact that, in the pre-litigation procedure, the Commission referred at several points to an infringement both of Decision 2015/1523 and of Decision 2015/1601, although, in the absence of a voluntary commitment, Hungary was not required to relocate applicants for international procedure under the first of those two decisions.9091The Court has consistently held that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under EU law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The proper conduct of that procedure constitutes an essential guarantee required by the FEU Treaty, not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject matter (judgment of 19 September 2017, Commission v Ireland (Registration tax), C‑552/15, EU:C:2017:698, paragraphs 28 and 29 and the case-law cited).92Those objectives require the Commission to allow Member States a reasonable period to reply to letters of formal notice and to comply with reasoned opinions, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy an infringement or where the Member State concerned is fully aware of the Commission’s views long before the procedure starts (judgment of 13 December 2001, Commission v France, C‑1/00, EU:C:2001:687, paragraph 65).93Furthermore, according to the settled case-law already referred to in paragraph 75 above, it is for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action.94In the present case, as regards, in the first place, the objection of inadmissibility concerning the allegedly excessively short deadlines for replying which were fixed in the letter of formal notice and in the reasoned opinion, it is clear from the Commission’s reports on relocation and resettlement that that institution decided to initiate the infringement proceedings on 15 June 2017 and 16 June 2017, and thus at a relatively advanced stage of the two-year period of application of Decisions 2015/1523 and 2015/1601, which ended on 17 September 2017 and 26 September 2017 respectively. That decision was motivated by the fact that, before initiating those proceedings and before the expiry of that period of application, that institution wished to give one last opportunity to the three Member States in question, which had either not yet relocated any applicant for international protection or not made any relocation commitments for over a year, to comply with their obligations under those decisions by making formal commitments and by relocating applicants for international protection, at the latest within one month.95Moreover, that choice to initiate infringement proceedings at a relatively late stage in the two-year period of application of Decisions 2015/1523 and 2015/1601 is justified in view of the fact, already noted by the Court, that the relocation of a large number of applicants for international protection, such as that provided for in Decision 2015/1601, is an unprecedented and complex operation which requires a certain amount of preparation and implementation time, in particular as regards coordination between the authorities of the Member States, before it has any tangible effects (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 97).96Consequently, while, given the relatively close expiry dates of the period of application of Decisions 2015/1523 and 2015/1601, it finally became a matter of urgency in May 2017 to make provision for obliging the three Member States in question through infringement proceedings to comply with their relocation obligations imposed by those decisions for the remainder of that period of application, the reason for that urgency cannot be attributed to any inertia or late action on the part of the Commission, but is to be found in the persistent refusal of those three Member States to follow up the Commission’s repeated calls seeking that they comply with those obligations.97It was entirely legitimate for the Commission, in its discretion as to the choice of the point at which it initiates infringement proceedings, to first exhaust all the possibilities for convincing the three Member States in question to relocate people and to make formal commitments in order that those Member States should make a proper contribution — in accordance with the principle of solidarity and fair sharing of responsibilities between the Member States which, in accordance with Article 80 TFEU, governs the European Union’s asylum policy — to the objective of effective relocation pursued by Decisions 2015/1523 and 2015/1601, while ensuring that those Member States did not avoid an action for failure to fulfil their obligations should they decide not to comply with the Commission’s final call for compliance.98It follows that, in the present case, the Commission did not exceed the limits of that discretion.99It is important, moreover, to note that the three Member States in question had been informed, at least since 16 May 2017, the date of the Twelfth report on relocation and resettlement, of the Commission’s intention to initiate infringement proceedings against them if they continued to refuse to comply with Decisions 2015/1523 and 2015/1601.100They were also fully aware of the Commission’s view well before the initiation of the pre-litigation procedure on 15 June 2017 and 16 June 2017. The Commission’s view as to the failure to fulfil obligations alleged against the three Member States concerned had been highlighted by that institution in various letters and a number of reports on relocation and resettlement. In those circumstances, the deadlines in question of four weeks cannot be regarded as unreasonably short.101Moreover, it does not appear that the four-week deadlines for replying set in the letters of formal notice and in the reasoned opinions would have precluded the Member States in question from effectively putting forward, in the pre-litigation procedure, their pleas in defence against the complaints set out by the Commission.102In their statements in defence, rejoinders and statements in intervention, the three Member States in question in essence repeat the arguments which they had already raised in their responses to the letters of formal notice and to the reasoned opinions.103It is also necessary to reject Hungary’s more specific argument that the Commission could not impose on it deadlines for replying of four weeks and could not refuse to grant it an extension of those deadlines where they expired in the summer of 2017, during which a reduced staff in the Hungarian ministry concerned had to prepare a response not only in that case but also in two other cases which raised complex issues of interpretation of EU law and required significant work.104Hungary knew, as of at least 16 May 2017, the date of the Twelfth report on relocation and resettlement, that the Commission intended within short notice to initiate proceedings for failure to fulfil obligations against that Member State if it continued not to implement Decision 2015/1601. Hungary also could not fail to be aware of the fact that, if those proceedings were initiated, the Commission would be obliged to grant relatively short deadlines for replying in order to ensure that the pre-litigation procedure could be completed before the expiry of the period of application of that decision on 26 September 2017. Accordingly, it was for that Member State to make sufficient arrangements, including over the summer of 2017, to be able to respond to the letter of formal notice and the reasoned opinion.105In the second place, as regards the alleged vagueness of the objections raised by the Commission against Hungary in the pre-litigation procedure and, more specifically, the fact that the link between the failure to fulfil obligations arising from Article 5(2) of Decision 2015/1601 and the failure to fulfil obligations arising from Article 5(4) to (11) of that decision was explained only in the application and then in a particularly succinct manner, it must be noted that both in the conclusions of the letter of formal notice and in those of the reasoned opinion, the Commission expressly criticised Hungary for a breach of its obligations under Article 5(2) of Decision 2015/1601 and, ‘consequently’, of its ‘other relocation obligations’ imposed by Article 5(4) to (11) of that decision.106Moreover, the Commission explained that causal link in the grounds of the letter of formal notice and of the reasoned opinion in identical and sufficiently clear terms, stating that the commitments referred to in Article 5(2) of Decision 2015/1601 constitute the ‘first step’ on which the detailed and binding procedure for administrative cooperation between the Hellenic Republic and the Italian Republic, on one hand, and, on the other hand, the Member States of relocation, is ‘built’, with the aim of effecting the transfer of applicants for international protection from the first two Member States to the others, and that Article 5(4) to (11) of that decision contains a series of precise and consequent legal obligations for the Member States of relocation.107In that regard, it must be observed that the actual relocation of applicants for international protection in return for their transfer to the territory of a Member State of relocation is possible only if that Member State has, in the first stage of the relocation procedure, made a commitment to that effect in respect of a certain number of applicants for international protection. Where no such commitment has been made, in breach of Article 5(2) of each of Decisions 2015/1523 and 2015/1601, that failure to fulfil obligations necessarily leads to a failure to fulfil the consequent obligations imposed under Article 5(4) to (11) of each of those decisions in the context of the subsequent stages of the procedure aimed at the actual relocation of the applicants in question in return for their transfer to the territory of the Member State concerned.108Accordingly, Hungary could not be unaware of the clear causal link between infringement of Article 5(2) of Decision 2015/1601 and that of Article 5(4) to (11) of that decision.109Moreover, while it is true that in some of the grounds of the letter of formal notice and of the reasoned opinion, in particular those describing the legal framework, the Commission referred not only to Decision 2015/1601 but also to Decision 2015/1523, even though Hungary was not bound by the latter decision, the subject matter of Hungary’s alleged infringement was quite clear to that Member State from a reading of all the grounds of the letter of formal notice and of the reasoned opinion, in particular those concerning the Commission’s assessment which refer only to Decision 2015/1601. Furthermore, in the conclusions of both the letter of formal notice and the reasoned opinion, Hungary is alleged to have failed to fulfil its obligations only with regard to that decision. Therefore, it does not seem that the alleged vagueness of some of the grounds of the application could have affected the exercise by Hungary of its rights of defence.110Having regard to the foregoing, the objection of inadmissibility raised by Hungary and alleging infringement of the rights of the defence during the pre-litigation procedure must be rejected. The objection of inadmissibility in Case C‑719/17, alleging that the application lacked precision and was inconsistent 111In Case C‑719/17, the Czech Republic, following a question requiring a written answer put to it by the Court for the purposes of the hearing, disputed in its answer to that question the admissibility of the action concerning it on the ground that the application does not state consistently and precisely how it is to have failed to fulfil its obligations. It submits in that regard that, in the form of order sought in the application, the date of the start of the infringement alleged against it is not mentioned, whereas, in the conclusions of both the letter of formal notice and the reasoned opinion, 13 August 2016 is mentioned as the date of the start of the infringement. In addition, it submits that certain grounds of the application indicate either 13 May 2016 or 13 August 2016 as the date of the start of that infringement.112113An action must be considered having regard only to the form of order sought in the application initiating proceedings (judgment of 30 September 2010, Commission v Belgium, C‑132/09, EU:C:2010:562, paragraph 35 and the case-law cited).114It also follows from settled case-law in relation to Article 120(c) of the Rules of Procedure that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 52 and the case-law cited).115The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 53).116In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties. Accordingly, a contradiction in the heads of claim put forward by the Commission in support of its action for failure to fulfil obligations does not satisfy the requirements imposed (judgment of 2 June 2016, Commission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 35).117In the present case, although in the conclusions of both the letter of formal notice and the reasoned opinion the Commission fixed the date of the start of the infringement as alleged against the Czech Republic at 13 August 2016, the form of order sought in the application in Case C‑719/17, as published in the Official Journal of the European Union (OJ 2018 C 112, p. 19), mentions neither that date nor indeed another date as the date of the start of that infringement.118Accordingly, the description in the form of order sought in the application initiating proceedings of the conduct alleged against the Czech Republic is, to a degree, vague or ambiguous. That form of order could thus be understood to the effect that that Member State infringed its obligations resulting from Article 5(2) of each of Decisions 2015/1523 and 2015/1601 throughout the two-year period of application of those decisions, whereas it is not disputed that the Czech Republic made relocation commitments under those provisions during that period of application, its second and last commitment dating from 13 May 2016.119However, while, having regard to what was stated in paragraph 113 above, that vagueness or ambiguity in the form of order sought in the application in Case C‑719/17 is regrettable, the fact remains that it is sufficiently clear from the grounds of the application and confirmed by the reply that the precise failure to fulfil obligations alleged by the Commission against the Czech Republic consists in its failure to have made any relocation commitments under Article 5(2) of each of Decisions 2015/1523 and 2015/1601 after 13 May 2016. Since, under those provisions, such commitments must be made ‘at least every 3 months’, the date of the start of the infringement alleged against the Czech Republic is necessarily 13 August 2016, as the Commission indeed expressly stated both in the conclusions of the letter of formal notice and of the reasoned opinion and in certain grounds of the application.120It follows that the Czech Republic could not reasonably have been in any doubt as to the precise date at which its failure to fulfil its obligations, as alleged by the Commission, began and that it was able to exercise its rights of defence effectively in respect of that failure to fulfil obligations (see, by analogy, judgments of 5 May 2011, Commission v Portugal, C‑267/09, EU:C:2011:273, paragraph 28, and of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 57). In those circumstances, there is also no risk of the Court ruling ultra petita.121Accordingly, the objection of inadmissibility raised by the Czech Republic alleging the lack of precision or inconsistency of the application initiating proceedings in Case C‑719/17 must be rejected.122In respect of Case C-718/17, it must also be pointed out that while in the reasoned opinion the Commission fixed the date of the start of the infringement alleged against Hungary at 25 December 2015, the form of order sought in the application, as published in the Official Journal of the European Union (OJ 2018 C 112, p. 19), does not for its part mention any date in that regard. In those circumstances, and since the subject-matter of the proceedings brought before the Court is delimited by the reasoned opinion (see, inter alia, judgment of 18 June 1998, Commission v Italy, C-35/96, EU:C:1998:303, paragraph 28 and the case-law cited), the action in that case is admissible in so far as it concerns an alleged failure by Hungary to fulfil its obligations under Article 5(2) and Article 5(4) to (11) of Decision 2015/1601 as of 25 December 2015.123Having regard to all the foregoing, and subject to the clarification in the preceding paragraph, the three actions for failure to fulfil obligations must be held admissible. Substance Whether the infringements alleged in fact took place 124It should be borne in mind that, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission, which is responsible for proving the existence of the alleged infringement, to provide the Court with the information necessary for it to determine whether that infringement is made out, and the Commission may not rely on any presumption for that purpose (judgment of 18 November 2010, Commission v Portugal, C‑458/08, EU:C:2010:692, paragraph 54 and the case-law cited).125In the present instance the Commission alleges that the Republic of Poland, from 16 March 2016, Hungary, from 25 December 2015, and the Czech Republic, from 13 August 2016, failed to fulfil their obligations under Article 5(2) of Decision 2015/1523 and/or Article 5(2) of Decision 2015/1601 and, as a consequence, their subsequent obligations concerning relocation under Article 5(4) to (11) of Decision 2015/1523 and/or Article 5(4) to (11) of Decision 2015/1601.126In this respect, it should be noted, first, that the obligation to make relocation commitments at least every three months is laid down in Article 5(2) of Decision 2015/1523 in identical terms to those of Article 5(2) of Decision 2015/1601 and that subsequent obligations to actually relocate people are laid down in Article 5(4) to (11) of Decision 2015/1523 in essentially identical terms to Article 5(4) to (11) of Decision 2015/1601, the few differences in the wording of Article 5(4) and Article 5(9) being irrelevant for the purposes of assessing the merits of the three actions.127Secondly, as has already been observed in paragraph 107 above, there is a clear causal link, about which the Member States in question could not reasonably have been in any doubt, between the infringement of Article 5(2) of Decision 2015/1523 and/or Article 5(2) of Decision 2015/1601 and the infringement of Article 5(4) to (11) of Decision 2015/1523 and/or Article 5(4) to (11) of Decision 2015/1601.128These are in fact consequent obligations in the relocation procedure, such that, if the obligation imposed under Article 5(2) of each of those decisions is not complied with, to the extent that relocation commitments concerning a certain number of applicants for international protection are not made, the obligations imposed under Article 5(4) to (11) of each of those decisions with a view to the actual relocation of applicants for international protection in respect of which commitments have been made are not complied with either.129It must be stated that the three Member States in question do not dispute the fact that on the expiry of the period laid down in the reasoned opinions, namely 23 August 2017, they had failed to fulfil their obligations under Article 5(2) of Decision 2015/1523 and/or Article 5(2) of Decision 2015/1601, and therefore the existence of those infringements and, consequently, of infringements of their subsequent relocation obligations under Article 5(4) to (11) of Decision 2015/1523 and/or Article 5(4) to (11) of Decision 2015/1601 should be regarded as established.130Those infringements may indeed not be denied given that, in its various monthly reports on relocation and resettlement, of which it is common ground that the three Member States in question knew, the Commission had monitored, in particular, the progress of the relocations from Greece and Italy provided for under Decisions 2015/1523 and 2015/1601, indicating, in respect of each Member State of relocation, the number of applicants for international protection in respect of which relocation commitments had been made and the number of applicants for international protection who were actually relocated. Those reports show that the infringements alleged by the Commission and set out in paragraph 125 above actually took place.131In the case of the Czech Republic, the existence of the infringement alleged against it is also shown clearly by Resolution No 439 of 5 June 2017, mentioned in paragraph 31 above, by which that Member State decided to suspend the implementation of the obligations it had taken on at the meeting of the European Council on 25 and 26 June 2015, subsequently formalised at the meeting of the Representatives of the Governments of the Member States, meeting within the European Council, of 20 July 2015 and implemented by Decision 2015/1523, as well as the implementation of its obligations under Decision 2015/1601.132Therefore, the Commission has proven that the infringements alleged in the three sets of infringement proceedings in question took place.133That said, the three Member States at issue put forward a series of arguments which they claim vindicates them for having disapplied Decisions 2015/1523 and 2015/1601. The arguments concerned, first, relate to the responsibilities of Member States with regard to the maintenance of law and order and the safeguarding of internal security, arguments derived by the Republic of Poland and Hungary from Article 72 TFEU read in conjunction with Article 4(2) TEU and, secondly, are derived by the Czech Republic from the malfunctioning and alleged ineffectiveness of the relocation mechanism as provided for under those decisions. The pleas in defence derived by the Republic of Poland and Hungary from Article 72 TFEU, read in conjunction with Article 4(2) TEU Arguments of the parties 134The Republic of Poland and Hungary submit, in substance, that, in the present case, they were entitled under Article 72 TFEU, read in conjunction with Article 4(2) TEU, which reserves to them exclusive competence for the maintenance of law and order and the safeguarding of internal security in the context of acts adopted in the area of freedom, security and justice referred to in Title V of the FEU Treaty, to disapply their secondary, and therefore lower-ranking, legal obligations arising from Decision 2015/1523 and/or Decision 2015/1601, acts adopted on the basis of Article 78(3) TFEU and therefore falling within the scope of Title V of the FEU Treaty.135Those Member States submit that they decided, under Article 72 TFEU, to disapply Decision 2015/1523 and/or Decision 2015/1601. They take the view that, according to their assessment of the risks posed by the possible relocation on their territory of dangerous and extremist persons who might carry out violent acts or acts of a terrorist nature, the relocation mechanism as provided for in Article 5 of each of those decisions and as it was applied by the Greek and Italian authorities did not enable them to fully guarantee the maintenance of law and order and the safeguarding of internal security.136In this connection, those Member States refer to the many problems encountered in the application of the relocation mechanism so far as concerns, in particular, establishing with sufficient certainty the identity of applicants for international protection who could be relocated and where such applicants originated from. They submit that those problems were aggravated by the lack of cooperation by the Greek and Italian authorities in the relocation procedure, in particular by the refusal of those authorities to allow liaison officers from the Member States of relocation to conduct interviews with the applicants concerned before their transfer.137The Republic of Poland takes the view, in particular, that Article 72 TFEU is not a provision having regard to which the validity of an act of EU law may be called into question. On the contrary, it is a rule comparable to a conflict-of-law rule under which the prerogatives of the Member States in the field of maintenance of law and order and safeguarding of internal security take precedence over their obligations under secondary law. It submits that a Member State can invoke Article 72 in order not to implement an act adopted under Title V of the Treaty each time it considers that there is a risk, even a potential risk, for the maintenance of law and order and the safeguarding of internal security for which it bears responsibility. In that regard, a Member State has a very wide margin of discretion and must only show the plausibility of a risk for the maintenance of law and order and the safeguarding of internal security in order to be able to rely on Article 72 TFEU138Without raising a separate plea in defence derived from Article 72 TFEU, the Czech Republic, for its part, contends that, in order to counter the threats to public security posed by the relocation of persons with potential links to religious extremism, it should be ensured that each Member State of relocation is able to safeguard its internal security. Such safeguarding of internal security was not ensured on account above all of the absence of adequate information on the persons concerned and of the impossibility of conducting interviews to ascertain that the applicants for international protection concerned do not pose a threat to national security or law and order in the Member State of relocation. Findings of the Court 139In a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness. Since Decisions 2015/1523 and 2015/1601 were, as of their adoption, of a binding nature for the Republic of Poland and the Czech Republic, those Member States were required to comply with those acts of EU law and to implement them throughout their two-year period of application. The same applies in respect of Hungary as regards Decision 2015/1601, an act which was of a binding nature for that Member State as of its adoption and throughout its two-year period of application (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraph 85).140That binding nature of Decisions 2015/1523 and 2015/1601 is not in any way altered by the fact that the lawfulness of Decision 2015/1601 was challenged by Hungary and the Slovak Republic before the Court of Justice, in the context of an action for annulment under Article 263 TFEU, proceedings in which the Republic of Poland intervened in support of those two Member States. None of those Member States has moreover sought a suspension of the implementation of that latter decision or the adoption of interim measures by the Court of Justice under Articles 278 and 279 TFEU, so that those actions for annulment had no suspensive effect, in accordance with Article 278 TFEU (see, by analogy, judgment of 27 March 2019, Commission v Germany, C‑620/16, EU:C:2019:256, paragraphs 86 and 87).141Besides, by the judgment of 6 September 2017, Slovakia and Hungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631), the Court dismissed those actions for annulment directed against Decision 2015/1601, thereby confirming the lawfulness of that decision.142In the present case, the Republic of Poland and Hungary, while indicating that they do not intend to plead the illegality of Decision 2015/1523 and/or of Decision 2015/1601 in the light of Article 72 TFEU, maintain that that article allowed them to disapply those decisions or one or the other of those decisions.143In this connection, according to settled case-law of the Court of Justice, although it is for the Member States to adopt appropriate measures to ensure law and order on their territory and their internal and external security, it does not follow that such measures fall entirely outside the scope of European Union law. As the Court has already held, the only articles in which the Treaty expressly provides for derogations applicable in situations which may affect law and order or public security are Articles 36, 45, 52, 65, 72, 346 and 347 TFEU, which deal with exceptional and clearly defined cases. It cannot be inferred that the Treaty contains an inherent general exception excluding all measures taken for reasons of law and order or public security from the scope of European Union law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, might impair the binding nature of European Union law and its uniform application (see to that effect, inter alia, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 51, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 62 and the case-law cited).144In addition, the derogation provided for in Article 72 TFEU must, as is provided in settled case-law, inter alia in respect of the derogations provided for in Articles 346 and 347 TFEU, be interpreted strictly (see, to that effect, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 52, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 63).145It follows that, although Article 72 TFEU provides that Title V of the Treaty is not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, it cannot be read in such a way as to confer on Member States the power to depart from the provisions of the Treaty based on no more than reliance on those responsibilities (see, by analogy, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 53, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 64).146The scope of the requirements relating to the maintenance of law and order or national security cannot therefore be determined unilaterally by each Member State, without any control by the institutions of the European Union (see, to that effect, judgments of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraph 48, and of 2 May 2018, K. and H.F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 40 and the case-law cited).147It is for the Member State which seeks to take advantage of Article 72 TFEU to prove that it is necessary to have recourse to that derogation in order to exercise its responsibilities in terms of the maintenance of law and order and the safeguarding of internal security (see, by analogy, judgments of 15 December 2009, Commission v Denmark, C‑461/05, EU:C:2009:783, paragraph 55, and of 4 March 2010, Commission v Portugal, C‑38/06, EU:C:2010:108, paragraph 66).148It must be observed in that regard, as regards Decision 2015/1601, that the Court in paragraphs 307 to 309 of the judgment of 6 September 2017, Slovakia and Hungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631), has already rejected the argument, raised by the Republic of Poland as an intervener, that that decision infringes the principle of proportionality, since it does not allow the Member States to effectively carry out their responsibilities to maintain law and order and safeguard internal security under Article 72 TFEU.149The Court held that recital 32 of Decision 2015/1601, which is moreover drafted in identical terms to those of recital 26 of Decision 2015/1523, stated, inter alia, that national security and public order should be taken into consideration throughout the relocation procedure, until the transfer of the applicant is implemented, and that, in that context, the applicant’s fundamental rights, including the relevant rules on data protection, must be fully respected (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 307).150The Court also referred to Article 5 of Decision 2015/1601, entitled ‘Relocation procedure’, which provides, in paragraph 7 thereof, whose wording is moreover identical to that of Article 5(7) of Decision 2015/1523, that Member States retain the right to refuse to relocate an applicant for international protection only where there are reasonable grounds for regarding him or her as a danger to their national security or public order or where there are serious reasons for applying the exclusion provisions set out in Articles 12 and 17 of Directive 2011/95 (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 308).151It must be added in that regard that Article 5(4) of Decision 2015/1523 and, in identical terms, Article 5(4) of Decision 2015/1601 provide that a Member State of relocation may decide not to approve the relocation of an applicant for international protection identified by the Hellenic Republic or the Italian Republic for the purposes of his or her relocation only if there are reasonable grounds as referred to in Article 5(7), that is to say, reasonable grounds for regarding the applicant in question as a danger to their national security or public order.152The manner in which the mechanism in Article 5 of each of those decisions functions indeed reflects the principles, reiterated in paragraphs 143 to 147 of the present judgment, according to which Article 72 TFEU is, as a derogatory provision, to be interpreted strictly and, accordingly, does not confer on Member States the power to depart from the provisions of European Union law based on no more than reliance on the interests linked to the maintenance of law and order and the safeguarding of internal security, but requires them to prove that it is necessary to have recourse to that derogation in order to exercise their responsibilities on those matters.153Therefore, the Council, in the adoption of Decisions 2015/1523 and 2015/1601, duly took into account the exercise of the responsibilities incumbent on Member States under Article 72 TFEU by rendering that exercise, so far as concerns the two stages of the relocation procedure subsequent to that of the making of commitments, subject to the specific conditions laid down in Article 5(4) and (7) of each of those decisions.154In that regard, with regard to the ‘serious reasons’ for applying the ‘exclusion’ provisions set out in Articles 12 and 17 of Directive 2011/95, reasons which in accordance with Article 5(7) of each of Decisions 2015/1523 and 2015/1601 allowed a Member State to refuse to relocate an applicant for international protection, it follows from the case-law of the Court that the competent authority of the Member State concerned cannot rely on the exclusion clause provided for in Article 12(2)(b) of Directive 2011/95 and Article 17(1)(b) of that directive, which concern the commission by the applicant for international protection of a ‘serious crime’, until it has undertaken, for each individual case, an assessment of the specific facts within its knowledge. That is done with a view to determining whether there are serious reasons for taking the view that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, come within the scope of that particular ground for exclusion, the assessment of the seriousness of the crime in question requiring a full investigation into all the circumstances of the individual case concerned (judgment of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, points 48, 55 and 58).155In addition, the Court stated that, while the grounds for exclusion in Articles 12 and 17 of Directive 2011/95 are structured around the concept of ‘serious crime’, the scope of the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 is broader than that of the ground for exclusion from refugee status laid down by Article 1(F)(b) of the Geneva Convention and Article 12(2)(b) of Directive 2011/95. While the ground for exclusion from refugee status laid down by that provision refers to a serious non-political crime committed outside the country of refuge prior to admission of the person concerned as a refugee, the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 refers more generally to a serious crime and is therefore limited neither territorially nor temporally, or as to the nature of the crimes at issue (judgment of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, points 46 and 47).156As to the so-called ‘reasonable’ grounds for regarding the applicant for international protection as a ‘danger to national security or public order’ in the territory of the Member State of relocation in question, which allow the latter under Article 5(4) of each of Decisions 2015/1523 and 2015/1601 not to approve the relocation of an applicant for international protection identified by the Hellenic Republic or the Italian Republic and, under Article 5(7) of each of those decisions, to refuse to relocate an applicant for international protection, those grounds, since they must be ‘reasonable’ and not ‘serious’ and do not necessarily relate to a serious crime already committed or a serious non-political crime committed outside the country of refuge before the person concerned was admitted as a refugee but only require evidence of a ‘danger to national security or public order’, clearly leave a wider margin of discretion to the Member States of relocation than the serious reasons for applying the exclusion provisions contained in Articles 12 and 17 of Directive 2011/95.157Furthermore, it should be noted that the wording of Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 differs, in particular, from that of Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), which requires that the personal conduct of the individual concerned must represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ of the Member State concerned. Consequently, the concept of ‘danger to … national security or public order’ within the meaning of the abovementioned provisions of Decisions 2015/1523 and 2015/1601 must be interpreted more broadly than it is in the case-law in relation to persons enjoying the right of free of movement. That concept may cover inter alia potential threats to national security or public order (see, by analogy, judgments of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraph 40, and of 12 December 2019, E.P. (Threat to public policy), C‑380/18, EU:C:2019:1071, paragraphs 29 and 32).158A wide discretion must therefore be accorded to the competent authorities of the Member States of relocation when they determine whether a third-country national to be relocated is a threat to their national security or public order (see, by analogy, judgment of 12 December 2019, E.P. (Threat to public policy), C‑380/18, EU:C:2019:1071, paragraph 37).159That said, as with the serious reasons for applying the provisions on exclusion in Articles 12 and 17 of Directive 2011/95, the reasonable grounds for regarding an applicant for international protection as a danger to national security or public order can be invoked by the authorities of the Member State of relocation only if there is consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question actually or potentially represents such a danger (see, by analogy, judgment of 12 December 2019, E.P. (Threat to public policy), C‑380/18, EU:C:2019:1071, paragraph 49), and not until those authorities, in respect of each applicant whose relocation is proposed, have made an assessment of the facts within their knowledge with a view to determining whether, in the light of an overall examination of all the circumstances of the individual case concerned, such reasonable grounds exist.160It follows that the wording set out, in the context of the relocation procedure, in Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 authorised the competent authorities of the Member State of relocation to rely on serious reasons or reasonable grounds relating to the maintenance of their national security or public order only following a case-by-case investigation of the danger actually or potentially represented by the applicant for international protection concerned for those interests. Thus, as the Advocate General also in essence observed in point 223 of her Opinion, it precluded a Member State from peremptorily invoking Article 72 TFEU in that procedure for the sole purposes of general prevention and without establishing any direct relationship with a particular case, in order to justify suspending the implementation of or even a ceasing to implement its obligations under Decision 2015/1523 and/or Decision 2015/1601.161That explains why Article 5(2) of each of Decisions 2015/1523 and 2015/1601, which concerned the first stage of the relocation procedure and set out the obligation on the Member States of relocation to indicate, at least every three months, the number of applicants for international protection who could be relocated swiftly to their territory, rendered that obligation unconditional and did not provide for the possibility for those Member States to rely upon the existence of a danger for their national security or public order to justify the non-application of that provision. The absence of identification, at that initial stage of that procedure, of the applicants to be relocated in the Member State concerned rendered impossible any individualised assessment of the risk which they might have represented for the public order or national security of that State.162As regards, further, the difficulties allegedly encountered by the Republic of Poland in guaranteeing national security or public order in the stages of the relocation procedure subsequent to its commitments made on 16 December 2016, those difficulties applied to the beginning of the two-year period of application of Decisions 2015/1523 and 2015/1601.163In this connection, as has already been pointed out in paragraph 95 above, the relocation of a large number of persons, such as that provided for by Decisions 2015/1523 and 2015/1601, is an unprecedented and complex operation which requires a certain amount of preparation and implementation time, in particular as regards coordination between the authorities of the Member States, before it has any tangible effects.164Furthermore, if, as the Republic of Poland and the Czech Republic maintain, the mechanism provided for in Article 5(4) and (7) of each of Decisions 2015/1523 and 2015/1601 was ineffective, in particular because of a lack of cooperation on the part of the Italian authorities, such practical difficulties do not appear to be inherent in that mechanism and must, should they arise, be resolved in the spirit of cooperation and mutual trust between the authorities of the Member States that are beneficiaries of relocation and those of the Member States of relocation. That spirit of cooperation and mutual trust must prevail when the relocation procedure provided for in Article 5 of each of those decisions is implemented (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 309).165In this connection, it is apparent from the reports on relocation and resettlement that, although at the beginning of the period of application of Decisions 2015/1523 and 2015/1601 the number of applicants for international protection who were relocated was relatively low, due to the fact that, inter alia, certain Member States refused in a considerable number of cases to relocate applicants for international protection identified by the Hellenic Republic or the Italian Republic on account, in particular, of the danger allegedly represented by those applicants for their public order or their security, that problem gradually became less significant and relocations were carried out at a steadier rhythm.166As is shown by the eighth, eleventh and twelfth reports on relocation and resettlement, the Member States of relocation were in fact able, in some circumstances, to perform additional security checks, even systematically, through, inter alia, interviews and, with respect to relocations from Italy, had the opportunity from 1 December 2016 to request assistance from the European Union Agency for Law Enforcement Cooperation (Europol) for the purpose of carrying out those interviews, with the objective of preventing those checks from continuing to unduly slow down the relocation process.167In addition, as regards relocations from Greece, the Member States of relocation had the opportunity, from the point at which Decisions 2015/1523 and 2015/1601 entered into force, to require that security interviews were to be carried out by their own police officers prior to relocation.168Those measures were additional to the mechanism already provided for in Article 5 of each of Decisions 2015/1523 and 2015/1601 for ensuring the identification of the persons in question, in particular in Article 5(5) and 5(11), which required that fingerprints be taken before and after transfer of the persons in question and that those fingerprints be transmitted to the Central System of Eurodac.169It follows that the Republic of Poland and Hungary cannot rely on Article 72 TFEU to justify their refusal to implement all the relocation obligations imposed on them by Article 5(2) and (4) to (11) of Decision 2015/1523 and/or by Article 5(2) and (4) to (11) of Decision 2015/1601.170As the Advocate General also essentially observed, in points 226 and 227 of her Opinion, the arguments derived from a reading of Article 72 TFEU in conjunction with Article 4(2) TEU are not such as to call into question that finding. There is nothing to indicate that effectively safeguarding the essential State functions to which the latter provision refers, such as that of protecting national security, could not be carried out other than by disapplying Decisions 2015/1523 and 2015/1601.171On the contrary, the mechanism provided for in Article 5(4) and (7) of each of those decisions, including in its specific application as it developed in practice during the periods of application of those decisions, left the Member States of relocation genuine opportunities for protecting their interests relating to public order and internal security in the examination of the individual situation of each applicant for international protection whose relocation was proposed, without prejudicing the objective of those decisions to ensure the effective and swift relocation of a significant number of applicants clearly in need of international protection in order to alleviate the considerable pressure on the Greek and Italian asylum systems.172Consequently, the pleas in defence derived by the Republic of Poland and Hungary from Article 72 TFEU, read in conjunction with Article 4(2) TEU, must be rejected. The plea in defence derived by the Czech Republic from the malfunctioning and alleged ineffectiveness of the relocation mechanism as provided for under Decisions 2015/1523 and 2015/1601 as applied in practice 173The Czech Republic claims that its decision to disapply Decisions 2015/1523 and 2015/1601 was warranted by the fact that, as applied in practice, the relocation mechanism as provided for by those decisions was to a large extent malfunctioning and ineffective, on account inter alia of the systematic lack of cooperation on the part of the Greek and Italian authorities or the actual absence in Greece or Italy, at the point at which relocation commitments were made, of applicants for international protection who were in a position to be relocated, which is demonstrated by the low success rate of that mechanism in terms of the total number of persons actually relocated.174Given the threats to public security entailed by the relocation of persons potentially linked to religious extremism, it should be guaranteed that each Member State of relocation is able to protect itself in accordance with Article 4(2) TEU and, more specifically, Article 72 TFEU. That principle is also reflected in Article 5(7) of each of Decisions 2015/1523 and 2015/1601. As applied in practice, the relocation mechanism did not guarantee such protection of public security on account, inter alia, of the lack of sufficient information on the persons concerned and the impossibility of carrying out security interviews, even though these are essential pre-requisites for ascertaining whether those persons constitute a danger to national security or public order in the Member State of relocation.175It follows that making relocation commitments under Article 5(2) of each of those decisions was no more than a purely formal exercise that did not achieve the objective of actual relocation pursued by those decisions.176The Czech Republic therefore preferred to concentrate its efforts on support measures more effective than a relocation measure by providing, both at bilateral level and within the framework of the European Union, financial, technical and staffing assistance to the third countries most affected and to the Member States in the front line of the massive influx of persons clearly in need of international protection.177178As a preliminary point, it should be recalled, as already stated in paragraph 31 of this judgment, that on 5 June 2017 the Czech Republic adopted Resolution No 439 by which that Member State decided to suspend the implementation of its obligations taken on at the meeting of the European Council on 25 and 26 June 2015, subsequently formalised at the meeting of the Representatives of the Governments of the Member States, meeting within the European Council, of 20 July 2015 and implemented by Decision 2015/1523, as well as the implementation of its obligations under Decision 2015/1601 ‘in view of the significant deterioration of the security situation in the Union … and having regard to the obvious malfunctioning of the relocation system’. It is common ground that at no subsequent point during the respective periods of application of those decisions did the Czech Republic lift that suspension.179In the present case, in its defence in the infringement proceedings concerning it, the Czech Republic relies on considerations relating to the alleged malfunctioning or ineffectiveness of the relocation mechanism provided for in Decisions 2015/1523 and 2015/1601, as applied in practice, including the specific mechanism provided for in Article 5(4) and (7) of each of those decisions aimed at enabling Member States to protect their national security or public order in the context of the relocation procedure, as a justification for its decision not to implement its relocation obligations under Article 5(2) and Article 5(4) to (11) of each of those decisions.180In this connection, it is not permissible, if the objective of solidarity inherent to Decisions 2015/1523 and 2015/1601 and the binding nature of those acts is not to be undermined, for a Member State to be able to rely, moreover without raising for that purpose a legal basis provided for in the Treaties, on its unilateral assessment of the alleged lack of effectiveness, or even the purported malfunctioning, of the relocation mechanism established by those acts, in particular so far as concerns the maintenance of public order and the safeguarding of internal security, in order to avoid any obligation to relocate people incumbent upon it under those acts.181As already pointed out in paragraph 80 of the present judgment, the burdens entailed by the provisional measures provided for in Decisions 2015/1523 and 2015/1601, since they were adopted under Article 78(3) TFEU for the purpose of helping the Hellenic Republic and the Italian Republic to better cope with an emergency situation characterised by a sudden influx of third-country nationals on their territory, must, in principle, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, which, in accordance with Article 80 TFEU, governs the Union’s asylum policy.182Furthermore, the practical difficulties in the application of Decisions 2015/1523 and 2015/1601 referred to by the Czech Republic do not appear to be inherent in the relocation mechanism provided for in those decisions, nor indeed in the specific mechanism contained in Article 5(4) and (7) of each of those decisions, and must, in accordance with what has already been recalled in paragraph 164 above, be resolved, should they arise, in the spirit of cooperation and mutual trust between the authorities of the Member States that are beneficiaries of relocation and those of the Member States of relocation. That spirit of cooperation and mutual trust must prevail when the relocation procedure provided for in Article 5 of each of those decisions is implemented.183Thus, the alleged ineffectiveness or alleged malfunctioning of the relocation mechanism did not prevent other Member States from making, at regular intervals, relocation commitments and from actually relocating applicants for international protection throughout the respective periods of application of Decisions 2015/1523 and 2015/1601 and, even more markedly, towards the end of those periods, in response to the call made by the Commission in its monthly reports on relocation and resettlement to intensify the rhythm of relocations before the expiry of those periods.184Moreover, some of the practical problems raised by the Czech Republic are due to the fact, already mentioned in paragraphs 95 and 163 above, that the relocation of a large number of persons, such as that provided for by Decisions 2015/1523 and 2015/1601, is an unprecedented and complex operation which requires a certain amount of preparation and implementation time, in particular as regards coordination between the authorities of the Member States, before it has any tangible effects.185In this connection, as already observed in paragraph 166 above, during the period of application of Decisions 2015/1523 and 2015/1601, some adjustments were made to the relocation procedure in order to address, inter alia, the practical problems mentioned by the Czech Republic. That is the case concerning, in particular, the option for Member States of relocation to perform additional security checks in Greece or Italy prior to the relocation of applicants for international protection and the opportunity, offered as of 1 December 2016, to request Europol’s assistance to carry out those additional security checks in Italy.186Lastly, it is also necessary to reject the Czech Republic’s argument that that Member State preferred to support the Hellenic Republic and the Italian Republic as Member States in the front line and certain third countries by the provision of aid other than relocations.187Since, as of their adoption and during their period of application, Decisions 2015/1523 and 2015/1601 were binding on the Czech Republic, that Member State was required to comply with the relocation obligations imposed under those decisions irrespective of the provision of other types of aid to the Hellenic Republic and the Italian Republic, even if such aid was also intended to alleviate the pressure on the asylum systems of those two frontline Member States. Besides, it should be noted that certain types of aid were indeed imposed under those decisions or under other acts adopted at European Union level. In no circumstances could such aid replace the implementation of the obligations resulting from Decisions 2015/1523 and 2015/1601.188It follows that the plea in defence derived by the Czech Republic from the alleged malfunctioning and alleged ineffectiveness of the relocation mechanism as provided for under Decisions 2015/1523 and 2015/1601 must be rejected.189Having regard to all the foregoing considerations, it must be declared that:–by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who can be relocated swiftly to its territory, the Republic of Poland has, since 16 March 2016, failed to fulfil its obligations under Article 5(2) of Decision 2015/1523 and Article 5(2) of Decision 2015/1601, and has consequently failed to fulfil its subsequent relocation obligations under Article 5(4) to (11) of each of those two decisions;by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who can be relocated swiftly to its territory, Hungary has, since 25 December 2015, failed to fulfil its obligations under Article 5(2) of Decision 2015/1601 and has consequently failed to fulfil its subsequent relocation obligations under Article 5(4) to (11) of that decision; andby failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who can be relocated swiftly to its territory, the Czech Republic has, since 13 August 2016, failed to fulfil its obligations under Article 5(2) of Decision 2015/1523 and Article 5(2) of Decision 2015/1601, and has consequently failed to fulfil its subsequent relocation obligations under Article 5(4) to (11) of each of those two decisions. Costs 190Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 140(1) of those rules, Member States which have intervened in the proceedings are to bear their own costs.191Since the Commission has applied, in Case C‑715/17, for costs to be awarded against the Republic of Poland and the Republic of Poland has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay those incurred by the Commission. It should be held that the Czech Republic and Hungary, which intervened in support of the Republic of Poland in that case, are to bear their own costs.192Since the Commission has applied, in Case C‑718/17, for costs to be awarded against Hungary and Hungary has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay those incurred by the Commission. It should be held that the Czech Republic and the Republic of Poland, which intervened in support of Hungary in that case, are to bear their own costs.193Since the Commission has applied, in Case C‑719/17, for costs to be awarded against the Czech Republic and the Czech Republic has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay those incurred by the Commission. It should be held that Hungary and the Republic of Poland, which intervened in support of the Czech Republic in that case, are to bear their own costs.On those grounds, the Court (Third Chamber) hereby: 1. Declares that Cases C‑715/17, C‑718/17 and C‑719/17 are joined for the purposes of the judgment; 2. Declares that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who can be relocated swiftly to its territory, the Republic of Poland has, since 16 March 2016, failed to fulfil its obligations under Article 5(2) of Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece, and Article 5(2) of Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, and has consequently failed to fulfil its subsequent relocation obligations under Article 5(4) to (11) of each of those two decisions; 3. Declares that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who can be relocated swiftly to its territory, Hungary has, since 25 December 2015, failed to fulfil its obligations under Article 5(2) of Decision 2015/1601 and has consequently failed to fulfil its subsequent relocation obligations under Article 5(4) to (11) of that decision; 4. Declares that, by failing to indicate at regular intervals, and at least every three months, an appropriate number of applicants for international protection who can be relocated swiftly to its territory, the Czech Republic has, since 13 August 2016, failed to fulfil its obligations under Article 5(2) of Decision 2015/1523 and Article 5(2) of Decision 2015/1601, and has consequently failed to fulfil its subsequent relocation obligations under Article 5(4) to (11) of each of those two decisions; 5. Orders the Republic of Poland, in addition to bearing its own costs in Cases C‑715/17, C‑718/17 and C‑719/17, to pay those of the Commission in Case C‑715/17; 6. Orders Hungary, in addition to bearing its own costs in Cases C‑715/17, C‑718/17 and C‑719/17, to pay those of the Commission in Case C‑718/17; 7. Orders the Czech Republic, in addition to bearing its own costs in Cases C‑715/17, C‑718/17 and C‑719/17, to pay those of the Commission in Case C‑719/17. [Signatures]( *1 ) Languages of the case: Czech, Hungarian and Polish. | 98265-f12d052-458b | EN |
France has systematically and persistently exceeded the annual limit value for nitrogen dioxide since 1 January 2010 | 24 October 2019 ( *1 )(Failure of a Member State to fulfil obligations – Environment – Directive 2008/50/EC – Ambient air quality – Article 13(1) and Annex XI – Systematic and persistent exceedance of the limit values for nitrogen dioxide (NO2) in certain French zones and agglomerations – Article 23(1) – Annex XV – Exceedance period ‘as short as possible’ – Appropriate measures)In Case C‑636/18,ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 11 October 2018, European Commission, represented by J.-F. Brakeland, E. Manhaeve and K. Petersen, acting as Agents,applicant,v French Republic, represented by D. Colas, J. Traband and A. Alidière, acting as Agents,defendant,THE COURT (Seventh Chamber),composed of T. von Danwitz, acting as President of the Chamber, C. Vajda and A. Kumin (Rapporteur), Judges,Advocate General: M. Szpunar,Registrar: A. Calot Escobar,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1By its application, the European Commission asks the Court to find:–that, by systematically and persistently exceeding the annual limit value for nitrogen dioxide (NO2) since 1 January 2010 in 12 French agglomerations and air quality zones, namely Marseille (FR03A02), Toulon (FR03A03), Paris (FR04A01), Auvergne-Clermont-Ferrand (FR07A01), Montpellier (FR08A01), Toulouse Midi-Pyrénées (FR12A01), zone urbaine régionale (Regional urban area, ‘ZUR’) Reims Champagne-Ardenne (FR14N10), Grenoble Rhône-Alpes (FR15A01), Strasbourg (FR16A02), Lyon Rhône-Alpes (FR20A01), ZUR Vallée de l’Arve Rhône-Alpes (FR20N10) and Nice (FR24A01), and by systematically and persistently exceeding the hourly limit value for NO2 since 1 January 2010 in 2 French agglomerations and air quality zones, namely Paris (FR04A01) and Lyon Rhône-Alpes (FR20A01), the French Republic has, since that date, continued to fail to fulfil its obligations under Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1), read in conjunction with Annex XI to that directive, since the coming into force of the limit values in 2010, andthat the French Republic has failed, since 11 June 2010, to fulfil its obligations under Article 23(1) of Directive 2008/50, read in conjunction with Annex XV to that directive, and in particular the obligation, laid down in the second subparagraph of Article 23(1) of that directive, to ensure that the exceedance period is kept as short as possible. Legal context Directive 96/62/EC 2Article 7 of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (OJ 1996 L 296, p. 55), headed ‘Improvement of ambient air quality – General requirements’, stated in paragraphs 1 and 3:‘1. Member States shall take the necessary measures to ensure compliance with the limit values.…3. Member States shall draw up action plans indicating the measures to be taken in the short term where there is a risk of the limit values and/or alert thresholds being exceeded, in order to reduce that risk and to limit the duration of such an occurrence. Such plans may, depending on the individual case, provide for measures to control and, where necessary, suspend activities, including motor-vehicle traffic, which contribute to the limit values being exceeded.’3Article 8 of that directive, headed ‘Measures applicable in zones where levels are higher than the limit value’, provided in paragraphs 1, 3 and 4:‘1. Member States shall draw up a list of zones and agglomerations in which the levels of one or more pollutants are higher than the limit value plus the margin of tolerance.3. In the zones and agglomerations referred to in paragraph 1, Member States shall take measures to ensure that a plan or programme is prepared or implemented for attaining the limit value within the specific time limit.The said plan or programme, which must be made available to the public, shall incorporate at least the information listed in Annex IV.4. In the zones and agglomerations referred to in paragraph 1, where the level of more than one pollutant is higher than the limit values, Member States shall provide an integrated plan covering all the pollutants concerned.’4Under Article 11 of that directive, headed ‘Transmission of information and reports’, Member States were required to submit to the Commission annual reports on compliance with the limit values for NO2 concentrations. Directive 1999/30/EC 5Under Article 4 of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41), headed ‘Nitrogen dioxide and oxides of nitrogen’:‘1. Member States shall take the measures necessary to ensure that concentrations of nitrogen dioxide and, where applicable, of oxides of nitrogen, in ambient air, as assessed in accordance with Article 7, do not exceed the limit values laid down in Section I of Annex II as from the dates specified therein.The margins of tolerance laid down in Section I of Annex II shall apply in accordance with Article 8 of [Directive 96/62].2. The alert threshold for concentrations of nitrogen dioxide in ambient air shall be that laid down in Section II of Annex II.’6As a matter of the protection of human health, Annex II to Directive 1999/30 set 1 January 2010 as the date from which the limit values for NO2 were to be met.7Under Article 12 of that directive, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 19 July 2001. Directive 2008/50 8Directive 2008/50, which entered into force on 11 June 2008, replaces five pre-existing legislative acts relating to the development and management of ambient air quality, in particular Directives 96/62 and 1999/30, which were repealed as from 11 June 2010, as is apparent from Article 31 of Directive 2008/50.9Annex XI to that directive indicates, however, that the date by which the limit value for NO2 is to be met is 1 January 2010.10Article 1 of Directive 2008/50, headed ‘Subject matter’, states in points 1 to 3:‘This Directive lays down measures aimed at the following:1.defining and establishing objectives for ambient air quality[,] designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole;2.assessing the ambient air quality in Member States on the basis of common methods and criteria;3.obtaining information on ambient air quality in order to help combat air pollution and nuisance and to monitor long-term trends and improvements resulting from national and Community measures’.11Article 2 of that directive, headed ‘Definitions’, provides in points 5, 8, 16 to 18 and 24:‘For the purposes of this Directive:5.“limit value” shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;8.“air quality plans” shall mean plans that set out measures in order to attain the limit values or target values;16.“zone” shall mean part of the territory of a Member State, as delimited by that Member State for the purposes of air quality assessment and management;17.“agglomeration” shall mean a zone that is a conurbation with a population in excess of 250000 inhabitants or, where the population is 250000 inhabitants or less, with a given population density per km2 to be established by the Member States;18.“PM10” shall mean particulate matter which passes through a size-selective inlet as defined in the reference method for the sampling and measurement of PM10, EN 12341, with a 50% efficiency cut-off at 10 μm aerodynamic diameter;24.“oxides of nitrogen” shall mean the sum of the volume mixing ratio (ppbv) of nitrogen monoxide (nitric oxide) and nitrogen dioxide[,] expressed in units of mass concentration of nitrogen dioxide (μg/m3)’.12Article 13 of that directive, headed ‘Limit values and alert thresholds for the protection of human health’, provides in paragraph 1:‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.In respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein.Compliance with these requirements shall be assessed in accordance with Annex III.The margins of tolerance laid down in Annex XI shall apply in accordance with Article 22(3) and Article 23(1).’13Article 22 of that directive, headed ‘Postponement of attainment deadlines and exemption from the obligation to apply certain limit values’, is worded as follows:‘1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline.2. Where, in a given zone or agglomeration, conformity with the limit values for PM10 as specified in Annex XI cannot be achieved because of site-specific dispersion characteristics, adverse climatic conditions or transboundary contributions, a Member State shall be exempt from the obligation to apply those limit values until 11 June 2011[,] provided that the conditions laid down in paragraph 1 are fulfilled and that the Member State shows that all appropriate measures have been taken at national, regional and local level to meet the deadlines.3. Where a Member State applies paragraphs 1 or 2, it shall ensure that the limit value for each pollutant is not exceeded by more than the maximum margin of tolerance specified in Annex XI for each of the pollutants concerned.4. Member States shall notify the Commission where, in their view, paragraphs 1 or 2 are applicable, and shall communicate the air quality plan referred to in paragraph 1[,] including all relevant information necessary for the Commission to assess whether or not the relevant conditions are satisfied. In its assessment, the Commission shall take into account estimated effects on ambient air quality in the Member States, at present and in the future, of measures that have been taken by the Member States[,] as well as estimated effects on ambient air quality of current Community measures and planned Community measures to be proposed by the Commission.Where the Commission has raised no objections within nine months of receipt of that notification, the relevant conditions for the application of paragraphs 1 or 2 shall be deemed to be satisfied.If objections are raised, the Commission may require Member States to adjust or provide new air quality plans.’14Article 23 of Directive 2008/50, headed ‘Air quality plans’, states in paragraph 1:‘Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.Those air quality plans shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24. Those plans shall be communicated to the Commission without delay, but no later than two years after the end of the year the first exceedance was observed.Where air quality plans must be prepared or implemented in respect of several pollutants, Member States shall, where appropriate, prepare and implement integrated air quality plans covering all pollutants concerned.’15Annex XI to Directive 2008/50 sets the following limit values for NO2:Averaging PeriodLimit valueMargin of toleranceDate by which limit value is to be metNitrogen dioxide One hour200 μg/m3, not to be exceeded more than 18 times a calendar year… 0% by 1 January20101 January 2010Calendar year40 μg/m3 50% on 19 July 1999, decreasing on 1 January 2001 and every 12 months thereafter by equal annual percentages to reach 0% by 1 January 2010 Pre-litigation procedure 16On 7 March 2012, the French Republic requested, pursuant to Article 22(1) of Directive 2008/50, that the deadline laid down for compliance with the NO2 limit values be postponed. That request concerned the annual limit values of 24 of France’s zones and the hourly limit values of 3 of those zones. By decision of 22 February 2013, the Commission raised objections to that request for postponement, on the basis of Article 22(4) of that directive. That decision was not contested by the French Republic. That Member State was, consequently, obliged to comply with the NO2 limit values, calculated by hour or by calendar year, from 1 January 2010, in accordance with Annex XI to that directive.17As the annual NO2 limit values had been exceeded in many of France’s zones since 1 January 2010, on 12 February 2014, the Commission opened a case under the EU Pilot mechanism.18On 19 June 2015, the Commission sent the French authorities a letter of formal notice, in which it took the view that the French Republic had failed to observe the limit values for NO2 in 19 of France’s zones, set out in Annex I to that letter. The Commission also considered that although that Member State had adopted air quality plans and/or other measures seeking to reduce NO2 emissions, it had failed to fulfil its obligations under Article 23(1) of Directive 2008/50 and, in particular, the second subparagraph thereof, which requires that the exceedance period be kept as short as possible. Moreover, the Commission noted that the infringement was still ongoing.19By letter of 3 December 2015 and a further letter of 27 July 2016, the French authorities responded to the Commission’s letter of formal notice. In addition, they submitted their annual reports on 30 October 2015 for 2014 and on 22 October 2016 for 2015, respectively.20As it took the view that the French Republic’s response was not satisfactory, on 15 February 2017, the Commission issued a reasoned opinion, which was notified to the French Republic on 16 February 2017, in which it concluded that that Member State had failed, in 13 of France’s zones, namely the 12 zones which are the subject of the present action for failure to fulfil obligations and Saint-Étienne Rhône-Alpes (FR29A01), since 1 January 2010, to fulfil its obligations under, on the one hand, Article 13(1) of Directive 2008/50, read in conjunction with Annex XI to that directive, and, on the other, Article 23(1) of that directive, read in conjunction with Section A of Annex XV thereto. Consequently, the Commission invited the French Republic to take the measures necessary to comply with that reasoned opinion within a period of two months from receipt thereof.21The French authorities responded to that reasoned opinion by letter of 24 April 2017, supplemented by letters dated 16 October 2017, 8 February 2018 and 19 April 2018, in which those authorities recalled that the exceedance of limit values from 2010 was to be assessed in view, on the one hand, of the structural difficulties which prevent compliance with those values within the period of time allowed by Directive 2008/50, and, on the other, of the efforts which had resulted in a clear improvement in the ambient air quality in the zones concerned.22A technical meeting was also organised for 8 September 2017. That meeting was followed, on 30 January 2018, by a meeting, organised by the Commission, regarding air quality, involving the ministers responsible for the environment of a number of Member States, including the French Republic, and the Commissioner with responsibility for the matter.23As it nevertheless considered that the French Republic had failed to take all the measures necessary to fulfil its obligations pursuant to Directive 2008/50, on 11 October 2018, the Commission brought the present action. The action First complaint, alleging systematic and persistent infringement of the combined provisions of Article 13(1) of Directive 2008/50 and Annex XI thereto Arguments of the parties 24By its first complaint, the Commission argues that the French Republic has systematically and persistently breached the obligations arising under Article 13(1) of Directive 2008/50, read in conjunction with Annex XI thereto, given that the annual limits laid down by that directive for NO2 have been exceeded in the 12 zones and agglomerations referred to in paragraph 1 of the present judgment and that the hourly limits have been exceeded in 2 of those zones, namely Île-de-France-Paris and Lyon Rhône-Alpes.25The Commission argues that, in paragraph 69 of the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), which concerned ambient air pollution by PM10, which are also covered by Directive 2008/50, the Court held that exceeding the limit values is sufficient for a finding to be made that there has been an infringement of the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50. In the present case, the annual reports for 2010 to 2016 sent to the Commission by the French authorities themselves, in accordance with Article 27 of Directive 2008/50, and certain information provided by those authorities during the pre-litigation stage prove such infringement. The provisional data relating to 2017 have been made available by the French authorities, but they have not yet been validated by the Commission’s services.26The French Republic, first of all, puts forward two arguments.27On the one hand, the French Republic disputes that the exceedances of the NO2 limit values noted by the Commission, which were recorded by a limited number of measuring stations, all located close to certain major roads, are representative. Those exceedances are therefore not indicative of the air quality throughout the 12 zones and agglomerations concerned, which is improving overall.28In that context, the French Republic argues that taking the highest value in each zone does not allow a representative picture to be given of changes in the air quality throughout that zone.29On the other hand, the French Republic considers that the measures which it took are being hampered by the impact of population growth, accentuated by changes in modes of transport. Moreover, the measures to be adopted by Member States, which aim, in particular, to restrict traffic on busy roads, should take account of the features of urbanisation of the zones and agglomerations concerned. It is important that those measures do not cause traffic, and therefore, necessarily, harmful emissions, to be moved towards other urban areas and roads which are unsuitable or of insufficient size, and that they take into account the transport needs of the population. The French Republic emphasises, in that regard, that the discretion which Member States have in transposing Directive 2008/50 must be exercised in compliance with the provisions of the Treaties, in particular the fundamental principle of the free movement of goods and persons, which does not allow, for example, sectoral traffic prohibitions to be introduced.30Moreover, the development of other mobility solutions requires significant and costly investment, which can be carried out only in the long term. The effectiveness of the measures adopted by the French Republic also depends on the modernisation of the vehicle fleet, which is made difficult by the fact that households are keeping their vehicle for longer and longer.31The French Republic maintains, in addition, that more onerous rules, such as a rule seeking to increase tax on fuel, cannot currently be contemplated, due to the sensitivity of public opinion on that issue, and may therefore give rise to public unrest. In general, the effectiveness of the measures adopted is dependent on public behaviour and changes in attitudes.32To conclude these preliminary observations, the French Republic invokes the negligence which the Commission itself displayed in being slow to adopt, at EU level, the measures necessary for the attainment of the objectives pursued by Directive 2008/50. It argues, in particular, that the anticipated effect on NO2 emissions of the standards introduced at EU level by Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1) is less significant than the size of the reductions in emissions anticipated when the limit values were set as part of the adoption of Directive 2008/50.33The French Republic does not call into question the fact that the hourly and annual NO2 limit values have persistently been exceeded in the zones and agglomerations which are the subject of the action brought by the Commission. However, it disputes the allegedly systematic nature of those exceedances.34Moreover, the French Republic recalls that the majority of Member States are faced with structural difficulties which make it difficult to comply with the annual NO2 limit value set by Directive 2008/50.35In that context, the French Republic argues that account should be taken of the location of the measuring stations, when examining the values registered by those stations, in the light of the fact that some of them are situated closer to NO2 emission sources than is required by Directive 2008/50. Account should also be taken of the overall improvement in the air quality in France. The French Republic points out, in that regard, that the measures which it took have resulted in a considerable reduction in NO2 emissions. Throughout France, the number of measuring stations where the annual NO2 limit value was exceeded was more than halved between 2000 and 2017. From 2010 to 2017, the proportion of urban measuring stations, which are affected by road traffic, which found that the annual NO2 limit value had been exceeded was halved. Over the same period, the average NO2 concentration measured by those urban measuring stations fell twice as fast as for all measuring stations. The proportion of the population exposed to the effects of the exceedance of that limit value therefore decreased.36The French Republic concludes that, despite the barriers constituted by the structural factors mentioned, an examination of changes in the air quality throughout France reveals a significant fall in NO2 emissions and concentrations since 2010, as a result of the measures taken by the French authorities. Findings of the Court 37The complaint alleging infringement of the obligation set out in the first subparagraph of Article 13(1) of Directive 2008/50 must be assessed taking into account the settled case-law according to which the procedure provided for in Article 258 TFEU presupposes an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation (judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 61 and the case-law cited).38It follows that, in the present case, the fact that the limit values for NO2 in ambient air were exceeded is sufficient in itself to make it possible to establish an infringement of the provisions of Article 13(1) of Directive 2008/50, in conjunction with those of Annex XI thereto (see, by analogy, judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 62 and the case-law cited).39In the present case, the data derived from the annual reports on air quality submitted by the French Republic under Article 27 of Directive 2008/50 show that, from 2010 to 2016 inclusive, that Member State very regularly exceeded, on the one hand, the annual limit values for NO2 in 12 French agglomerations and zones and, on the other, the hourly limit value for that pollutant in 2 of those agglomerations and zones.40It follows that the exceedance thus established must be regarded as persistent, as the French Republic has, furthermore, recognised since the pre-litigation stage, but also systematic, without the Commission’s being required to provide additional evidence of that exceedance.41With regard to the argument put forward by the French Republic that the failure to fulfil its obligations under Article 13(1) of Directive 2008/50, read in conjunction with Annex XI thereto, must be assessed in view of the structural difficulties encountered in the transposition of that directive, it must be recalled that, as set out in Annex XI to that directive, the date from which the limit values for NO2 were to be met was 1 January 2010.42When it has been objectively found that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary law, it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical or structural difficulties encountered by it (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 76 and the case-law cited).43Consequently, the French Republic’s argument relating to the existence of structural problems cannot be accepted.44The same applies to that Member State’s argument relating to the non-representative nature of the exceedances of the NO2 limit values. First, with regard to the fact that the Commission took only the annual and hourly values of NO2 concentration in ambient air from the measuring station which registered the highest values in the zone concerned, it is sufficient to recall that the Court has held that Articles 13(1) and 23(1) of Directive 2008/50 must be interpreted, by reference to the general scheme and the purpose of the rules of which those provisions form part, as meaning that, in order to establish whether a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been exceeded, it is sufficient that a pollution level higher than that value be measured at a single sampling point (judgment of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraphs 60, 66 and 68). It follows that the Commission was entitled to take, for each of the 12 zones or agglomerations covered by the present action, the annual and hourly values of NO2 concentration in ambient air from the measuring station which registered the highest values in the zone or agglomeration concerned.45With regard, secondly, to the argument that the alleged exceedances were recorded by measuring stations situated as close as possible to major roads, some of which are, moreover, located closer to NO2 emission sources than is required by Directive 2008/50, it must be observed that, while it is true that the location of sampling points is central to the air quality assessment and improvement system provided for by that directive and that the very purpose of that directive would be compromised if sampling points located in a given zone or agglomeration were not established in accordance with the criteria laid down therein (judgment of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraphs 47 and 49), the French Republic does not dispute that the location of the measuring stations close to major roads is compliant with the criteria for macroscale siting of sampling points defined in Annex III to Directive 2008/50.46With regard to the French Republic’s argument that the need to comply with EU law and, in particular, the free movement of goods limits the discretion of Member States in adopting measures seeking to reduce the NO2 emissions generated by road traffic, such as a sectoral traffic prohibition, it must be recalled, as is apparent from paragraphs 117, 138 and 140 of the judgment of 21 December 2011, Commission v Austria (C‑28/09, EU:C:2011:854), that the Court has held that such a sectoral prohibition may be appropriate for attaining the objective of protection of the environment and thus justify an obstacle to the free movement of goods, provided that, in view of the objective thus pursued, no measures exist which are less restrictive of freedom of movement.47With regard to the argument that the Commission was slow to take the measures necessary for the attainment of the objectives of Directive 2008/50, it must be found that this is not capable of exonerating the French Republic from failure to fulfil its obligations under Article 13(1) of that directive, read in conjunction with Annex XI thereto.48The French Republic considers, moreover, that the anticipated effect on NO2 emissions of the standards introduced by Regulation No 715/2007 has turned out to be less significant than the size of the reductions in emissions anticipated when the limit values were set as part of the adoption of Directive 2008/50. In that regard, it must be pointed out, besides the fact that the motor vehicles which are subject to those standards are not the only cause of NO2 emissions, which the French Republic furthermore recognised, and that the EU rules applicable to the type approval of motor vehicles cannot relieve Member States of their obligation to comply with the limit values set from 1 January 2010 by Directive 2008/50, that the French Republic disregards the fact that, in accordance with the combined provisions of Articles 1(1) and 2(5) of Directive 2008/50, read in the light of recitals 1 to 3 of that directive, the limit values were set not in view of the anticipated effect of the standards introduced by Regulation No 715/2007, but on the basis of the scientific knowledge and experience of Member States so as to reflect the level judged appropriate by the European Union and Member States for the purposes of avoiding, preventing or reducing the harmful effects of air pollutants on human health and the environment as a whole.49In addition, contrary to what the French Republic claims, a possible partial downward trend highlighted by the data collected, which does not, however, result in compliance by that Member State with the limit values which it is obliged to respect, cannot invalidate the finding of failure to fulfil obligations attributable to the French Republic in that regard (judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 65).50In those circumstances, the first complaint must be upheld. Second complaint, alleging infringement of Article 23(1) of Directive 2008/50, read in conjunction with Section A of Annex XV thereto 51By its second complaint, the Commission maintains, in essence, that the French Republic has failed, since 11 June 2010, to fulfil its obligations pursuant to Article 23(1) of Directive 2008/50.52The Commission indicates, in that regard, that, while it is true that in the implementation of that provision, the Member State, in its air quality plans, has a degree of discretion in the choice of measures to be taken, those measures must, in any event, ensure that the period during which the limit values are exceeded can be kept as short as possible.53In order to determine whether an air quality plan sets out appropriate measures, so that the exceedance period can be kept as short as possible, which requires a case-by-case analysis, the Commission argues that account should be taken of six factors, deduced, in particular, from the case-law referred to in paragraphs 37 and 42 of the present judgment.54First, the exceedance of the limit values over a long period and, secondly, the estimated duration of the exceedance of the limit values in the future constitute significant indicators of a failure by the Member State concerned to fulfil its obligation under the second subparagraph of Article 23(1) of Directive 2008/50.55Thirdly, account should be taken of the absolute level of the exceedance of the limit values. The greater the difference to be made up in order to comply with the limit value set by Directive 2008/50, in particular in the most recent years, the more a lack of ambition on the part of the measures set out in the plan constitutes an indication of a breach of the obligations referred to in Article 23 of Directive 2008/50.56Fourthly, the relative changes in the annual NO2 concentration in ambient air, in particular in the most recent years, may indicate an infringement of that provision. If that trend is upward or stagnant, that also constitutes a strong indication that the measures set out in the plan are insufficient. Even a downward trend may indicate a breach of the requirements referred to in Article 23 of Directive 2008/50, where the pace of that fall, in relation to the size of the exceedance, is too slow to eliminate the exceedance in the shortest possible period.57Fifthly, the formal content of the plans, in particular whether they incorporate all of the information required by Section A of Annex XV to Directive 2008/50, should be taken into consideration. In that regard, the Commission refers to point 113 of the Opinion of Advocate General Kokott in the case which gave rise to the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), from which it is apparent that that information is of central importance.58Sixthly, the Commission also suggests that account be taken of the substantive content of the plans, in particular the appropriateness of the measures envisaged in the light of the assessment set out in those plans, the analysis of all possible measures, the geographic and sectoral coverage of the measures chosen in those plans and whether those measures are binding or merely incentivising.59The Commission recognises that, in the present case, each of France’s 12 zones which are covered by its action were formally the subject of an air quality plan at the expiry of the deadline set in the reasoned opinion, namely 16 April 2017. However, it considers that those plans are ineffective inasmuch as they have failed to bring an end to the persistent exceedances which have existed in France since 2010. Moreover, after analysing those plans and other measures adopted by the French Republic, as well as the information made available by the authorities of that Member State during the pre-litigation procedure, the Commission, criticising those authorities for their passive attitude and for adopting non-binding measures, claims that the plans at issue do not set out appropriate measures, so that the period during which the NO2 limit values are exceeded can be kept ‘as short as possible’. In addition, none of those plans mentions the need for structural changes.60Finally, the Commission argues that various legal acts adopted by the French Republic after 16 April 2017 – the deadline set by the reasoned opinion – confirm that Article 23 of Directive 2008/50 has been infringed.61The Commission indicates that, on 10 May 2017, the French Republic did, indeed, adopt a plan for the reduction of emissions of atmospheric pollutants, which sets out a number of actions to reduce emissions in all sectors and envisages, in particular, measures to reduce emissions linked to road transport, such as the convergence of the taxation of petrol and diesel, or the promotion of the purchase of clean vehicles. However, it is apparent from that plan that compliance with the limit values will not be achieved until 2030 at the earliest.62In that context, the Commission recalls that the Conseil d’État (Council of State, France) found, in a judgment of 12 July 2017, that the French legislation transposing Articles 13 and 23 of Directive 2008/50 had been infringed in 16 of France’s zones.63Moreover, the Commission maintains that it is apparent from the information provided by the French Republic in its letter of 8 February 2018 that, in 2020, 10 measuring stations will still be showing non-compliance, with that figure falling to 3 in 2030, but that no indication is given of the location of those stations. That confirms, in any event, the persistent failure by that Member State, beyond the deadline set in the reasoned opinion, to fulfil its obligations under Article 23 of Directive 2008/50.64The Commission also argues that a list of additional national measures, in force or announced, was made available to it by the French authorities on 20 April 2018. Nevertheless, no assessment was provided of the impact of those measures and no indication was given of the date by which an end would be brought to the exceedance of the NO2 limit values throughout the 12 zones covered by the present action.65Moreover, according to the Commission, the argument put forward by the French Republic, based on the existence of structural difficulties, is not supported by any case-by-case analysis for any of the 12 zones covered by the present action. As it is, in reality, a general argument, it should be rejected as unproven from a factual perspective.66The Commission also argues that an analysis of the facts presented by the French Republic in its defence confirms that none of the zones at issue is the subject of a plan setting out appropriate measures, so that the period during which the limit values are exceeded can be kept as short as possible. Moreover, the evidence put forward by the French Government relates mostly to actions – which are being envisaged well after the expiry of the deadline for responding to the reasoned opinion – the implementation of which is sometimes planned for more than 15 years after the entry into force of the NO2 limit values.67In addition, the Commission rejects the argument that only a small section of the population is affected by the exceedances of the NO2 limit values, as such an argument is not relevant to Directive 2008/50, which does not contain de minimis rules.68The French Republic invokes structural difficulties encountered in the implementation of the measures taken so that the period during which the NO2 limit values are exceeded can be kept as short as possible, which have hampered the effectiveness of those measures.69The French Republic also argues that the Commission misinterprets Article 23(1) of Directive 2008/50, read in conjunction with Annex XV to that directive.70In that regard, the French Republic disputes the manner in which the Commission relied on the Court’s case-law on the exceedance of the limit values for PM10 in ambient air in order to assess the appropriateness of the air quality plans to ensure that the period in which the NO2 limit values is exceeded can be kept as short as possible, in accordance with Article 23(1) of Directive 2008/50, on the ground that the constraints on measures to tackle emissions of those two pollutants are quite distinct. It claims, in particular, that the Commission failed to take into account, in the necessary case-by-case examination of the appropriateness of the measures taken in view of the requirement that the duration of the exceedance be kept as short as possible, the specific characteristics of NO2 emissions, the location of the exceedances in urban areas affected by traffic and the structural constraints specific to NO2 emissions, so that the persistence of the exceedances of the NO2 limit values since 1 January 2010 does not in itself, and contrary to what the Commission asserts, demonstrate the inappropriateness of those measures.71The French Republic emphasises, moreover, that the plans at issue, which, contrary to the Commission’s opinion, contain proactive and appropriate measures, some of which are binding, have resulted in an overall and very significant improvement in the air quality in France. That improvement is ongoing, even though it has not yet resulted in the elimination of the exceedances of the NO2 limit values pointed out by the Commission in the present action.72In so far as the Commission suggests that the air quality plans must indicate the date by which compliance with the limit values set in Annex XI to Directive 2008/50 will be achieved, the French Republic points out that none of the provisions of that directive explicitly require the authorities of Member States to indicate such a date in their plans. Annex XV to that directive provides that the information which must be included in local, regional or national air quality plans for improvement in ambient air quality must include the ‘timetable for implementation’ and the ‘estimate of the improvement of air quality planned and of the expected time required to attain these objectives’. However, that does not mean that those plans must indicate the date by which compliance with the limit values will be achieved. The phrase ‘to attain these objectives’ refers to the objectives of improving ambient air quality set in those plans, and not to compliance with the limit values set by that annex.73The French Republic argues that the appropriateness of the air quality plans must be examined on a case-by-case basis in view of the specific local constraints to be overcome in each of the 12 zones or agglomerations at issue and, in that regard, gives an overview of some of the constraints specific to each of the zones and the most recent measures implemented to bring an end to the exceedances of the NO2 limit values. It thus concludes that it has not failed to fulfil its obligations under Article 23(1) of Directive 2008/50.74Under the second subparagraph of Article 23(1) of Directive 2008/50, where there are exceedances of the limit values for NO2 for which the attainment deadline has already expired, the Member State concerned is required to establish an air quality plan which meets certain requirements.75Thus, that plan must set out appropriate measures, so that the exceedance period can be kept as short as possible, and may additionally include specific measures aimed at the protection of sensitive population groups, including children. In addition, according to the third subparagraph of Article 23(1) of Directive 2008/50, that plan must incorporate at least the information listed in Section A of Annex XV to that directive and may include measures pursuant to Article 24 of that directive. That plan must be communicated to the Commission without delay, but no later than two years after the end of the year in which the first exceedance was observed.76According to the Court’s case-law, Article 23(1) of Directive 2008/50 has a general scope, given that it applies, without being limited in time, to breaches of any pollutant limit value established by that directive, after the deadline fixed for its application, whether that deadline is fixed by Directive 2008/50 or by the Commission under Article 22 of the directive (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 104).77In that context, with regard to the French Republic’s argument relating to the case-law laid down by the Court in the judgments of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), and of 22 February 2018, Commission v Poland (C‑336/16, EU:C:2018:94), on the exceedance of the limit values for PM10 in ambient air, in order to assess the appropriateness of air quality plans to ensure that the period during which the NO2 limit values are exceeded can be kept as short as possible, it must be pointed out that the wording of Articles 13 and 23 of Directive 2008/50 refers indiscriminately to all ambient air pollutants to which that directive applies. That case-law can therefore be applied, as a framework for analysis, to assess whether a Member State has complied with its obligations arising under Article 23 of that directive with regard to a pollutant other than particulate matter PM10, provided that that pollutant is covered by that directive.78It must also be noted that that provision establishes a direct link between, first, the exceedance of the limit values for NO2, as laid down in the provisions of Article 13(1) of Directive 2008/50, in conjunction with those of Annex XI thereto, and, second, the drawing up of air quality plans (see, to that effect, judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 83, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 76).79Those plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 106, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 93).80Therefore, the fact that a Member State exceeds the limit values for NO2 in ambient air is not in itself sufficient to find that that Member State has failed to fulfil its obligations under the second subparagraph of Article 23(1) of Directive 2008/50 (see, by analogy, judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 107, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 94).81It follows from that provision that while Member States have a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values are exceeded is as short as possible (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 109, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 95).82In those circumstances, it must be ascertained, on the basis of a case-by-case analysis, whether the plans drawn up by the Member State concerned comply with the second subparagraph of Article 23(1) of Directive 2008/50 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 108).83In this case, the French Republic maintains that the timescales indicated with regard to the measures which it took in the air quality plans which it established are adapted to the scale of the structural changes necessary to bring an end to the exceedances of the limit values for NO2, highlighting, in particular, on the one hand, the difficulties arising from the significance and the costs of the investments to be carried out and, on the other, the constraints on tackling NO2 emissions, such as the increase in the number of vehicles due to, among other things, population growth, the fact that the measures necessary for the modernisation of the vehicle fleet can only be implemented over time, the difficulty of making changes to major roads or the sensitivity of public opinion with regard to certain measures such as, in particular, an increase in tax on fuel and the continuing use of motor vehicles.84It must be observed, in that context, that it was those factors of a general nature that the French Republic mentioned in those plans, without providing further details or carrying out a more in-depth analysis on a case-by-case basis for each of the 12 zones covered by the Commission’s action.85Moreover, it must be recalled that the Court has already held that structural difficulties, arising from the socio-economic and financial challenges of major investments which are to be carried out, were not exceptional and were not such as to rule out the possibility of having set shorter periods (see, by analogy, judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 101).86The existence of such structural difficulties, including those linked to constraints on tackling NO2 emissions, in particular in circumstances where the exceedances noted are located exclusively around major roads, could nevertheless be relevant, in the context of the balance referred to in paragraph 77 of the present judgment, for finding that the exceedance period has been kept as short as possible, in so far as the Member State has taken all appropriate measures to that effect.87However, it must be pointed out that, in its case-by-case examination of the various zones and agglomerations covered by the present action, the French Republic, although it demonstrated a certain reduction in the level of exceedance in some of the zones and agglomerations concerned, systematically mentioned measures which, on the one hand, fail to provide details of the locations concerned, their timelines and their quantified impact and, on the other, were, for the most part, adopted or envisaged well after the expiry of the deadline for responding to the reasoned opinion or are currently being adopted or planned, sometimes providing for an implementation period of more than 15 years after the entry into force of the limit values for NO2.88It must be recalled, in that context, that the Member State concerned has been obliged to establish air quality plans in the event of exceedances of the limit values for NO2 in ambient air since 11 June 2010. As is apparent from the case file submitted to the Court, exceedances of the limit values had already been noted in France at that date. Consequently, with effect from that date by which the French Republic was required to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2008/50, in accordance with Article 33(1) thereof, that Member State was required to adopt and put into effect, as quickly as possible, appropriate measures, pursuant to Article 23(1) of that directive.89In the circumstances referred to in paragraph 87 of the present judgment, it must be pointed out that the French Republic has manifestly failed to adopt, in a timely manner, appropriate measures to ensure that the exceedance period can be kept as short as possible. Thus, the exceedance of the limit values at issue for seven consecutive years in that Member State remains systematic and persistent, despite its obligation to take all appropriate and effective measures to comply with the requirement that the exceedance period be kept as short as possible.90Such a situation proves of itself, without the need to examine in more detail the content of the air quality plans drawn up by the French Republic, that in the present case that Member State has not implemented appropriate and effective measures to keep the exceedance period for limit values for NO2‘as short as possible’, within the meaning of the second subparagraph of Article 23(1) of Directive 2008/50 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 117).91It follows that the arguments put forward by the French Republic cannot, in themselves, justify such long periods of time for bringing an end to those exceedances in view of the requirement seeking to ensure that the exceedance period is kept as short as possible.92In those circumstances, the second complaint invoked by the Commission must be upheld.93In the light of all the foregoing considerations, it must be found:that, by systematically and persistently exceeding the annual limit value for NO2 since 1 January 2010 in 12 French agglomerations and air quality zones, namely Marseille (FR03A02), Toulon (FR03A03), Paris (FR04A01), Auvergne-Clermont-Ferrand (FR07A01), Montpellier (FR08A01), Toulouse Midi-Pyrénées (FR12A01), ZUR Reims Champagne-Ardenne (FR14N10), Grenoble Rhône-Alpes (FR15A01), Strasbourg (FR16A02), Lyon Rhône-Alpes (FR20A01), ZUR Vallée de l’Arve Rhône-Alpes (FR20N10) and Nice (FR24A01), and by systematically and persistently exceeding the hourly limit value for NO2 since 1 January 2010 in 2 agglomerations and air quality zones, namely Paris (FR04A01) and Lyon Rhône-Alpes (FR20A01), the French Republic has, since that date, continued to fail to fulfil its obligations under Article 13(1) of Directive 2008/50, read in conjunction with Annex XI to that directive, since the coming into force of the limit values in 2010, andthat the French Republic has failed, since 11 June 2010, to fulfil its obligations under Article 23(1) of that directive, read in conjunction with Annex XV to that directive, and in particular the obligation, laid down in the second subparagraph of Article 23(1) of that directive, to ensure that the exceedance period is kept as short as possible. Costs 94Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the French Republic and the latter has essentially been unsuccessful, the French Republic must be ordered to pay the costs.On those grounds, the Court (Seventh Chamber) hereby: 1. Declares that, by systematically and persistently exceeding the annual limit value for nitrogen dioxide (NO2) since 1 January 2010 in 12 French agglomerations and air quality zones, namely Marseille (FR03A02), Toulon (FR03A03), Paris (FR04A01), Auvergne-Clermont-Ferrand (FR07A01), Montpellier (FR08A01), Toulouse Midi-Pyrénées (FR12A01), zone urbaine régionale (Regional urban area, ‘ZUR’) Reims Champagne-Ardenne (FR14N10), Grenoble Rhône-Alpes (FR15A01), Strasbourg (FR16A02), Lyon Rhône-Alpes (FR20A01), ZUR Vallée de l’Arve Rhône-Alpes (FR20N10) and Nice (FR24A01), and by systematically and persistently exceeding the hourly limit value for NO2 since 1 January 2010 in 2 agglomerations and air quality zones, namely Paris (FR04A01) and Lyon Rhône-Alpes (FR20A01), the French Republic has, since that date, continued to fail to fulfil its obligations under Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with Annex XI to that directive, since the coming into force of the limit values in 2010; Declares that the French Republic has failed, since 11 June 2010, to fulfil its obligations under Article 23(1) of that directive, read in conjunction with Annex XV to that directive, and in particular the obligation, laid down in the second subparagraph of Article 23(1) of that directive, to ensure that the exceedance period is kept as short as possible; 2. Orders the French Republic to pay the costs. [Signatures]( *1 ) Language of the case: French. | d61f9-6542e6d-49e9 | EN |
In loan contracts concluded in Poland and indexed to a foreign currency, unfair terms relating to the difference in exchange rates cannot be replaced by general provisions of Polish civil law | JUDGMENT OF THE COURT (Third Chamber)3 October 2019 (*)(Reference for a preliminary ruling — Directive 93/13/EEC — Consumer contracts — Unfair terms — Mortgage loan indexed to a foreign currency — Term relating to arrangement of the exchange rate between the currencies — Effects of a declaration that a term is unfair — Whether it is possible for the court to remedy unfair terms by having recourse to general terms of civil law — Assessment of the consumer’s interests — Continued existence of the contract without unfair terms)In Case C‑260/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), made by decision of 26 February 2018, received at the Court on 16 April 2018, in the proceedings Kamil Dziubak, Justyna Dziubak v Raiffeisen Bank International AG, carrying on its activities in Poland in the form of a local branch operating under the name Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA,THE COURT (Third Chamber),composed of A. Prechal (Rapporteur), President of the Chamber, F. Biltgen, J. Malenovský, C.G. Fernlund and L.S. Rossi, Judges,Advocate General: G. Pitruzzella,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Mr and Ms Dziubak, by A. Plejewska, adwokat,– Raiffeisen Bank International AG, carrying on its activities in Poland in the form of a local branch operating under the name Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA, by R. Cebeliński and I. Stolarski, radcowie prawni,– the Polish Government, by B. Majczyna, acting as Agent,– the United Kingdom Government, by S. Brandon, acting as Agent, assisted by A. Howard, Barrister,– the European Commission, by N. Ruiz García and M. Siekierzyńska, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 14 May 2019,gives the following Judgment 1 This request for a preliminary ruling concerns the interpretation of Article 1(2), Article 4, Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29). 2 The request has been made in the context of proceedings between Mr Kamil Dziubak and Ms Justyna Dziubak (‘the borrowers’) and Raiffeisen Bank International AG, carrying on its activities in Poland in the form of a local branch operating under the name Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA (‘Raiffeisen’) concerning the allegedly unfair terms relating to the indexing mechanism used in a mortgage loan agreement indexed to a foreign currency. Legal context European Union law 3 The 13th recital of Directive 93/13 states:‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording ‘mandatory statutory or regulatory provisions’ in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established;’. 4 Article 1(2) of that directive provides:‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’ 5 Article 4 of the Directive provides:‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’ 6 Under Article 6(1) of Directive 93/13:‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’ 7 Article 7(1) of that directive is worded as follows:‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’ Polish law 8 Article 56 of the Kodeks cywilny (Civil Code) provides:‘A legal transaction shall give rise not only to the effects expressed therein, but also to those that arise from the Law, from the rules of social conduct and from established customs.’ 9 Article 65 of the Civil Code provides:‘1. A declaration of intent should be interpreted in accordance with the principles of social conduct and with established customs, taking into account the circumstances in which the intent was expressed.2. Regard should be had to the contracts to determine the common intent of the parties and the specified objective of those contracts rather than focussing on the literal meaning of the terms used.’ 10 Article 3531 of the Civil Code reads as follows:‘Contracting parties may arrange their legal relationship at their discretion as long as the substance or purpose of the contract is not contrary to the properties (nature) of the relationship, the Law or the rules of social conduct.’ 11 Article 354 of the Civil Code states:‘1. A debtor should perform his obligation in accordance with its substance and in a manner complying with its social and economic purpose and the rules of social conduct, and if there are established customs in this respect, also in a manner complying with those customs.2. A creditor shall cooperate in the same manner in performing the obligation.’ 12 Under Article 3851 of the Civil Code:‘1. The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on the consumer if his rights and obligations are set forth in a way that is contrary to good practice and grossly infringes his interests (unlawful terms). This shall not apply to terms setting out the principal obligations to be performed by the parties, including price or remuneration, so long as they are worded clearly.2. If a contractual term is not binding on the consumer pursuant to paragraph 1, the contract shall otherwise continue to be binding on the parties.3. The terms of a contract which have not been individually negotiated are those over the content of which the consumer had no actual influence. This shall refer in particular to contractual terms taken from a standard contract proposed to a consumer by a contracting party.…’ 13 Article 3852 of the Civil Code provides:‘The compliance of contractual terms with good practice shall be assessed according to the state of affairs at the time of conclusion of the contract, taking into account its content, the circumstances in which it was concluded and also other contracts connected with the contract which contains the provisions being assessed.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 14 On 14 November 2008, the borrowers concluded, as consumers, a contract for a mortgage loan with Raiffeisen. That contract was denominated in Polish zloty (PLN), but indexed to a foreign currency, namely the Swiss franc (CHF); the term of that loan was 480 months (40 years). 15 The rules for indexing the loan to the currency at issue were specified in the mortgage loan regulations used by Raiffeisen and incorporated into the agreement. 16 Paragraph 7(4) of those regulations essentially provides that the loan at issue in the main proceedings is disbursed in PLN at an exchange rate not lower than the PLN-CHF buying rate in accordance with the exchange rate table in force at the bank at the time the funds were disbursed; the loan debt balance is expressed in CHF at that rate. Under Paragraph 9(2) of the same regulations, the monthly loan repayments are expressed in CHF and on each subsequent loan repayment date are debited to a bank account in PLN, this time at the PLN-CHF selling rate in accordance with the exchange rate table. 17 The interest rate on the loan at issue in the main proceedings was fixed at a variable rate and set as the sum of the 3-month LIBOR CHF benchmark and Raiffeisen’s fixed margin. 18 The borrowers brought an action before the referring court seeking, primarily, a declaration that the loan contract at issue in the main proceedings is invalid on the ground of the purported unfairness of the terms concerning the indexing mechanism referred to in paragraph 16 of this judgment. In that regard, they claim that those terms are unlawful in that they allow Raiffeisen to arrange the exchange rate at its discretion and arbitrarily. Consequently, that bank unilaterally fixes the outstanding balance of that loan expressed in CHF as well as the amount of the monthly repayments expressed in PLN. Once those terms are removed, it is impossible to arrange a correct exchange rate, such that the contract cannot continue in existence. 19 In the alternative, they claim that the loan contract at issue in the main proceedings can be performed without those terms on the basis of the loan amount stipulated in PLN and the interest rate provided for in that contract based on the variable LIBOR and the bank’s fixed margin. 20 Whilst denying that the terms concerned are unfair, Raiffeisen contends that, once any of those terms are removed, the parties remain bound by the other provisions of the loan contract at issue in the main proceedings. In place of the terms removed, and given the absence of supplementary rules stipulating the manner in which the exchange rate is to be set, the general principles provided for in Articles 56, 65 and 354 of the Civil Code should be applied. 21 In addition, that bank contests that the removal of the terms can have the effect of the loan contract at issue in the main proceedings being performed as a loan expressed in PLN, applying to it the interest rate determined on the basis of the LIBOR. In its view, use of the LIBOR CHF as agreed by the parties, rather than the higher interest rate laid down for PLN, namely the WIBOR, was the result solely of the inclusion of the indexing mechanism provided for in the terms in question. 22 The referring court observes that loan contracts indexed to a foreign currency, such as that in question, have developed in practice. The concept of such a loan contract was introduced into Polish legislation only in the course of 2011; however, that legislation simply provides that the specific rules governing, inter alia, the conversion mechanism must be defined in the contract. 23 With regard to the terms laid down in the loan agreement in question, the referring court clarifies that it takes as starting point the fact that those terms are unfair and are therefore not binding on the borrowers. 24 That court observes that, without those terms, it is impossible to determine the exchange rate and therefore to perform the loan agreement at issue. In this regard, it asks, first of all, with reference to the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), whether, in the event that annulling that contract would be unfavourable to the consumer, the gap in that contract may be filled on the basis of national provisions not of supplementary law but of a general nature, which refer to rules of social conduct and established customs, such as those provided for in Articles 56 and 354 of the Civil Code. Although, on the basis of those rules and established customs, the view may be taken that the relevant exchange rate is that applied by Raiffeisen, as follows from the contested terms, it could likewise be accepted, in the referring court’s opinion, that the relevant rate is the market exchange rate or the rate set by the central bank. 25 If that question is answered in the negative, the referring court further asks whether, if the court takes the view that annulling a contract would have unfavourable effects for the consumer, it is open to it to uphold the unfair term contained in that contract, even though the consumer has not expressed his will to be bound by that term. 26 Next, the referring court observes that, in order to establish whether annulling a contract produces unfavourable effects for the consumer, it is necessary to determine the criteria for assessing those effects and, in particular, the appropriate point in time for assessing them. The referring court also asks whether it may carry out the assessment of the effects produced by the annulment of the contract concerned contrary to the wishes of the consumer, that is to say whether the consumer may object to that contract being supplemented or to the manner in which that contract is performed being determined on the basis of rules containing general terms where, contrary to the consumer’s opinion, the court takes the view that it may be more favourable for that consumer for the contract to be supplemented rather than annulled. 27 Finally, the referring court asks about the interpretation of the words ‘if it is capable of continuing in existence without the unfair terms’, contained in Article 6(1) of Directive 93/13. The court points out that the continuation of the loan agreement at issue in the main proceedings in a modified form such as that described in paragraph 19 of this judgment, even if such continuation is not objectively impossible, may be at odds with the general principles limiting the freedom of contract laid down in Polish law and, in particular, in Article 3531 of the Civil Code, since there can be no doubt that the indexing of that loan is the sole basis of the interest rate based on the LIBOR CHF rate as agreed by the parties when the contract was concluded. 28 In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1) Do Articles 1(2) and 6(1) of [Directive 93/13] make it possible — if the determination of certain contractual provisions which stipulate the manner in which an obligation is to be performed by the parties (its amount) as unfair were to result in the contract being annulled in its entirety, which would be unfavourable to the consumer — to fill gaps in the contract not pursuant to a supplementary provision of law which explicitly replaces the unfair term, but rather pursuant to provisions of national law which provide for supplementing the effects of a legal transaction as expressed in its substance to include the effects arising from the principles of equity (rules of social conduct) or established customs?(2) Should the possible assessment of the consequences for the consumer of the contract being annulled in its entirety be conducted on the basis of the circumstances existing at the time of its conclusion or on the basis of those existing at the time when the dispute arose between the parties concerning the effectiveness of the term in question (at the time when the consumer claimed that the term was unfair), and what relevance attaches to the position taken by the consumer in such a dispute?(3) Is it possible to uphold provisions which are unfair contractual terms within the meaning of Directive [93/13] if the adoption of this solution would be objectively beneficial to the consumer at the time when the dispute is being settled?(4) Could declaring certain contractual provisions stipulating the amount and manner of performance of an obligation by the parties to be unfair result, on the basis of Article 6(1) of Directive 93/13, in a situation in which the form of the legal relationship determined on the basis of the contract, except for the effects of unfair terms, may differ from that intended by the parties with respect to the parties’ main obligation; without limitation, does declaring a contractual provision to be unfair mean that other contractual provisions related to the consumer’s main obligation which have not been claimed to be unfair may continue to apply where the form of those provisions (their incorporation in the contract) was inextricably linked to the provision challenged by the consumer?’ Procedure before the Court 29 By document lodged at the Court Registry on 24 June 2019, Raiffeisen applied for the oral part of the procedure to be reopened. By document lodged at the Court Registry on 4 September 2019, that party set out the grounds underlying its application for reopening. 30 In that regard, Raiffeisen contends, in essence, that the Advocate General wrongly assumed in his Opinion, first, that Polish law does not contain any supplementary legal rule directly laying down the rules of currency conversion, even though such a rule was inserted into Article 358(2) of the Civil Code; next, that the national court is being called upon to ‘shape’ the contract and to engage in ‘interpretation or creativity’ in determining the content of the contract, even though in Poland the practice in force consists in applying the central bank’s average rate; and, finally, that the consequence of annulling a loan contract would be that the outstanding balance of the loan would become payable forthwith, even though Polish law provides for other kinds of consequences of annulling such a contract which are much more onerous for the consumer. This party also states that, if it were accepted, as the Advocate General suggests in point 41 of his Opinion, that a loan contract indexed to CHF, such as that in the main proceedings, can be transformed into a contract which would no longer be indexed to that currency whilst remaining subject to the interest rate applicable to that currency, this would give rise to disproportionately negative consequences for the Polish banking sector. 31 Under Article 83 of the Rules of Procedure of the Court of Justice, the Court may, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union. 32 In the present case, the Court considers, after hearing the Advocate General, that it has all the information necessary to give a ruling. It observes, in this regard, that the information put forward by Raiffeisen does not constitute new facts which are of such a nature as to be decisive factors for the decision of the Court within the meaning of Article 83 of the Rules of Procedure. In so far as it concerns the interpretation of Polish law, that information could at the very most be relevant for the purposes of the decision to be made by the referring court. It is, however, irrelevant in the light of the answers to be given to the questions as submitted by that court. In addition, the information relating to the disproportionality of the transformation of the contract as described by Raiffeisen merely expands upon the written observations which it had already submitted. 33 In those circumstances, there is no need to reopen the oral part of the procedure. The questions referred for a preliminary ruling The fourth question 34 By its fourth question, which should be answered first, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to modify the nature of the main subject matter of the contract. 35 In that regard, it follows from the order for reference that the terms contested by the borrowers concern the mechanism whereby the loan at issue in the main proceedings is indexed to the currency concerned in such a way that the borrowers must bear the costs associated with the exchange difference between the buying rate of that currency used for the disbursement of the funds and the selling rate of that currency used for the monthly repayments. Having found those terms to be unfair, the referring court asks whether it is possible for the loan contract at issue in the main proceedings to continue in existence without those terms, in so far as the performance of that contract, once the indexing mechanism chosen is removed, would amount to performing a different type of contract from that concluded by the parties. 36 According to that court, the loan contract at issue in the main proceedings would then no longer be indexed to that currency, whereas the interest rate would remain based on the (lower) rate of that same currency. Such modification, which affects the main subject matter of that contract, may be at odds with the general principles limiting the freedom of contract laid down in Polish law and, in particular, in Article 3531 of the Civil Code. 37 It should be recalled, in this regard, that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. As regards such a position of weakness, that directive requires Member States to provide for a mechanism ensuring that every contractual term not individually negotiated may be reviewed in order to determine whether it is unfair (see, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraphs 49 and 50). 38 In that context, Article 6(1) of Directive 93/13 provides that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer and that the contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms. 39 According to settled case-law, the purpose of that provision, and in particular of its second part, is not to cancel all contracts containing unfair terms but to substitute for the formal balance established by the contract between the rights and obligations of the parties real balance re-establishing equality between them, it being specified that the contract at issue must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms. Provided that the latter condition is satisfied, the contract at issue may, pursuant to Article 6(1) of Directive 93/13, be continued as long as, in accordance with the rules of domestic law, such continuity of the contract is legally possible without the unfair terms, which is to be determined objectively (see, to that effect, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraphs 40 and 51, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 57). 40 It follows that the second part of Article 6(1) of Directive 93/13 does not itself set out the criteria governing the possibility of a contract continuing in existence without the unfair terms, but rather leaves it to the national legal order to determine those criteria in a manner consistent with EU law, as the Advocate General likewise observed, in essence, in point 54 of his Opinion. It is thus in principle in the light of the criteria laid down in national law that it is necessary to examine, in a specific situation, the possibility of upholding a contract some terms of which have been declared invalid. 41 With regard to the limits drawn by EU law and which must be respected, in this context, by national law, it should be made clear, inter alia, that, in accordance with the objective approach referred to in paragraph 39 of this judgment, the situation of one of the parties to the contract cannot be regarded, under national law, as the decisive criterion determining the fate of the contract (see, to that effect, judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 32). 42 In the dispute in the main proceedings, the referring court appears not to rule out the possibility, after the straightforward removal of the terms relating to the exchange difference, of the loan contract at issue in the main proceedings continuing to exist, in principle, in a modified form, as described in paragraph 36 of this judgment, but rather to doubt whether its domestic law allows that contract to be so modified. 43 It follows from the considerations contained in paragraphs 40 and 41 of this judgment that where a national court considers that, pursuant to the relevant provisions of its domestic law, it is impossible to uphold a contract without the unfair terms which it contains, Article 6(1) of Directive 93/13 does not in principle preclude that contract from being annulled. 44 This applies a fortiori, in circumstances such as those at issue in the main proceedings, where it appears to follow from the information provided by the referring court, as summarised in paragraphs 35 and 36 of this judgment, that annulling the terms contested by the borrowers would lead not only to the removal of the indexing mechanism and the exchange difference but also, indirectly, to the disappearance of the exchange rate risk, which is directly linked to the indexing of the loan at issue in the main proceedings to a currency. The Court has already held that terms relating to the exchange rate risk define the main subject matter of a loan contract such as that at issue in the main proceedings, such that the objective possibility of continuing the loan agreement at issue in the main proceedings appears, in those circumstances, uncertain (see, to that effect, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraphs 48 and 52 and the case-law cited). 45 In the light of the foregoing considerations, the answer to the fourth question is that Article 6(1) of Directive 93/13 must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract. The second question 46 By its second question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), must be assessed having regard to the circumstances existing at the time of that contract’s conclusion rather than those existing or foreseeable at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor. 47 In that regard, as follows from the answer to the fourth question, if the referring court takes the view, in accordance with its domestic law, that it is impossible to continue the loan contract concerned following the removal of the unfair terms which it contains, that contract cannot in principle continue in existence, within the meaning of Article 6(1) of Directive 93/13, and must therefore be annulled. 48 However, the Court has found that Article 6(1) of that directive does not preclude the national court from substituting for an unfair term a supplementary provision of national law or one which is applicable where the parties to the contract at issue so agree; that possibility is, however, limited to situations in which the removal of that unfair term would require the court to annul that contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, with the result that the consumer would thus be penalised (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 80 to 84, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 64). 49 With regard, in the first place, to the time at which those consequences must be assessed, it must be recalled that that possibility of substitution falls wholly within the scope of the objective of Article 6(1) of Directive 93/13 which consists, as observed in paragraph 39 of this judgment, in protecting the consumer by re-establishing equality between him and the seller or supplier (see, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 57). 50 Since that possibility of substitution serves to ensure that consumer protection is implemented, by safeguarding the consumer’s interests against the potentially unfavourable consequences which may follow from the contract at issue being annulled in its entirety, it is clear that those consequences must necessarily be assessed in relation to the circumstances existing or foreseeable at the time when the dispute arose. 51 Consumer protection can be assured only if account is taken of his actual and therefore current interests, and not his interests in the circumstances existing when the contract at issue was concluded, as the Advocate General also observed, in essence, in points 62 and 63 of his Opinion. Similarly, the consequences against which those interests must be protected are those which would actually occur, in the circumstances existing or foreseeable at the time when the dispute arose, if the court were to annul that contract, and not those which would result from the annulment of the contract on the date of its conclusion. 52 That finding is not called into question by the fact asserted by Raiffeisen that Article 4(1) of Directive 93/13 links the assessment of the unfairness of a contractual term to ‘the time of conclusion of the contract’, to all the circumstances attending its conclusion, since the purpose of this assessment is fundamentally different from the assessment of the consequences resulting from a contract being annulled. 53 In the second place, as regards the significance to be attributed to the wishes expressed by the consumer in this regard, it should be recalled that the Court has made clear, in connection with the obligation on the national court to remove, if necessary of its own motion, unfair terms pursuant to Article 6(1) of Directive 93/13, that that court is not required to exclude the possibility that the term in question may be applicable if the consumer, after having been informed of it by the court, does not intend to assert its unfair or non-binding status, thus giving his free and informed consent to the term in question (see, to that effect, judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraphs 23, 27 and 35 and the case-law cited). 54 Thus, Directive 93/13 does not go as far as making the system of protection against the use of unfair terms by suppliers or sellers, a system which it introduced for the benefit of consumers, mandatory. Accordingly, where the consumer prefers not to rely on it, that system of protection is not applied. 55 Similarly, since the system of protection against unfair terms does not apply if the consumer objects to it, that consumer must a fortiori be entitled to object to being protected, under that same system, against the unfavourable consequences caused by the contract being annulled in its entirety where he does not wish to rely on that protection. 56 In the light of the foregoing considerations, the answer to the second question is that Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor. The first question 57 By its first question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs. 58 In this regard, as observed in paragraph 48 of this judgment, the Court has interpreted Article 6(1) of Directive 93/13 as not precluding the national court, when a contract being annulled in its entirety would expose the consumer to particularly adverse consequences, from remedying the invalidity of the unfair terms contained in that contract by substituting for them a supplementary provision of national law or one which is applicable where the parties to the contract so agree. 59 It should be noted that that possibility of substitution, which derogates from the general rule that the contract at issue can remain binding on the parties only if it can continue in existence without the unfair terms that it contains, is limited to supplementary provisions of national law or those which are applicable where the parties so agree and is based, in particular, on the ground that such provisions are presumed not to contain unfair terms (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 81, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 59). 60 Those provisions are meant to reflect the balance that the legislature intended to establish between all the rights and obligations of the parties to certain contracts in cases where the parties have not departed from a standard rule provided for by the national legislature in relation to the contracts concerned, or indeed have expressly opted for a rule introduced by the national legislature to that end to be applicable. 61 However, in the present case, even assuming that provisions such as those to which the national court refers, given their general nature and the need to make them effective, can in practice replace the unfair terms concerned by the mere act of substitution by the national court, they do not appear, in any event, to have been subject to a specific assessment by the legislature with a view to establishing that balance, such that those provisions are not covered by the presumption set out in paragraph 59 of this judgment that they are not unfair, as the Advocate General likewise observed, in essence, in point 73 of his Opinion. 62 In the light of the foregoing, the answer to the first question is that Article 6(1) of Directive 93/13 must be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract from being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree. The third question 63 By its third question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer. 64 As a preliminary point, it must be clarified that this question concerns the situation in which the unfair terms could not be replaced as set out in paragraph 48 of this judgment. 65 It should be recalled that the first clause of Article 6(1) of Directive 93/13 requires Member States to lay down that unfair terms ‘shall … not be binding on the consumer’. 66 The Court has interpreted that provision as meaning that, where the national court considers a contractual term to be unfair, it is required not to apply it, an obligation from which there is no derogation unless the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status, thus giving his free and informed consent to the term in question, as observed in paragraph 53 of this judgment. 67 Accordingly, where the consumer does not consent to, or even expressly objects to, the unfair terms concerned being upheld, as appears to be the case in the main proceedings, that exception is not applicable. 68 In the light of the foregoing, the answer to the third question is that Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld. Costs 69 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules:1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract. 2. Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor. 3. Article 6(1) of Directive 93/13 must be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract from being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree. 4. Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld. [Signatures] * Language of the case: Polish. | 033c1-ec64905-49b6 | EN |
EU law does not preclude a host provider such as Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal | 3 October 2019 ( *1 )(Reference for a preliminary ruling — Information society — Free movement of services — Directive 2000/31/EC — Liability of intermediary service providers — Article 14(1) and (3) — Hosting services provider — Possibility of requiring the service provider to terminate or prevent an infringement — Article 18(1) — Personal, material and territorial limits on the scope of an injunction — Article 15(1) — No general obligation to monitor)In Case C‑18/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 25 October 2017, received at the Court on 10 January 2018, in the proceedings Eva Glawischnig-Piesczek v Facebook Ireland Limited, THE COURT (Third Chamber),composed of A. Prechal, President of the Chamber, F. Biltgen, J. Malenovský (Rapporteur), C.G. Fernlund and L.S. Rossi, Judges,Advocate General: M. Szpunar,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 13 February 2019,after considering the observations submitted on behalf of:–Ms Glawischnig-Piesczek, by M. Windhager and W. Niklfeld, Rechtsanwälte,Facebook Ireland Limited, by G. Kresbach, K. Struckmann and A. Tauchen, Rechtsanwälte,the Austrian Government, by G. Hesse, G. Kunnert and A. Jurgutyte-Ruez, acting as Agents,the Latvian Government, by I. Kucina, E. Petrocka-Petrovska and V. Soņeca, acting as Agents,the Portuguese Government, by L. Inez Fernandes and M. Figueiredo, acting as Agents, and T. Rendas, Legal Adviser.the Finnish Government, by J. Heliskoski, acting as Agent,the European Commission, by G. Braun, F. Wilman, S.L. Kalėda, and P. Costa de Oliveira, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 June 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).2The request has been made in proceedings between Ms Eva Glawischnig-Piesczek and Facebook Ireland Limited whose registered address is in Ireland, concerning the publication on the page of a hosted user on the social network Facebook of a message containing statements harmful to the reputation of Ms Glawischnig-Piesczek. Legal context EU law 3Recitals 6, 7, 9, 10, 40, 41, 45 to 48, 52, 58 and 60 of Directive 2000/31 state:‘(6)… by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty.(7)In order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market.…(9)The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, [signed in Rome on 4 November 1950,] which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.(10)In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market; where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as electronic commerce is concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular the protection of minors and human dignity, consumer protection and the protection of public health; …(40)Both existing and emerging disparities in Member States’ legislation and case-law concerning liability of service providers acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development of cross-border services and producing distortions of competition; service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities; this Directive should constitute the appropriate basis for the development of rapid and reliable procedures for removing and disabling access to illegal information; …(41)This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based.(45)The limitations of the liability of intermediary service providers established in this directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.(46)In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.(47)Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.(48)This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.(52)The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means.(58)This Directive should not apply to services supplied by service providers established in a third country; in view of the global dimension of electronic commerce, it is, however, appropriate to ensure that the Community rules are consistent with international rules; this Directive is without prejudice to the results of discussions within international organisations (amongst others WTO, OECD, Uncitral) on legal issues.(60)In order to allow the unhampered development of electronic commerce, the legal framework must be clear and simple, predictable and consistent with the rules applicable at international level so that it does not adversely affect the competitiveness of European industry or impede innovation in that sector.’4Article 14 of Directive 2000/31, entitled ‘Hosting’, states:‘1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:(a)the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;or(b)the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.’5Article 15(1) of that directive provides:‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’6Article 18(1) of that directive provides:‘Member States shall ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.’ Austrian law 7In accordance with Paragraph 1330(1) of the Allgemeines Bürgerliches Gesetzbuch (General Civil Code), anyone who has sustained actual harm or loss of profit owing to damage to his reputation is entitled to claim compensation. Under subparagraph 2 of that paragraph, the same is to apply when a person reports facts prejudicial to the reputation, material situation and future prospects of a third party which he knew or ought to have known to be inaccurate. In that case, a denial and publication of that denial may be required.8According to Paragraph 78(1) of the Urheberrechtsgesetz (Law on copyright), images representing a person must not be displayed publicly or disseminated in another way that makes them accessible to the public if such publication or dissemination harms the legitimate interests of the person concerned or, where that person has deceased without having authorised or ordered such publication, the legitimate interests of a close relative.9Under Paragraph 18(1) of the E-Commerce-Gesetz (Law on electronic commerce), hosting services providers are under no general obligation to monitor the information which they store, transmit or make available, or actively to seek facts or circumstances indicating illegal activity. The dispute in the main proceedings and the questions referred for a preliminary ruling 10Ms Eva Glawischnig-Piesczek was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party ‘die Grünen’ (The Greens) and federal spokesperson for that party.11Facebook Ireland operates a global social media platform (‘Facebook Service’) for users located outside the United States of America and Canada.12On 3 April 2016, a Facebook Service user shared on that user’s personal page an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’, which had the effect of generating on that page a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of Ms Glawischnig-Piesczek. That user also published, in connection with that article, a comment which the referring court found to be harmful to the reputation of the applicant in the main proceedings, and which insulted and defamed her. This post could be accessed by any Facebook user.13By letter of 7 July 2016, Ms Glawischnig-Piesczek, inter alia, asked Facebook Ireland to delete that comment.14Because Facebook Ireland did not withdraw the comment in question, Ms Glawischnig-Piesczek brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) which, by interim order of 7 December 2016, directed Facebook Ireland, with immediate effect and until the proceedings relating to the action for a prohibitory injunction have been finally concluded, to cease and desist from publishing and/or disseminating photographs showing the applicant [in the main proceedings] if the accompanying text contained the assertions, verbatim and/or using words having an equivalent meaning as that of the comment referred to in paragraph 12 above.15Facebook Ireland disabled access in Austria to the content initially published.16On appeal, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld the order made at first instance as regards the identical allegations. However, it also held that the dissemination of allegations of equivalent content had to cease only as regards those brought to the knowledge of Facebook Ireland by the applicant in the main proceedings, by third parties or otherwise.17The Handelsgericht Wien (Commercial Court, Vienna) and the Oberlandesgericht Wien (Higher Regional Court, Vienna) based their decisions on Paragraph 78 of the Law on copyright and Paragraph 1330 of the General Civil Code, on the ground, inter alia, that the published comment contained statements which were excessively harmful to the reputation of Ms Glawischnig-Piesczek and, in addition, gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard.18Each of the parties in the main proceedings lodged appeals on a point of law at the Oberster Gerichtshof (Supreme Court, Austria).19Having been called on to adjudicate whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended to statements with identical wording and/or having equivalent content of which it is not aware, the Oberster Gerichtshof (Supreme Court) states that, in accordance with its own case-law, such an obligation must be considered to be proportionate where the host provider was already aware that the interests of the person concerned had been harmed on at least one occasion as a result of a user’s post and the risk that other infringements may be committed is thus demonstrated.20However, considering that the dispute before it raises questions of the interpretation of EU law, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:worldwide;in the relevant Member State;of the relevant user worldwide;of the relevant user in the relevant Member State?(2)In so far as Question 1 is answered in the negative: does this also apply in each case for information with an equivalent meaning?(3)Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance?’ Consideration of the questions referred The first and second questions 21By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it precludes a court of a Member State from:ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be illegal, or to block access to that information, irrespective of who requested the storage of that information;ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information, andextending the effects of that injunction worldwide.22As a preliminary point, it is common ground that Facebook Ireland provides the services of a host provider for the purposes of Article 14 of Directive 2000/31.23In that respect, it should be recalled that Article 14(1) of that directive is intended to exempt the host provider from liability where it satisfies one of the two conditions listed in that provision, that is to say, not having knowledge of the illegal activity or information, or acting expeditiously to remove or to disable access to that information as soon as it becomes aware of it.24In addition, it is apparent from Article 14(3) of Directive 2000/31, read in conjunction with recital 45, that that exemption is without prejudice to the power of the national courts or administrative authorities to require the host provider concerned to terminate or prevent an infringement, including by removing the illegal information or by disabling access to it.25It follows that, as the Advocate General stated in point 32 of his Opinion, a host provider may be the addressee of injunctions adopted on the basis of the national law of a Member State, even if it satisfies one of the alternate conditions set out in Article 14(1) of Directive 2000/31, that is to say, even in the event that it is not considered to be liable.26Furthermore, Article 18 of Directive 2000/31, which is part of Chapter III of that directive entitled ‘Implementation’, provides in paragraph 1 that Member States must ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.27In the present case, as follows from paragraph 13 above and from the actual wording of the questions raised, Facebook Ireland, first of all, did have knowledge of the illegal information at issue. Next, that company did not act expeditiously to remove or to disable access to that information, as laid down in Article 14(1) of Directive 2000/31. In the end, the applicant in the main proceedings brought an action before a national court for an injunction like the one referred to in Article 18.28Recital 52 of that directive states that the specific character arising from the fact that the damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent, and also by the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, led the legislature of the European Union to request Member States to ensure that appropriate court actions are available.29Thus, when implementing Article 18(1) of Directive 2000/31, Member States have a particularly broad discretion in relation to the actions and procedures for taking the necessary measures.30Moreover, given that those measures, according to a number of linguistic versions of that provision, including the English, Spanish and French-language versions, are expressly intended to terminate ‘any’ alleged infringement and to prevent ‘any’ further impairment of the interests involved, no limitation on their scope can, in principle, be presumed for the purposes of their implementation. That interpretation is not called into question by the fact that other linguistic versions of that provision, including the German version, provide that those measures are intended to terminate ‘an alleged infringement’ and to prevent ‘further impairment of the interests involved’.31Article 15(1) of Directive 2000/31 states that Member States must not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity.32It is by taking all of those provisions into consideration that the Court will reply to the questions raised by the referring court.33In the first place, the referring court asks, in essence, whether Article 15(1) of Directive 2000/31 precludes a court of a Member State from ordering a host provider to remove or block access to information which it stores, the content of which is identical to the content of information which was previously declared to be illegal.34In that regard, although Article 15(1) prohibits Member States from imposing on host providers a general obligation to monitor information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity, as is clear from recital 47 of that directive, such a prohibition does not concern the monitoring obligations ‘in a specific case’.35Such a specific case may, in particular, be found, as in the main proceedings, in a particular piece of information stored by the host provider concerned at the request of a certain user of its social network, the content of which was examined and assessed by a court having jurisdiction in the Member State, which, following its assessment, declared it to be illegal.36Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.37In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.38In the second place, the referring court asks, in essence, whether Article 15(1) of Directive 2000/31 precludes a court of a Member State from ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information.39It is apparent from the information set out in the order for reference that, in using the words ‘information with an equivalent meaning’, the referring court intends to refer to information conveying a message the content of which remains essentially unchanged and therefore diverges very little from the content which gave rise to the finding of illegality.40In that regard, it should be made clear that the illegality of the content of information does not in itself stem from the use of certain terms combined in a certain way, but from the fact that the message conveyed by that content is held to be illegal, when, as in the present case, it concerns defamatory statements made against a specific person.41It follows therefore that, in order for an injunction which is intended to bring an end to an illegal act and to prevent it being repeated, in addition to any further impairment of the interests involved, to be capable of achieving those objectives effectively, that injunction must be able to extend to information, the content of which, whilst essentially conveying the same message, is worded slightly differently, because of the words used or their combination, compared with the information whose content was declared to be illegal. Otherwise, as the referring court made clear, the effects of such an injunction could easily be circumvented by the storing of messages which are scarcely different from those which were previously declared to be illegal, which could result in the person concerned having to initiate multiple proceedings in order to bring an end to the conduct of which he is a victim.42However, it must also be observed that, in this context, as is apparent from Article 15(1) of Directive 2000/31 and as was observed in paragraph 34 above, a court of a Member State may not, first, grant an injunction against a host provider requiring it to monitor generally the information which it stores or, second, require that host provider actively to seek facts or circumstances underlying the illegal content.43In that regard, it should be pointed out in particular that, as is apparent from recital 41 of Directive 2000/31, in adopting that directive, the EU legislature wished to strike a balance between the different interests at stake.44Thus, Article 15(1) of Directive 2000/31 implies that the objective of an injunction such as the one referred to in Article 18(1) of that directive, read in conjunction with recital 41, consisting, inter alia, of effectively protecting a person’s reputation and honour, may not be pursued by imposing an excessive obligation on the host provider.45In light of the foregoing, it is important that the equivalent information referred to in paragraph 41 above contains specific elements which are properly identified in the injunction, such as the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal. Differences in the wording of that equivalent content, compared with the content which was declared to be illegal, must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.46In those circumstances, an obligation such as the one described in paragraphs 41 and 45 above, on the one hand — in so far as it also extends to information with equivalent content — appears to be sufficiently effective for ensuring that the person targeted by the defamatory statements is protected. On the other hand, that protection is not provided by means of an excessive obligation being imposed on the host provider, in so far as the monitoring of and search for information which it requires are limited to information containing the elements specified in the injunction, and its defamatory content of an equivalent nature does not require the host provider to carry out an independent assessment, since the latter has recourse to automated search tools and technologies.47Thus, such an injunction specifically does not impose on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.48In the third place, although the referring court does not provide any explanations in that regard in the grounds for its order for reference, the wording of the questions which it addressed to the Court suggests that its doubts also concern the issue whether Article 15(1) of Directive 2000/31 precludes injunctions such as those referred to in paragraphs 37 and 46 above from being able to produce effects which extend worldwide.49In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive.50Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide.51However, it is apparent from recitals 58 and 60 of that directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level.52It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules.53In the light of all the foregoing, the answer to the first and second questions is that Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from:ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, orordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. The third question 54In the light of the reply given to the first and second questions, it is not necessary to consider the third question referred. Costs 55Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from: ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information; ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, and ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. [Signatures]( *1 ) Language of the case: German. | 7eca9-b005f62-485c | EN |
There are no grounds to question the validity of the regulation on the placing of plant protection products on the market | 1 October 2019 ( *1 )(Reference for a preliminary ruling — Environment — Placing of plant protection products on the market — Regulation (EC) No 1107/2009 — Validity — Precautionary principle — Definition of the concept of ‘active substance’ — Combination of active substances — Reliability of the assessment procedure — Public access to the dossier — Tests of long-term toxicity — Pesticides — Glyphosate)In Case C‑616/17,REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal correctionnel de Foix (Criminal Court of Foix, France), made by decision of 12 October 2017, received at the Court on 26 October 2017, in the criminal proceedings against Mathieu Blaise, Sabrina Dauzet, Alain Feliu, Marie Foray, Sylvestre Ganter, Dominique Masset, Ambroise Monsarrat, Sandrine Muscat, Jean-Charles Sutra, Blanche Yon, Kevin Leo-Pol Fred Perrin, Germain Yves Dedieu, Olivier Godard, Kevin Pao Donovan Schachner, Laura Dominique Chantal Escande, Nicolas Benoit Rey, Eric Malek Benromdan, Olivier Eric Labrunie, Simon Joseph Jeremie Boucard, Alexis Ganter, Pierre André Garcia, intervener: Espace Émeraude, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal and K. Jürimäe, Presidents of Chambers, A. Rosas, E. Juhász, M. Ilešič, J. Malenovský, L. Bay Larsen (Rapporteur), P.G. Xuereb, N. Piçarra, L.S. Rossi and I. Jarukaitis, Judges,Advocate General: E. Sharpston,Registrar: V. Giacobbo-Peyronnel, administrator,having regard to the written procedure and further to the hearing on 20 November 2018,after considering the observations submitted on behalf of:–Mathieu Blaise and Others, by G. Tumerelle, avocat,the French Government, by D. Colas, S. Horrenberger and A.‑L. Desjonquères, acting as Agents,the Greek Government, by G. Kanellopoulos, E. Chroni and M. Tassopoulou, acting as Agents,the Finnish Government, by H. Leppo, acting as Agent,the European Parliament, by A. Tamás, D. Warin and I. McDowell, acting as Agents,the Council of the European Union, by A.‑Z. Varfi and M. Moore, acting as Agents,the European Commission, by F. Castillo de la Torre, A. Lewis, I. Naglis and G. Koleva, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 March 2019,gives the following Judgment 1This request for a preliminary ruling concerns the validity of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).2The request has been made in criminal proceedings brought against Mr Blaise and 20 other defendants charged with damaging or defacing property belonging to another person, while acting together. Legal context Directive 2003/4/EC 3Article 4(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) is worded as follows:‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:…(d)the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.…’ Regulation No 1107/2009 4Recital 8 of Regulation No 1107/2009 states:‘The purpose of this Regulation is to ensure a high level of protection of both human and animal health and the environment and at the same time to safeguard the competitiveness of Community agriculture. … The precautionary principle should be applied and this Regulation should ensure that industry demonstrates that substances or products produced or placed on the market do not have any harmful effect on human or animal health or any unacceptable effects on the environment.’5Article 1 of that regulation provides:‘1. This Regulation lays down rules for the authorisation of plant protection products in commercial form and for their placing on the market, use and control within the Community.2. This Regulation lays down … rules for the approval of active substances … which plant protection products contain or consist of …3. The purpose of this Regulation is to ensure a high level of protection of both human and animal health and the environment and to improve the functioning of the internal market through the harmonisation of the rules on the placing on the market of plant protection products, while improving agricultural production.4. The provisions of this Regulation are underpinned by the precautionary principle in order to ensure that active substances or products placed on the market do not adversely affect human or animal health or the environment. In particular, Member States shall not be prevented from applying the precautionary principle where there is scientific uncertainty as to the risks with regard to human or animal health or the environment posed by the plant protection products to be authorised in their territory.’6Article 2(2) of that regulation is worded as follows:‘This Regulation shall apply to substances, including micro-organisms having general or specific action against harmful organisms or on plants, parts of plants or plant products, referred to as “active substances”.’7Article 3 of that regulation contains a number of definitions for the purpose of that regulation.8Article 4(1) to (3) and (5) of Regulation No 1107/2009 is worded as follows:‘1. An active substance shall be approved in accordance with Annex II if it may be expected, in the light of current scientific and technical knowledge, that, taking into account the approval criteria set out in points 2 and 3 of that Annex, plant protection products containing that active substance meet the requirements provided for in paragraphs 2 and 3.2. The residues of the plant protection products, consequent on application consistent with good plant protection practice and having regard to realistic conditions of use, shall meet the following requirements:(a)they shall not have any harmful effects on human health, including that of vulnerable groups, or animal health, taking into account known cumulative and synergistic effects where the scientific methods accepted by the [European Food Safety Authority] to assess such effects are available, or on groundwater;3. A plant protection product, consequent on application consistent with good plant protection practice and having regard to realistic conditions of use, shall meet the following requirements:(b)it shall have no immediate or delayed harmful effect on human health, … taking into account known cumulative and synergistic effects where the scientific methods accepted by the [European Food Safety Authority] to assess such effects are available …;5. For approval of an active substance, paragraphs 1, 2 and 3 shall be deemed to be satisfied where this has been established with respect to one or more representative uses of at least one plant protection product containing that active substance.’9Article 7(1) of that regulation states:‘An application for the approval of an active substance … shall be submitted by the producer of the active substance to a Member State, (the rapporteur Member State), together with a summary and a complete dossier as provided for in Article 8(1) and (2) … demonstrating that the active substance fulfils the approval criteria provided for in Article 4.’10Article 8 of that regulation provides:‘1. The summary dossier shall include the following:for each point of the data requirements for the active substance, the summaries and results of tests and studies, the name of their owner and of the person or institute that has carried out the tests and studies;(c)for each point of the data requirements for the plant protection product, the summaries and results of tests and studies, the name of their owner and of the person or institute that carried out the tests and studies, relevant to the assessment of the criteria provided for in Article 4(2) and (3) for one or more plant protection products …;2. The complete dossier shall contain the full text of the individual test and study reports concerning all the information referred to in points (b) and (c) of paragraph 1. …4. The data requirements referred to in paragraphs 1 and 2 shall contain the requirements for active substances and plant protection products as set out in Annexes II and III to [Council] Directive 91/414/EEC [of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1)] and laid down in Regulations adopted in accordance with the advisory procedure referred to in Article 79(2) without any substantial modifications. Subsequent amendments to these Regulations shall be adopted in accordance with Article 78(1)(b).5. Scientific peer-reviewed open literature, as determined by the [European Food Safety Authority], on the active substance and its relevant metabolites dealing with side-effects on health, the environment and non-target species and published within the last 10 years before the date of submission of the dossier shall be added by the applicant to the dossier.’11Article 10 of that regulation provides:‘The [European Food Safety Authority] shall without delay make the summary dossier referred to in Article 8(1) available to the public, excluding any information in respect of which confidential treatment has been requested and justified pursuant to Article 63, unless there is an overriding public interest in its disclosure.’12Article 11(1) to (3) of Regulation No 1107/2009 states:‘1. Within 12 months of the date of the notification … the rapporteur Member State shall prepare and submit to the Commission, with a copy to the [European Food Safety Authority], a report, referred to as the “draft assessment report”, assessing whether the active substance can be expected to meet the approval criteria provided for in Article 4.2. …The rapporteur Member State shall make an independent, objective and transparent assessment in the light of current scientific and technical knowledge.3. Where the rapporteur Member State needs additional studies or information, it shall set a period in which the applicant must supply those studies or that information. …’13Article 12(1) to (3) of that regulation is worded as follows:‘1. The [European Food Safety Authority] shall circulate the draft assessment report received from the rapporteur Member State to the applicant and the other Member States … It shall ask the applicant to circulate an update of the dossier where applicable to the Member States, the Commission and the [European Food Safety Authority].The [European Food Safety Authority] shall make the draft assessment report available to the public, after giving the applicant two weeks to request, pursuant to Article 63, that certain parts of the draft assessment report be kept confidential.2. The [European Food Safety Authority] where appropriate shall organise a consultation of experts, including experts from the rapporteur Member State.Within 120 days of the end of the period provided for the submission of written comments, the [European Food Safety Authority] shall adopt a conclusion in the light of current scientific and technical knowledge using guidance documents available at the time of application on whether the active substance can be expected to meet the approval criteria provided for in Article 4 and shall communicate it to the applicant, the Member States and the Commission and shall make it available to the public. …3. Where the [European Food Safety Authority] needs additional information, it shall set a period of a maximum of 90 days for the applicant to supply it to the Member States, the Commission and the [European Food Safety Authority].The [European Food Safety Authority] may ask the Commission to consult a Community reference laboratory … for the purposes of verifying whether the analytical method for the determination of the residues proposed by the applicant is satisfactory …’14Article 13(1) and (2) of that regulation provides:‘1. Within six months of receiving the conclusion from the [European Food Safety Authority], the Commission shall present a report, referred to as “the review report”, and a draft Regulation to the Committee referred to in Article 79(1), taking into account the draft assessment report by the rapporteur Member State and the conclusion of the [European Food Safety Authority].2. A Regulation shall be adopted in accordance with the regulatory procedure referred to in Article 79(3) … providing that:an active substance is approved, subject to conditions and restrictions, as referred to in Article 6, where appropriate;an active substance is not approved; orthe conditions of the approval are amended.’15Article 21 of that regulation states:‘1. The Commission may review the approval of an active substance at any time. It shall take into account the request of a Member State to review, in the light of new scientific and technical knowledge and monitoring data, the approval of an active substance. …Where, in the light of new scientific and technical knowledge, it considers that there are indications that the substance no longer satisfies the approval criteria provided for in Article 4 … it shall inform the Member States, the [European Food Safety Authority] and the producer of the active substance, setting a period for the producer to submit its comments.3. Where the Commission concludes that the approval criteria provided for in Article 4 are no longer satisfied, … a Regulation to withdraw or amend the approval shall be adopted in accordance with the regulatory procedure referred to in Article 79(3).16Articles 25 to 27 of Regulation No 1107/2009 lay down the rules relating to the approval of safeners and synergists and the acceptance of co-formulants.17Article 29 of that regulation provides:‘1. Without prejudice to Article 50 a plant protection product shall only be authorised where following the uniform principles referred to in paragraph 6 it complies with the following requirements:its active substances, safeners and synergists have been approved;(e)in the light of current scientific and technical knowledge, it complies with the requirements provided for in Article 4(3);2. The applicant shall demonstrate that the requirements provided for in points (a) to (h) of paragraph 1 are met.3. Compliance with the requirements set out in point (b) and points (e) to (h) of paragraph 1 shall be established by official or officially recognised tests and analyses …6. Uniform principles for evaluation and authorisation of plant protection products shall contain the requirements set out in Annex VI to Directive 91/414/EEC and shall be laid down in Regulations adopted in accordance with the advisory procedure referred to in Article 79(2) without any substantial modifications. Subsequent amendments to these Regulations shall be adopted in accordance with Article 78(1)(c).Following these principles, interaction between the active substance, safeners, synergists and co-formulants shall be taken into account in the evaluation of plant protection products.’18Article 33(1) and (3) of that regulation states:‘1. An applicant who wishes to place a plant protection product on the market shall apply for an authorisation …3. The application shall be accompanied by the following:for the plant protection product concerned, a complete and a summary dossier for each point of the data requirements of the plant protection product;for each active substance, safener and synergist contained in the plant protection product, a complete and a summary dossier for each point of the data requirements of the active substance, safener and synergist;19Article 36(1) of that regulation provides:‘The Member State examining the application shall make an independent, objective and transparent assessment in the light of current scientific and technical knowledge using guidance documents available at the time of application. …20Article 37(1) of Regulation No 1107/2009 states:‘The Member State examining the application shall decide within 12 months of receiving it whether the requirements for authorisation are met.Where the Member State needs additional information, it shall set a time limit for the applicant to supply it. …’21Article 44(1) and (3) of that regulation is worded as follows:‘1. Member States may review an authorisation at any time where there are indications that a requirement referred to in Article 29 is no longer satisfied.3. The Member State shall withdraw or amend the authorisation, as appropriate, where:the requirements referred to in Article 29 are not or are no longer satisfied;false or misleading information was supplied concerning the facts on the basis of which the authorisation was granted;22Article 63 of that regulation is worded as follows:‘1. A person requesting that information submitted under this Regulation is to be treated as confidential shall provide verifiable evidence to show that the disclosure of the information might undermine his commercial interests, or the protection of privacy and the integrity of the individual.2. Disclosure of the following information shall normally be deemed to undermine the protection of the commercial interests or of privacy and the integrity of the individuals concerned:the method of manufacture;(f)information on the complete composition of a plant protection product;3. This Article is without prejudice to Directive [2003/4].’23Point 1.2 of Annex II to Regulation No 1107/2009 states:‘The evaluation by the [European Food Safety Authority] and the rapporteur Member State must be based on scientific principles and be made with the benefit of expert advice.’24Point 3.5 of that Annex provides:‘3.5.1.The methods of analysis of the active substance, safener or synergist as manufactured and of determination of impurities of toxicological, ecotoxicological or environmental concern or which are present in quantities greater than 1 g/kg in the active substance, safener or synergist as manufactured, shall have been validated and shown to be sufficiently specific, correctly calibrated, accurate and precise.3.5.2.The methods of residue analysis for the active substance and relevant metabolites in plant, animal and environmental matrices and drinking water, as appropriate, shall have been validated and shown to be sufficiently sensitive with respect to the levels of concern.3.5.3.The evaluation has been carried out in accordance with the uniform principles for evaluation and authorisation of plant protection products referred to in Article 29(6).’25Points 3.6.3 and 3.6.4 of that Annex subject, inter alia, the approval of active substances to the results of assessments including testing of carcinogenicity and toxicity. The dispute in the main proceedings and the questions referred for a preliminary ruling 26On 27 September 2016 Mr Blaise and 20 other individuals entered shops in the department of Ariège (France) and damaged cans of weed killer, containing glyphosate as well as glass display cases.27Those acts led to criminal proceedings being brought against those individuals before the tribunal correctionnel de Foix (Criminal Court of Foix, France), on charges of defacing or damaging the property of another, while acting in concert with others.28Before that court, the accused pleaded the defence of necessity and the precautionary principle, arguing that the aim of their actions had been to alert the shops concerned and their customers to the dangers associated with selling, without sufficient warnings, weed killers containing glyphosate, to prevent such sales, and to protect public health and their own health.29In order to give a ruling on whether that argument is well founded, the referring court is uncertain whether the EU legislation is capable of fully ensuring the protection of the human population and considers, therefore, that a ruling on the validity of Regulation No 1107/2009 in the light of precautionary principle is required.30In those circumstances, the tribunal correctionnel de Foix (Criminal Court of Foix) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Is Regulation [No 1107/2009] compatible with the precautionary principle when it provides no specific definition of an active substance, leaving it to the applicant to determine what it designates as the active substance in its product and granting it scope to focus its whole application dossier on a single substance, while its end product placed on the market is made up of several substances?(2)Is the precautionary principle observed and impartiality of the authorisation to place products on the market maintained when the tests, analyses and evaluations necessary for [investigating] the dossier are conducted by the applicants alone, who may be biased in their presentation, without any independent counter-analysis or publication of the application reports on the pretext of protecting industrial secrecy?(3)Is Regulation [No 1107/2009] compatible with the precautionary principle when it takes no account of there being multiple active substances or of their cumulative use, in particular when it makes no provision for any comprehensive specific analysis at European level of [the cumulative effect] of active substances within a single product?(4)Is Regulation [No 1107/2009] compatible with the precautionary principle when, in Chapters III and IV, it exempts from toxicity tests (genotoxicity, carcinogenicity assessment, assessment of endocrine disruptors, etc.) pesticide products in the commercial formulations in which they are placed on the market and in which consumers and the environment are exposed to them, requiring only summary testing, which is [in any event] performed by the applicant itself?’ The admissibility of the request for a preliminary ruling 31The European Parliament and the European Commission contest the admissibility of the request for a preliminary ruling.32The Parliament considers that the Court’s reply to this request can have no effect on the outcome of the criminal prosecutions brought in the main proceedings. Although only a finding that the approval granted to glyphosate was invalid might possibly have some relevance in that regard, the request concerns solely the validity of Regulation No 1107/2009.33For its part, the Commission argues that the main proceedings concern a plant protection product authorised by the French Republic and that the referring court fails to explain how the invalidity of Regulation No 1107/2009 could have any effect on the classification as criminal offences of the acts allegedly committed by the accused or on the assessment of whether criminal prosecutions brought against them are appropriate.34It must be borne in mind that, in accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 26).35It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 27).36In this case, it is apparent from the order for reference and from the response of the referring court to a request for clarification that, according to that court, a declaration that Regulation No 1107/2009 is invalid might, pursuant to the rules of French criminal law, lead it to hold that the legal element that is a constituent of the crime that the accused are alleged to have committed is nullified, taking into consideration that the plant protection products at issue are harmful to human health.37In those circumstances, given that, first, in the procedure under Article 267 TFEU, the interpretation of national law is exclusively for the referring court (see, to that effect, judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 24 and the case-law cited), and, second, Regulation No 1107/2009 establishes the rules whereby the harmfulness to human health or to animal health or to the environment of such products and the active substances of which those products are composed must be assessed before they can be authorised by a Member State, it cannot be held that questions seeking an examination of the compliance of that regulation with the precautionary principle manifestly bear no relation to the actual facts of the main action or its purpose.38The fact that the questions referred do not concern the validity of the EU acts approving the active substance contained in those products cannot lead to any other conclusion, since the main proceedings concern plant protection products which, as such, had to be authorised under that regulation.39Consequently, the request for a preliminary ruling is admissible. Consideration of the questions referred 40By its questions, which can be examined together, the referring court asks the Court, in essence, to assess the validity of Regulation No 1107/2009 in the light of the precautionary principle. The scope of the precautionary principle and whether Regulation No 1107/2009 must comply with it 41It must be noted, first, that, while Article 191(2) TFEU provides that the policy on the environment is to be based on, inter alia, the precautionary principle, that principle is also applicable in the context of other EU policies, in particular the policy on the protection of public health and where the EU institutions adopt, under the common agricultural policy or the policy on the internal market, measures for the protection of human health (see, to that effect, judgments of 2 December 2004, Commission v Netherlands, C‑41/02, EU:C:2004:762, paragraph 45; of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 68; and of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraphs 71 and 72).42There is therefore an obligation on the EU legislature, when it adopts rules governing the placing on the market of plant protection products, such as those laid down in Regulation No 1107/2009, to comply with the precautionary principle, in order to ensure, in particular, in accordance with Article 35 of the Charter of Fundamental Rights of the European Union and Article 9 and Article 168(1) TFEU, a high level of protection of human health (see, by analogy, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 116).43That principle entails that, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because the results of studies conducted are inconclusive, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (see, to that effect, judgments of 22 December 2010, Gowan ComércioInternacional e Serviços, C‑77/09, EU:C:2010:803, paragraphs 73 and 76; of 17 December 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 81 and 82; and of 22 November 2018, Swedish Match, C‑151/17, EU:C:2018:938, paragraph 38).44In that regard, it is clear from recital 8 and Article 1(4) of Regulation No 1107/2009 that the provisions of that regulation are based on the precautionary principle and that those provisions do not prevent the Member States from applying that principle where there is scientific uncertainty as to the risks with regard to human or animal health or the environment posed by the plant protection products to be authorised in their territory.45However, that finding cannot be sufficient to establish that that regulation complies with the precautionary principle.46A correct application of that principle in the area covered by Regulation No 1107/2009 presupposes, first, identification of the potentially negative consequences for health of the use of the active substances and plant protection products falling within its scope, and, second, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research (see, by analogy, judgments of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 60, and of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraph 75).47Consequently, since the purpose of Regulation No 1107/2009 is, as provided in Article 1(1) and (2) thereof, to lay down rules for the authorisation of plant protection products and the approval of active substances contained in those products, for their placing on the market, the EU legislature ought to establish a normative framework that ensures that the competent authorities have available to them, when they decide on that authorisation and that approval, sufficient information in order adequately to assess, in accordance with the requirements mentioned in paragraphs 43 and 46 of the present judgment, the risks to health resulting from the use of those active substances and those plant protection products.48It must also be recalled that the validity of a provision of EU law is to be assessed according to the characteristics of those provisions themselves and cannot depend on the particular circumstances of a given case (judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraph 72).49It follows that the criticism expressed by the referring court in relation to the conduct of the procedure that led to the approval of glyphosate cannot, in isolation, lead to a finding that the general rules governing such a procedure are unlawful.50It must, moreover, be added that, in view of the need to strike a balance between several objectives and principles, and of the complexity of the application of the relevant criteria, judicial review by the Court must necessarily be limited to whether the EU legislature, in adopting Regulation No 1107/2009, committed a manifest error of assessment (see, to that effect, judgment of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 46).51Accordingly, since the referring court considers that the general rules established by that regulation themselves do not satisfy the requirements arising from the precautionary principle, it is necessary to examine its criticism in order to determine whether that regulation is vitiated by a manifest error of assessment. The identification of the active substances of a plant protection product 52The referring court considers that Regulation No 1107/2009 provides no precise definition of the concept of an ‘active substance’. Accordingly, the referring court has doubts as to the compatibility with the precautionary principle of the fact that, according to that court, it is open to the applicant to shape the examination of an application for the authorisation of a plant protection product by choosing, at his discretion the constituent of the product which is to be described as its ‘active substance’.53In that regard, it must indeed be noted that Article 3 of that regulation, the purpose of which is to define a number of concepts for the purposes of that regulation, does not contain any definition of the expression ‘active substance’.54That said, first, it is clear from Article 2(2) of Regulation No 1107/2009 that substances, including micro-organisms, having general or specific action against harmful organisms or on plants, parts of plants or plant products are to be regarded as active substances, for the purposes of that regulation.55Second, it follows from Article 33 of that regulation that an applicant who wishes to place a plant protection product on the market must apply for an authorisation, and his application must contain the information required for the processing of that application. In particular, Article 33(3)(b) of that regulation provides that an application for authorisation of such a product must be accompanied, for each active substance contained in that product, by a complete and a summary dossier in respect of each point of the data requirements that apply to the active substance.56Further, in accordance with Article 78(1)(b) of Regulation No 1107/2009, read together with Article 8(4) of that regulation, the conditions which must be satisfied by the dossiers to be submitted in order to obtain the approval of active substances have been set out in detail, latterly, by Commission Regulation (EU) No 283/2013 of 1 March 2013 setting out the data requirements for active substances, in accordance with Regulation No 1107/2009 (OJ 2013 L 93, p. 1), which establishes, in particular, requirements, defined in section 1 of Part A of the Annex to that regulation, for the identification of those active substances. It is clear from those requirements that the information submitted must be sufficient to identify precisely each active substance and to define it in terms of its specification and nature.57It follows that an applicant is bound to identify, when submitting his application for authorisation of a plant protection product, any substance forming part of the composition of that product that corresponds to the criteria set out in Article 2(2) of Regulation No 1107/2009, so that, contrary to what is envisaged by the referring court, an applicant does not have the option of choosing at his discretion which constituent of that product is to be considered to be an active substance for the purposes of the examination of that application.58Further, it is not clearly evident that the criteria set out in that provision are insufficient to permit an objective determination of the substances concerned and to ensure that substances that actually play a role in the action of the plant protection products are actually taken into account in the assessment of the risks arising from the use of those products.59It must be added that it is the task of the competent authorities of the Member States to ensure that the obligation to identify the active substances contained in the plant protection product that is the subject of an application for authorisation has been met by the applicant, in order to be in a position to determine that that product satisfies the conditions laid down in Article 29 of that regulation, which imposes, inter alia, the requirement, in Article 29(1)(a), that each of those active substances has been approved.60In any event, the holder of an authorisation for a plant protection product who has not, in his application for authorisation, mentioned all the active substances contained in that product, would run the risk, under Article 44(3)(a) and (b) of that regulation, of his authorisation being withdrawn.61In the light of the foregoing, it cannot be held that the choices made by the EU legislature with respect to the obligations imposed on the applicant in relation to the identification of the active substances that form part of the composition of the plant protection product which is the subject of his application for authorisation are vitiated by a manifest error of assessment. Whether the cumulative effects of constituents of a plant protection product are taken into account 62The referring court is uncertain whether an alleged failure to take into account and undertake a specific analysis of the effects of a combination of a number of active substances contained in a plant protection product is compatible with the precautionary principle.63In that regard, it must be emphasised that Regulation No 1107/2009 makes provision for both a procedure for the approval of active substances, governed by Chapter II of that regulation, and a procedure for authorisation of plant protection products, governed by Chapter III of that regulation.64Those two procedures are closely linked, in that, in particular, the authorisation of a plant protection product presupposes, pursuant to Article 29(1)(a) of that regulation, that its active substances have previously been approved.65The EU legislature has imposed the requirement to take into account the potential effects of a combination of the various constituents of a plant protection product both in the procedure for the approval of the active substances and in the procedure for the authorisation of the plant protection products.66In accordance with Article 11(2) and Article 36(1) of Regulation No 1107/2009, the Member State dealing with an application for approval of an active substance or for authorisation of a plant protection product must undertake an independent, objective and transparent assessment of that application in the light of current scientific and technical knowledge.67In the procedure for the approval of an active substance, the aim of that assessment is, pursuant to Article 4(1) to (3) and (5) of that regulation, inter alia, to verify that one or more representative uses of at least one plant protection product containing that substance and the residues of such a product have no immediate or delayed harmful effect on human health.68Apart from the fact that it is inherent in such an assessment that it cannot be carried out in an objective fashion while failing to take into account the effects deriving from a possible combination of various constituents of a plant protection product, it must, in addition, be noted that Article 4(2) and (3) of that regulation explicitly provides that the possibility of that product or its residues having a harmful effect on human or animal health must be assessed taking into account ‘known cumulative and synergistic effects’, which implies, as stated by the Advocate General in point 58 of her Opinion, taking into consideration the effects caused by the interaction between a given active substance and, inter alia, the other constituents of the product.69That requirement also binds the European Food Safety Authority (‘the Authority’) where, in accordance with the second subparagraph of Article 12(2) of Regulation No 1107/2009, it adopts, in the light of current scientific and technical knowledge, conclusions in which it states whether the active substance can be expected to meet the approval criteria provided for in Article 4 of that regulation.70It must also be stated that, in accordance with Article 13(1) and (2) of Regulation No 1107/2009, the draft assessment report prepared by the rapporteur Member State and the conclusions of the Authority must be taken into account by the Commission in the review report that is to be the basis, when appropriate, for the adoption of a regulation approving the active substance concerned.71As regards the procedure for the authorisation of a plant protection product, taking into account the known cumulative and synergistic effects of the constituents of that product is again required, since, pursuant to Article 29(1)(e) of Regulation No 1107/2009, one of the requirements imposed if a plant protection product is to be authorised is that it must, in the light of current scientific and technical knowledge, comply with the conditions laid down in Article 4(3) of that regulation.72That requirement is, moreover, stated in Article 29(6) of Regulation No 1107/2009, from which it is apparent that, by virtue of the uniform principles for evaluation and authorisation of plant protection products that must be applied by the Member States, the interaction between the active substances, the safeners, the synergists and the co-formulants must be taken into account in such an assessment.73It is clear moreover from points 1.2 and 1.3 of the Annex to Commission Regulation (EU) No 284/2013 of 1 March 2013 setting out the data requirements for plant protection products, in accordance with Regulation No 1107/2009 (OJ 2013 L 93, p. 85) that, to obtain the authorisation of plant protection products, there must be submitted any information on potentially harmful effects of the plant protection product on human and animal health or on the environment, as well as known and expected cumulative and synergistic effects caused by such interaction.74The need to take into consideration the effects of the constituents of a plant protection product as a whole is, moreover, confirmed by the rules laid down in Articles 25 and 27 of Regulation No 1107/2009, from which it is clear that the placing on the market of safeners, synergists and co-formulants contained in such a product must also be subject to assessments to determine whether they have any harmful effects.75It follows from the foregoing that, contrary to the premiss which is the basis of the referring court’s uncertainty as described in paragraph 62 of the present judgment, the procedures leading to the authorisation of a plant protection product must necessarily include an assessment not only of the specific effects of the active substances contained in that product, but also of the cumulative effects of those substances and their effects combined with other constituents of that product.76Consequently, it cannot be held that Regulation No 1107/2009 is vitiated by a manifest error of assessment in that it does not make sufficient provision for the combined effects of the various constituents of a plant protection product to be taken into account before the placing on the market of that product is authorised. The reliability of the tests, studies and analyses taken into account for the authorisation of a plant protection product 77The referring court is uncertain whether the fact that the tests, studies and analyses required in the procedures for the approval of an active substance and authorisation of plant protection products are submitted by the applicant, with no independent counter-analysis, is contrary to the precautionary principle, in that it implies that those tests, studies and analyses might be biased.78It is apparent, admittedly, from Article 7(1) and from Article 8(1) and (2) of Regulation No 1107/2009, that the tests, studies and analyses required to permit the approval of an active substance must be provided by the applicant. The same is true in the procedure for authorisation of a plant protection product, pursuant to Article 33(3)(a) and (b) of that regulation, read together with Article 8(1) and (2) thereof.79Those rules constitute the corollary of the principle, set out in Article 7(1) and in Article 29(2) of that regulation, that it is for the applicant to prove that the active substance or plant protection product that is the subject of an application for approval or authorisation fulfils the relevant criteria laid down by that regulation.80That obligation contributes to achieving compliance with the precautionary principle by ensuring that there is no presumption that active substances and plant protection products have no harmful effects.81Further, it cannot be held that the body of rules established by Regulation No 1107/2009 enables an applicant to submit tests, studies and analyses that are biased in order to obtain, on that basis, the approval of an active substance or the authorisation of a plant protection product.82In that regard, it must, first, be stated that the EU legislature sought to control the quality of the tests, studies and analyses submitted in support of an application based on that regulation.83Accordingly, Article 8(1) of that regulation provides, inter alia, that the summary dossier submitted by the applicant must contain, in respect of each point of the data requirements that apply to the active substances and the plant protection products, the summaries and results of tests and studies, the name of their owner and of the person or institute that has carried out the tests and studies.84Likewise, as regards the procedure for the approval of the active substances, point 3.5 of Annex II to Regulation No 1107/2009 requires that the methods of analysis of the active substance and its residues should be validated and that the sufficiency of those methods to achieve various objectives should be demonstrated.85As regards the procedure for the authorisation of plant protection products, Article 29(3) of Regulation No 1107/2009 provides that compliance with a number of requirements, including the requirement that the product concerned has no harmful effects, is to be established by ‘official or officially recognised tests and analyses’, which necessarily precludes tests or analyses which do not sufficiently provide the guarantees of impartiality, objectivity or transparency from being accepted.86Further, while, for the remainder, Regulation No 1107/2009 does not directly establish standards stipulating in detail the manner in which the tests, studies and analyses submitted by the applicant are to be carried out, Article 8(4) of that regulation provides that rules are to be adopted with respect to the data requirements for the active substances and the plant protection products in the light of current scientific and technical knowledge.87Such standards have been adopted and are to be found in point 3 of the Annex to Regulation No 283/2013 and in point 3 of the Annex to Regulation No 284/2013.88Second, it must be recalled, as stated in paragraphs 66 and 69 of the present judgment, that the Member State to which an application is submitted must undertake an independent, objective and transparent assessment of that application in the light of current scientific and technical knowledge, while the Authority must adopt a decision in the light of current scientific and technical knowledge.89Meeting those requirements is assisted by Article 8(5) of Regulation No 1107/2009, which obliges the applicant to add to the dossier the scientific peer-reviewed open literature, as determined by the Authority, on the active substance and its relevant metabolites, dealing with side-effects on health, the environment and non-target species, and published within the last 10 years.90Further, point 1.2 of Annex II to Regulation No 1107/2009 provides that the evaluation of an active substance by the Authority and the rapporteur Member State must be based on scientific principles and be made with the benefit of expert advice.91It follows, in the first place, that, in order to be satisfied that an applicant has established, as required by Article 4(3)(b) and Article 29(1)(e) of that regulation, that a plant protection product has no harmful effects, the competent authorities cannot rely on tests, analyses and studies for which the applicant has not submitted evidence to demonstrate that those tests, analyses and studies were carried out by a reliable institution on the basis of methods that comply with accepted scientific principles.92If those authorities consider that the evidence submitted in that regard by the applicant is insufficient, they are under an obligation to request, pursuant to Article 11(3), Article 12(3) and Article 37(1) of that regulation, that additional information be provided by the applicant.93In the second place, as part of the assessment that those authorities must undertake, since, as stated in paragraph 88 of the present judgment, that assessment must be, in particular, independent and objective, those authorities are of necessity bound to take into account relevant evidence other than the tests, analyses and studies submitted by the applicant that might contradict the latter. Such an approach is compatible with the precautionary principle.94With that in mind, it is the duty of the competent authorities, in particular, to take account of the most reliable scientific data available and the most recent results of international research and not to give in all cases preponderant weight to the studies provided by the applicant.95In the event that the competent authorities come to the conclusion that, having regard to all the information at their disposal, an applicant has not established to the required standard that the conditions governing the approval or authorisation applied for are satisfied, they are bound to decide that the application should be rejected, there being no need, in order to reach that conclusion, to undertake a second assessment.96Third, it is clear that various provisions of Regulation No 1107/2009 play a part in ensuring that the assessment made by the competent authorities can rely on information other than merely the tests, analyses and studies submitted by the applicant.97Thus, it follows from Article 11(1) and from Article 12(1) of that regulation that, before the approval of an active substance, the rapporteur Member State is to prepare a draft assessment report which is to be sent to the other Member States and to the Authority.98In addition, in order to determine its conclusions, the Authority has the option, in accordance with Article 12(2) and (3) of that regulation, of organising a consultation of experts and of asking the Commission to consult a Community reference laboratory, to which the applicant may be required to submit samples and analytical standards. The conclusions are, moreover, communicated to the Member States.99Fourth, it is apparent from Article 21(1) and (3) of Regulation No 1107/2009 that the Commission may review the approval of an active substance at any time, including where, in the light of new scientific and technical knowledge, there are indications that the substance no longer satisfies the approval criteria laid down in Article 4 of that regulation. Likewise, it follows from Article 44(1) and (3) of that regulation that the authorisation of a plant protection product may be reviewed, then amended or withdrawn, where, inter alia, it is apparent from developments in scientific and technical knowledge that the product does not satisfy or no longer satisfies the requirements for a marketing authorisation laid down in Article 29 of that regulation, including the requirement that it has no immediate or delayed harmful effect on human health.100In the light of all the foregoing, it does not appear that Regulation No 1107/2009 is vitiated by a manifest error of assessment in that it provides that the tests, studies and analyses necessary in the procedures for approval of an active substance and for authorisation of a plant protection product are to be submitted by the applicant, but does not systematically require that an independent counter-analysis be carried out. Whether the authorisation application dossier should be public 101The referring court expresses doubts as to the compatibility with the precautionary principle of the fact that the dossier lodged by the applicant as part of the procedures established by Regulation No 1107/2009 is confidential.102In that regard, while it is not inconceivable that increased transparency in those procedures may be such as to permit an even better assessment of the risk to health resulting from the use of a plant protection product, by enabling the public concerned to put forward arguments opposing the grant of the approval or authorisation sought by an applicant, it must, in any event, be held that that regulation permits, to a great extent, the public to obtain access to the dossier lodged by the applicant.103First, as regards the procedure for the approval of an active substance, Article 10 of that regulation establishes the general rule that the Authority is without delay to make the summary dossier referred to in Article 8(1) of that regulation available to the public, that dossier containing, inter alia, the summaries and the results of the tests and studies submitted by the applicant.104Likewise, Article 12(1) of Regulation No 1107/2009 provides, inter alia, that the Authority is to make the draft assessment report received from the rapporteur Member State available to the public. That draft assessment report, the purpose of which is, in accordance with Article 11(1) of that regulation, to assess whether the active substance can be expected to meet the approval criteria provided for in Article 4 of that regulation, necessarily includes an analysis of the dossier submitted by the applicant.105Second, Article 63(1) of Regulation No 1107/2009 provides that a person requesting that information submitted under that regulation should be treated as confidential is to provide verifiable evidence to show that the disclosure of that information might undermine his commercial interests, or the protection of privacy and the integrity of the individual, that risk being presumed, however, with respect to information specified in Article 63(2) of that regulation.106Third, Article 63(3) of Regulation No 1107/2009 states that that article is to be without prejudice to the application of Directive 2003/4, which means that requests for access by third parties to the information contained in authorisation application dossiers are subject to the general provisions of that directive (see, to that effect, judgment of 23 November 2016, BayerCropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraph 44).107It is clear from the penultimate sentence of Article 4(2) of that directive that Member States may not provide that a request for access which concerns information on emissions into the environment should be refused on grounds based on protection of the confidentiality of commercial or industrial information.108That specific rule is applicable, in particular, to a great extent, to the studies designed to assess the harm that may be caused by the use of a plant protection product or the presence in the environment of residues after the application of that product (see, to that effect, judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraphs 79, 87, 91 and 95).109In those circumstances, it cannot be held that the rules put in place by the EU legislature to ensure public access to information in application dossiers that is relevant to an assessment of the risks arising from the use of a plant protection product are vitiated by a manifest error of assessment. The claim that no studies of carcinogenicity and toxicity are required for the authorisation procedure 110The referring court considers that Regulation No 1107/2009 merely requires an applicant to carry out cursory tests of the plant protection product that is the subject of an application for authorisation and that it exempts him from carrying out tests of long-term carcinogenicity and toxicity. Consequently, the referring court is uncertain whether those rules are compatible with the precautionary principle.111In that regard, it is clear that that regulation does not prescribe in detail the nature of the tests, analyses and studies to which plant protection products must be subject if they are to obtain authorisation.112While points 3.6.3 and 3.6.4 of Annex II to that regulation list explicitly some of the tests to which active substances must be subject before their approval, that regulation contains no comparable provisions with respect to plant protection products.113Nonetheless, it cannot be concluded that Regulation No 1107/2009 exempts the applicant from submitting tests of long-term carcinogenicity and toxicity relating to the plant protection product that is the subject of an application for authorisation.114In that context, it must be recalled that, in accordance with Article 4(3)(b) and Article 29(1)(e) of that regulation, such a product can be authorised only if it is established that it has no immediate or delayed harmful effect on human health, the burden of adducing proof of that lying, in accordance with Article 29(2) of that regulation, on the applicant.115A plant protection product cannot be considered to satisfy that condition where it exhibits any long-term carcinogenicity and toxicity.116It is therefore the task of the competent authorities, when examining an application for the authorisation of a plant protection product, to verify that the material submitted by the applicant, and primarily the tests, analyses and studies of the product, is sufficient to exclude, in the light of current scientific and technical knowledge, the risk that that product exhibits such carcinogenicity or toxicity. In that context, the ‘cursory tests’ mentioned by the referring court would not suffice to perform that verification properly.117In the light of all the foregoing, the answer to the questions referred is that an examination of those questions has revealed nothing capable of affecting the validity of Regulation No 1107/2009. Costs 118Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: An examination of the questions referred for a preliminary ruling has revealed nothing capable of affecting the validity of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC. [Signatures]( *1 ) Language of the case: French. | f6c8a-aadc832-44d7 | EN |
Storing cookies requires internet users’ active consent | 1 October 2019 ( *1 )(Reference for a preliminary ruling — Directive 95/46/EC — Directive 2002/58/EC — Regulation (EU) 2016/679 — Processing of personal data and protection of privacy in the electronic communications sector — Cookies — Concept of consent of the data subject — Declaration of consent by means of a pre-ticked checkbox)In Case C‑673/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 5 October 2017, received at the Court on 30 November 2017, in the proceedings Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Planet49 GmbH, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, M. Vilaras, T. von Danwitz, C. Toader, F. Biltgen, K. Jürimäe and C. Lycourgos, Presidents of Chambers, A. Rosas (Rapporteur), L. Bay Larsen, M. Safjan and S. Rodin, Judges,Advocate General: M. Szpunar,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 13 November 2018,after considering the observations submitted on behalf of:–the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV, by P. Wassermann, Rechtsanwalt,Planet49 GmbH, by M. Jaschinski, J. Viniol and T. Petersen, Rechtsanwälte,the German Government, by J. Möller, acting as Agent,the Italian Government, by G. Palmieri, acting as Agent, and F. De Luca, avvocato dello Stato,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo, L. Medeiros and C. Guerra, acting as Agents,the European Commission, by G. Braun, H. Kranenborg and P. Costa de Oliveira, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 21 March 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 2(f) and of Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘Directive 2002/58’), read in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), and of Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 (General Data Protection Regulation) (OJ 2016 L 119, p. 1).2The request has been made in proceedings between the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV (Federal Union of Consumer Organisations and Associations — Federation of Consumer Organisations, Germany) (‘the Federation’) and Planet49 GmbH, an online gaming company, concerning the consent of participants in a promotional lottery organised by that company to the transfer of their personal data to the company’s sponsors and partners, to the storage of information and to the access to information stored in the terminal equipment of those users. Legal context EU law Directive 95/46 3Article 1 of Directive 95/46 provides:‘1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.’4Article 2 of the directive provides:‘For the purposes of this Directive:(a)“Personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;(b)“processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;…(h)“the data subject’s consent” shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.’5Article 7 of that directive states:‘Member States shall provide that personal data may be processed only if:the data subject has unambiguously given his consent…’6Under Article 10 of that directive:‘Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it:the identity of the controller and of his representative, if any;the purposes of the processing operation for which the data are intended;(c)any further information such asthe recipients or categories of recipients of the data,whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,the existence of the right of access to and the right to rectify the data concerning him or her,in so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.’ Directive 2002/58 7Recitals 17 and 24 of Directive 2002/58 state:‘(17)For the purposes of this Directive, consent of a user or subscriber, regardless of whether the latter is a natural or a legal person, should have the same meaning as the data subject’s consent as defined and further specified in Directive [95/46]. Consent may be given by any appropriate method enabling a freely given specific and informed indication of the user’s wishes, including by ticking a box when visiting an internet website.(24)Terminal equipment of users of electronic communications networks and any information stored on such equipment are part of the private sphere of the users requiring protection under the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950]. So-called spyware, web bugs, hidden identifiers and other similar devices can enter the user’s terminal without their knowledge in order to gain access to information, to store hidden information or to trace the activities of the user and may seriously intrude upon the privacy of these users. The use of such devices should be allowed only for legitimate purposes, with the knowledge of the users concerned.’8Article 1 of Directive 2002/58 provides:‘1. This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the [European Union].2. The provisions of this Directive particularise and complement Directive [95/46] for the purposes mentioned in paragraph 1. ...’9‘Save as otherwise provided, the definitions in Directive [95/46] and in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [OJ 2002, L 108, p. 33] shall apply.The following definitions shall also apply:“user” means any natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to this service;(f)“consent” by a user or subscriber corresponds to the data subject’s consent in Directive [95/46];10Article 5(3) of the directive provides:‘Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive [95/46], inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.’ Regulation 2016/679 11Recital 32 of Regulation 2016/679 states:‘Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.’12Article 4 of that regulation provides:‘For the purposes of this Regulation:(1)“personal data” means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;(2)“processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;(11)“consent” of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;13Article 6 of the regulation provides:‘1. Processing shall be lawful only if and to the extent that at least one of the following applies:the data subject has given consent to the processing of his or her personal data for one or more specific purposes;14Article 7(4) of the regulation provides:‘When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.’15Under Article 13(1) and (2) of Regulation 2016/679:‘1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:(e)the recipients or categories of recipients of the personal data …2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:the period for which the personal data will be stored, or, where that is not possible, the criteria used to determine that period;16Article 94 of that regulation provides:‘1. Directive [95/46] is repealed with effect from 25 May 2018.2. References to the repealed Directive shall be construed as references to this Regulation. References to the Working Party on the Protection of Individuals with regard to the Processing of Personal Data established by Article 29 of Directive [95/46] shall be construed as references to the European Data Protection Board established by this Regulation.’ German law 17According to the first sentence of Paragraph 307(1) of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’), ‘provisions in standard business terms are ineffective if, contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user’.18Paragraph 307(2)(1) of the BGB provides that, in cases of doubt, ‘an unreasonable disadvantage is to be assumed if a provision is not reconcilable with essential underlying ideas of the statutory provision which is deviated from’.19Paragraph 12 of the Telemediengesetz (Law on telemedia) of 26 February 2007 (BGBl. 2007 I, p. 179) in the version in force at the material time in the main proceedings (‘the TMG’) provides:‘(1) A service provider may collect and use personal data to make telemedia available only in so far as this Law or another legislative provision expressly relating to telemedia so permits or the user has consented to it.(2) Where personal data have been supplied in order for telemedia to be made available, a service provider may use them for other purposes only in so far as this law or another legislative provision expressly relating to telemedia so permits or the user has consented to it.(3) Except as otherwise provided, the provisions concerning the protection of personal data which are applicable in the case in question shall apply even if the data are not processed automatically.’20According to Paragraph 13(1) of the TMG, at the beginning of the act of use, the service provider must inform the user about the nature, scope and purposes of the collection and use of personal data in a generally understandable form, to the extent that such information has not already been provided. In the case of an automated process allowing subsequent identification of the user and which prepares the collection or use of personal data, the user shall be informed at the beginning of this process.21According to Paragraph 15(3) of the TMG, the service provider may, for the purposes of advertising, market research or designing the telemedia in order to meet requirements, create use profiles employing pseudonyms if the user does not object to this after being informed of his right to object.22Under Paragraph 3(1) of the Bundesdatenschutzgesetz (Federal Law on data protection) of 20 December 1990 (BGBl. 1990 I, p. 2954), in the version in force at the material time in the main proceedings (‘the BDSG’), ‘personal data means details of personal or material circumstances of a determined or determinable natural person (data subject)’.23According to the definition in Paragraph 3(3) of the BDSG, collection means the acquisition of data about the data subject.24The first sentence of Paragraph 4a(1) of the BDSG, which transposes Article 2(h) of Directive 95/46, specifies that consent is effective only if it is based on a free decision by the data subject. The dispute in the main proceedings and the questions referred for a preliminary ruling 25On 24 September 2013, Planet49 organised a promotional lottery on the website www.dein-macbook.de.26Internet users wishing to take part in that lottery were required to enter their postcodes, which redirected them to a web page where they were required to enter their names and addresses. Beneath the input fields for the address were two bodies of explanatory text accompanied by checkboxes. The first body of text with a checkbox without a preselected tick (‘the first checkbox’) read:‘I agree to certain sponsors and cooperation partners providing me with information by post or by telephone or by email/SMS about offers from their respective commercial sectors. I can determine these myself here; otherwise, the selection is made by the organiser. I can revoke this consent at any time. Further information about this can be found here.’27The second set of text with a checkbox containing a preselected tick (‘the second checkbox’) read:‘I agree to the web analytics service Remintrex being used for me. This has the consequence that, following registration for the lottery, the lottery organiser, [Planet49], sets cookies, which enables Planet49 to evaluate my surfing and use behaviour on websites of advertising partners and thus enables advertising by Remintrex that is based on my interests. I can delete the cookies at any time. You can read more about this here.’28Participation in the lottery was possible only if at least the first checkbox was ticked.29The hyperlink associated with the words ‘sponsors and cooperation partners’ and ‘here’ next to the first checkbox opened a list of 57 companies, their addresses, the commercial sector to be advertised and the method of communication used for the advertising (email, post or telephone). The underlined word ‘Unsubscribe’ was contained after the name of each company. The following statement preceded the list:‘By clicking on the “Unsubscribe” link, I am deciding that no advertising consent is permitted to be granted to the partner/sponsor in question. If I have not unsubscribed from any or a sufficient number of partners/sponsors, Planet49 will choose partners/sponsors for me at its discretion (maximum number: 30 partners/sponsors).’30When the hyperlink associated with the word ‘here’ next to the second checkbox was clicked on, the following information was displayed:‘The cookies named ceng_cache, ceng_etag, ceng_png and gcr are small files which are stored in an assigned manner on your hard disk by the browser you use and by means of which certain information is supplied which enables more user-friendly and effective advertising. The cookies contain a specific randomly generated number (ID), which is at the same time assigned to your registration data. If you then visit the website of an advertising partner which is registered for Remintrex (to find out whether a registration exists, please consult the advertising partner’s data protection declaration), Remintrex automatically records, by virtue of an iFrame which is integrated there, that you (or the user with the stored ID) have visited the site, which product you have shown interest in and whether a transaction was entered into.Subsequently, [Planet49] can arrange, on the basis of the advertising consent given during registration for the lottery, for advertising emails to be sent to you which take account of your interests demonstrated on the advertising partner’s website. After revoking the advertising consent, you will of course not receive any more email advertising.The information communicated by these cookies is used exclusively for the purposes of advertising in which products of the advertising partner are presented. The information is collected, stored and used separately for each advertising partner. User profiles involving multiple advertising partners will not be created under any circumstances. The individual advertising partners do not receive any personal data.If you have no further interest in using the cookies, you can delete them via your browser at any time. You can find a guide in your browser’s [“help”] function.No programs can be run or viruses transmitted by means of the cookies.You of course have the option to revoke this consent at any time. You can send the revocation in writing to [Planet49] [address]. However, an email to our customer services department [email address] will also suffice.’31According to the order for reference, cookies are text files which the provider of a website stores on the website user’s computer which that website provider can access again when the user visits the website on a further occasion, in order to facilitate navigation on the internet or transactions, or to access information about user behaviour.32In an unanswered letter before action, the Federation, which is registered on the list of entities entitled to bring court proceedings pursuant to Paragraph 4 of the Gesetz über Unterlassungsklagen bei Verbraucherrechts- und anderen Verstößen (Unterlassungsklagengesetz — UKlaG) (Law relating to injunctions in the case of breaches of consumer law and of other laws, ‘the UKlaG’) of 26 November 2001 (BGBl. 2001 I, p. 3138), asserted that the declarations of consent requested by Planet49 through the first and second checkboxes did not satisfy the requirements of Paragraph 307 of the BGB, read in conjunction with Paragraph 7(2)(2) of the Gesetz gegen den unlauteren Wettbewerb (Law against Unfair Competition) of 3 July 2004 (BGBl. 2004 I, p. 1414), in the version in force at the material time in the main proceedings, and Paragraph 12 et seq. of the TMG.33The Federation brought an action before the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for an injunction, in substance, requiring Planet49 to cease using such declarations and to pay it EUR 214 plus interest from 15 March 2014.34The Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main) upheld the action in part.35Following an appeal on points of fact and law brought by Planet49 before the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), that court held that the Federation’s plea for an injunction ordering Planet49 to refrain from including the statement set out in paragraph 27 above, the checkbox for which was pre-checked, in consumer lottery agreements, was unfounded in that, first, the user would realise that he or she could deselect the tick in that checkbox and, second, the text was set out with sufficient clarity from a typographical point of view and provided information about the manner of the use of cookies without it being necessary to disclose the identity of third parties able to access the information collected.36The Bundesgerichtshof (Federal Court of Justice, Germany), before which the Federation brought an appeal on a point of law (Revision), considers that the success of the appeal in the main proceedings turns on the interpretation of Article 5(3) and Article 2(f) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46 and Article 6(1)(a) of Regulation 2016/679.37Harbouring doubts as to the validity, in the light of those provisions, of the consent obtained by Planet49 from internet users of the website www.dein-macbook.de by means of the second checkbox and as to the extent of the information obligation provided for in Article 5(3) of Directive 2002/58, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does it constitute a valid consent within the meaning of Article 5(3) and Article 2(f) of Directive [2002/58], read in conjunction with Article 2(h) of Directive [95/46], if the storage of information, or access to information already stored in the user’s terminal equipment, is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent?For the purposes of the application of Article 5(3) and of Article 2(f) of Directive [2002/58] read in conjunction with Article 2(h) of Directive [95/46], does it make a difference whether the information stored or accessed constitutes personal data?In the circumstances referred to in Question 1(a), does a valid consent within the meaning of Article 6(1)(a) of Regulation [2016/679] exist?What information does the service provider have to give within the scope of the provision of clear and comprehensive information to the user that has to be undertaken in accordance with Article 5(3) of Directive [2002/58]? Does this include the duration of the operation of the cookies and the question of whether third parties are given access to the cookies?’ Consideration of the questions referred Preliminary observations 38As a preliminary matter, it is appropriate to consider the applicability of Directive 95/46 and Regulation 2016/679 to the facts at issue in the main proceedings.39Under Article 94(1) of Regulation 2016/679, Directive 95/46 was repealed and replaced by that regulation with effect from 25 May 2018.40Indeed, that date is more recent than the date of the last hearing before the referring court, which took place on 14 July 2017, and more recent than the date on which the request for a preliminary ruling was referred by the national court.41However, the referring court stated that, in view of the entry into force, on 25 May 2018, of Regulation 2016/679, to which part of the first question refers, it was likely that that regulation would need to be taken into account when disposing of the case in the main proceedings. In addition, as the German Government stated at the hearing before the Court, it is not inconceivable that, in so far as the proceedings brought by the Federation seek an order that Planet49 refrain from future action, Regulation 2016/679 would be applicable ratione temporis to the case in the main proceedings according to the national case-law regarding the relevant legal position on injunctions, which is for the referring court to ascertain (see, as regards an action for a declaratory judgment, judgment of 16 January 2019, Deutsche Post, C‑496/17, EU:C:2019:26, paragraph 38).42In those circumstances, and in the light of the fact that, under Article 94(2) of Regulation 2016/679, the references to Directive 95/46 in Directive 2002/58 are to be construed as references to that regulation, it is not inconceivable, in the present case, that Directive 2002/58 applies both to Directive 95/46 and Regulation 2016/679, according to the nature of the Federation’s pleas and the relevant time.43The questions referred must therefore be answered having regard to both Directive 95/46 and Regulation 2016/679. Question 1(a) and (c) 44By Question 1(a) and (c), the referring court asks, in essence, whether Article 2(f) and Article 5(3) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46 and Article 6(1)(a) of Regulation 2016/679, must be interpreted as meaning that the consent referred to in those provisions is validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent.45As a preliminary matter, it is important to note that, according to the order for reference, the cookies likely to be placed on the terminal equipment of a user participating in the promotional lottery organised by Planet49 contain a number which is assigned to the registration data of that user, who must enter his or her name and address in the registration form for the lottery. The referring court adds that, by linking that number with that data, a connection between a person to the data stored by the cookies arises if the user uses the internet, such that the collection of that data by means of cookies is a form of processing of personal data. Those statements were confirmed by Planet49, which noted in its written observations that the consent to which the second checkbox refers is intended to authorise the collection and processing of personal data, not anonymous data.46On the basis of those explanations, it should be noted that, in accordance with Article 5(3) of Directive 2002/58, Member States are to ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a user is only allowed on condition that the user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46, inter alia, about the purposes of the processing.47In that regard, it should be noted that, the need for a uniform application of EU law and the principle of equality require that the wording 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 must normally be given an autonomous and uniform interpretation throughout the European Union (judgments of 26 March 2019, SM (Child placed under Algerian kafala), C‑129/18, EU:C:2019:248, paragraph 50, and of 11 April 2019, Tarola, C‑483/17, EU:C:2019:309, paragraph 36).48In addition, according to settled case-law of the Court, the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its legislative context and the provisions of EU law as a whole. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 47 and the case-law cited).49As regards the wording of Article 5(3) of Directive 2002/58, it should be made clear that, although that provision states expressly that the user must have ‘given his or her consent’ to the storage of and access to cookies on his or her terminal equipment, that provision does not, by contrast, indicate the way in which that consent must be given. The wording ‘given his or her consent’ does, however, lend itself to a literal interpretation according to which action is required on the part of the user in order to give his or her consent. In that regard, it is clear from recital 17 of Directive 2002/58 that, for the purposes of that directive, a user’s consent may be given by any appropriate method enabling a freely given specific and informed indication of the user’s wishes, including ‘by ticking a box when visiting an internet website’.50As regards the legislative context of which Article 5(3) of Directive 2002/58 forms a part, Article 2(f) of that directive, which defines ‘consent’, for the purposes thereof, refers, in that regard, to the ‘data subject’s consent’ set out in Directive 95/46. Recital 17 of Directive 2002/58 states that, for the purposes of that directive, consent of a user should have the same meaning as the data subject’s consent as defined and further specified in Directive 95/46.51Article 2(h) of Directive 95/46 defines ‘the data subject’s consent’ as being ‘any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed’.52Thus, as the Advocate General stated in point 60 of his Opinion, the requirement of an ‘indication’ of the data subject’s wishes clearly points to active, rather than passive, behaviour. However, consent given in the form of a preselected tick in a checkbox does not imply active behaviour on the part of a website user.53That interpretation is borne out by Article 7 of Directive 95/46, which sets out an exhaustive list of cases in which the processing of personal data can be regarded as lawful (see, to that effect, judgments of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 30, and of 19 October 2016, Breyer, C‑582/14, EU:C:2016:779, paragraph 57).54In particular, Article 7(a) of Directive 95/46 provides that the data subject’s consent may make such processing lawful provided that the data subject has given his or her consent ‘unambiguously’. Only active behaviour on the part of the data subject with a view to giving his or her consent may fulfil that requirement.55In that regard, it would appear impossible in practice to ascertain objectively whether a website user had actually given his or her consent to the processing of his or her personal data by not deselecting a pre-ticked checkbox nor, in any event, whether that consent had been informed. It is not inconceivable that a user would not have read the information accompanying the preselected checkbox, or even would not have noticed that checkbox, before continuing with his or her activity on the website visited.56Lastly, as regards the origins of Article 5(3) of Directive 2002/58, the initial wording of that provision provided only for the requirement that the user had the ‘right to refuse’ the storage of cookies, after having received, pursuant to Directive 95/46, clear and comprehensive information, inter alia, regarding the purpose of the data processing. Directive 2009/136 introduced a substantive amendment to the wording of that provision, by replacing that wording with ‘given his or her consent’. The legislative origins of Article 5(3) of Directive 2002/58 thus seem to indicate that henceforth user consent may no longer be presumed but must be the result of active behaviour on the part of the user.57As regards the foregoing, the consent referred to in Article 2(f) and Article 5(3) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46, is therefore not validly constituted if the storage of information, or access to information already stored in an website user’s terminal equipment, is permitted by way of a checkbox pre-ticked by the service provider which the user must deselect to refuse his or her consent.58It should be added that the indication of the data subject’s wishes referred to in Article 2(h) of Directive 95/46 must, inter alia, be ‘specific’ in the sense that it must relate specifically to the processing of the data in question and cannot be inferred from an indication of the data subject’s wishes for other purposes.59In the present case, contrary to what Planet49 claims, the fact that a user selects the button to participate in the promotional lottery organised by that company cannot therefore be sufficient for it to be concluded that the user validly gave his or her consent to the storage of cookies.60A fortiori, the preceding interpretation applies in the light of Regulation 2016/679.61As the Advocate General stated, in essence, in point 70 of his Opinion, the wording of Article 4(11) of Regulation 2016/679, which defines the ‘data subject’s consent’ for the purposes of that regulation and, in particular, of Article 6(1)(a) thereof, to which Question 1(c) refers, appears even more stringent than that of Article 2(h) of Directive 95/46 in that it requires a ‘freely given, specific, informed and unambiguous’ indication of the data subject’s wishes in the form of a statement or of ‘clear affirmative action’ signifying agreement to the processing of the personal data relating to him or her.62Active consent is thus now expressly laid down in Regulation 2016/679. It should be noted in that regard that, according to recital 32 thereof, giving consent could include ticking a box when visiting an internet website. On the other hand, that recital expressly precludes ‘silence, pre-ticked boxes or inactivity’ from constituting consent.63It follows that the consent referred to in Article 2(f) and in Article 5(3) of Directive 2002/58, read in conjunction with Article 4(11) and Article 6(1)(a) of Regulation 2016/679, is not validly constituted if the storage of information, or access to information already stored in the website user’s terminal equipment, is permitted by way of a pre-ticked checkbox which the user must deselect to refuse his or her consent.64Lastly, it should be noted that the referring court has not referred to the Court the question whether it is compatible with the requirement that consent be ‘freely given’, within the meaning of Article 2(h) of Directive 95/46 and of Article 4(11) and Article 7(4) of Regulation 2016/679, for a user’s consent to the processing of his personal data for advertising purposes to be a prerequisite to that user’s participation in a promotional lottery, as appears to be the case in the main proceedings, according to the order for reference, at least as far as concerns the first checkbox. In those circumstances, it is not appropriate for the Court to consider that question.65In the light of the foregoing considerations, the answer to Question 1(a) and (c) is that Article 2(f) and Article 5(3) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46 and Article 4(11) and Article 6(1)(a) of Regulation 2016/679, must be interpreted as meaning that the consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent. Question 1(b) 66By Question 1(b), the referring court wishes to know, in essence, whether Article 2(f) and Article 5(3) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46 and Article 6(1)(a) of Regulation 2016/679, must be interpreted differently according to whether or not the information stored or accessed on a website user’s terminal equipment is personal data within the meaning of Directive 95/46 and Regulation 2016/679.67As stated in paragraph 45 above, according to the order for reference, the storage of cookies at issue in the main proceedings amounts to a processing of personal data.68That being the case, the Court notes, in any event, that Article 5(3) of Directive 2002/58 refers to ‘the storing of information’ and ‘the gaining of access to information already stored’, without characterising that information or specifying that it must be personal data.69As the Advocate General stated in point 107 of his Opinion, that provision aims to protect the user from interference with his or her private sphere, regardless of whether or not that interference involves personal data.70That interpretation is borne out by recital 24 of Directive 2002/58, according to which any information stored in the terminal equipment of users of electronic communications networks are part of the private sphere of the users requiring protection under the European Convention for the Protection of Human Rights and Fundamental Freedoms. That protection applies to any information stored in such terminal equipment, regardless of whether or not it is personal data, and is intended, in particular, as is clear from that recital, to protect users from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge.71In the light of the foregoing considerations, the answer to Question 1(b) is that Article 2(f) and Article 5(3) of Directive 2002/58, read in conjunction with Article 2(h) of Directive 95/46 and Article 4(11) and Article 6(1)(a) of Regulation 2016/679, are not to be interpreted differently according to whether or not the information stored or accessed on a website user’s terminal equipment is personal data within the meaning of Directive 95/46 and Regulation 2016/679. Question 2 72By Question 2, the referring court asks, in essence, whether Article 5(3) of Directive 2002/58 must be interpreted as meaning that the information that the service provider must give to a website user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies.73As has already been made clear in paragraph 46 above, Article 5(3) of Directive 2002/58 requires that the user concerned has given his or her consent, having been provided with clear and comprehensive information, ‘in accordance with Directive [95/46]’, inter alia, about the purposes of the processing.74As the Advocate General stated in point 115 of his Opinion, clear and comprehensive information implies that a user is in a position to be able to determine easily the consequences of any consent he or she might give and ensure that the consent given is well informed. It must be clearly comprehensible and sufficiently detailed so as to enable the user to comprehend the functioning of the cookies employed.75In a situation such as that at issue in the main proceedings, in which, according to the file before the Court, cookies aim to collect information for advertising purposes relating to the products of partners of the organiser of the promotional lottery, the duration of the operation of the cookies and whether or not third parties may have access to those cookies form part of the clear and comprehensive information which must be provided to the user in accordance with Article 5(3) of Directive 2002/58.76In that regard, it should be made clear that Article 10 of Directive 95/46, to which Article 5(3) of Directive 2002/58 and Article 13 of Regulation 2016/679 refer, lists the information with which the controller must provide a data subject from whom data relating to himself are collected.77That information includes, inter alia, under Article 10 of Directive 95/46, in addition to the identity of the controller and the purposes of the processing for which the data are intended, any further information such as the recipients or categories of recipients of the data in so far as such further information is necessary, having regard to the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject.78Although the duration of the processing of the data is not included as part of that information, it is, however, clear from the words ‘at least’ in Article 10 of Directive 95/46 that that information is not listed exhaustively. Information on the duration of the operation of cookies must be regarded as meeting the requirement of fair data processing provided for in that article in that, in a situation such as that at issue in the main proceedings, a long, or even unlimited, duration means collecting a large amount of information on users’ surfing behaviour and how often they may visit the websites of the organiser of the promotional lottery’s advertising partners.79That interpretation is borne out by Article 13(2)(a) of Regulation 2016/679, which provides that the controller must, in order to ensure fair and transparent processing, provide the data subject with information relating, inter alia, to the period for which the personal data will be stored, or if that is not possible, to the criteria used to determine that period.80As to whether or not third parties may have access to cookies, that is information included within the information referred to in Article 10(c) of Directive 95/46 and in Article 13(1)(e) of Regulation 2016/679, since those provisions expressly refer to the recipients or categories of recipients of the data.81In the light of the foregoing considerations, the answer to Question 2 is that Article 5(3) of Directive 2002/58 must be interpreted as meaning that the information that the service provider must give to a website user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies. Costs 82Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 2(f) and of Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Article 4(11) and Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 (General Data Protection Regulation), must be interpreted as meaning that the consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent. 2. Article 2(f) and Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, read in conjunction with Article 2(h) of Directive 95/46 and Article 4(11) and Article 6(1)(a) of Regulation 2016/679, are not to be interpreted differently according to whether or not the information stored or accessed on a website user’s terminal equipment is personal data within the meaning of Directive 95/46 and Regulation 2016/679. 3. Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, must be interpreted as meaning that the information that the service provider must give to a website user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies. [Signatures]( *1 ) Language of the case: German. | 3958a-5e357de-462a | EN |
The General Court confirms the Commission’s decision to register the proposed European citizens’ initiative ‘Minority SafePack - one million signatures for diversity in Europe’ | 24 September 2019 ( *1 )(Law governing the institutions – European citizens’ initiative – Protection of national and linguistic minorities – Strengthening of cultural and linguistic diversity – Registration in part – Principle of conferral – Commission not manifestly lacking legislative powers – Obligation to state reasons – Article 5(2) TEU – Article 4(2)(b) of Regulation (EU) No 211/2011 – Article 296 TFEU)In Case T‑391/17, Romania, represented initially by R. Radu, C.-M. Florescu, E. Gane and L. Liţu, and subsequently by C.-M. Florescu, E. Gane, L. Liţu and C.-R. Canţăr, acting as Agents,applicant,v European Commission, represented by H. Krämer, L. Radu Bouyon and H. Stancu, acting as Agents,defendant,supported by Hungary, represented by M. Fehér, G. Koós and G. Tornyai, acting as Agents,intervener,APPLICATION pursuant to Article 263 TFEU seeking annulment of Commission Decision (EU) 2017/652 of 29 March 2017 on the proposed citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’ (OJ 2017 L 92, p. 100),THE GENERAL COURT (Second Chamber),composed of M. Prek, President, E. Buttigieg (Rapporteur) and M.J. Costeira, Judges,Registrar: I. Dragan, Administrator,having regard to the written part of the procedure and further to the hearing on 9 April 2019,gives the following Judgment Background to the dispute 1On 15 July 2013, the Bürgerausschuss für die Bürgerinitiative Minority SafePack – one million signatures for diversity in Europe (citizens’ committee for the citizens’ initiative ‘Minority SafePack – one million signatures for diversity in Europe’ (‘the committee’ or the ‘organisers’)) submitted to the European Commission the proposal for a European citizens’ initiative (the ‘ECI’) entitled ‘Minority SafePack– one million signatures for diversity in Europe’ (‘the proposed ECI’).2By Decision C(2013) 5969 final of 13 September 2013, the Commission refused the application for registration of the proposed ECI on the ground that it manifestly fell outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties.3The committee brought proceedings before the General Court, which, by its judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission (T‑646/13, EU:T:2017:59), annulled Commission Decision C(2013) 5969 final on the ground that the Commission had failed to comply with its obligation to state reasons.4On 29 March 2017, the Commission adopted Decision (EU) 2017/652 on the proposed citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’ (OJ 2017 L 92, p. 100; ‘the contested decision’), Article 1(1) of which provides:‘1. The proposed citizens’ initiative entitled “Minority SafePack – one million signatures for diversity in Europe” is hereby registered.2. Statements of support for this proposed citizens’ initiative may be collected, based on the understanding that it aims at proposals from the Commission for:–a recommendation of the Council “on the protection and promotion of cultural and linguistic diversity in the Union”,a decision or a regulation of the European Parliament and of the Council, the subject matter of which is to adapt “funding programmes so that they become accessible for small regional and minority language communities”,a decision or a regulation of the European Parliament and of the Council, the subject matter of which is to create a centre for linguistic diversity that will strengthen awareness of the importance of regional and minority languages and will promote diversity at all levels and be financed mainly by the European Union,a regulation adapting the general rules applicable to the tasks, priority objectives and the organisation of the Structural Funds in such a way that account is taken of the protection of minorities and the promotion of cultural and linguistic diversity provided that the actions to be financed lead to the strengthening of the economic, social and territorial cohesion of the European Union,a regulation of the European Parliament and of the Council, the subject matter of which is to change the regulation relating to the “Horizon 2020” programme for the purposes of improving research on the added value that national minorities and cultural and linguistic diversity may bring to social and economic development in regions of the European Union,the amendment of the EU legislation in order to guarantee approximately equal treatment for stateless persons and citizens of the European Union,a regulation of the European Parliament and of the Council, in order to introduce a unitary copyright so that the whole European Union can be considered an internal market in the field of copyright,an amendment of Directive 2010/13/EU [of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010 L 95, p. 1)], for the purpose of ensuring the freedom to provide services and the reception of audiovisual content in regions where national minorities reside,a Council regulation or decision, with a view to the block exemption of projects promoting national minorities and their culture from the procedure provided for in Article 108(2) TFEU.’5As set out in recital 2 of the contested decision, the subject matter of the proposed ECI is as follows: ‘We call upon the [European Union] to improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union’.6As set out in recital 3 of the contested decision, the objectives of the proposed ECI are as follows:‘We call on the [European Union] to adopt a set of legal acts to improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union. [These acts] shall include policy actions in the areas of regional and minority languages, education and culture, regional policy, participation, equality, audiovisual and other media content and also regional (state) support.’7Recital 4 of the contested decision states that the proposed ECI refers specifically in its annex to 11 EU legal acts for which it aims, in essence, at proposals from the Commission, namely:(a)a recommendation of the Council of the European Union ‘on the protection and promotion of cultural and linguistic diversity in the Union’ on the basis of the second indent of Article 167(5) TFEU and the second indent of Article 165(4) TFEU;(b)a decision or a regulation of the European Parliament and of the Council on the basis of the first indent of Article 167(5) TFEU and the first indent of Article 165(4) TFEU, the subject matter of which is to adapt ‘funding programmes so that they become accessible for small regional and minority language communities’;(c)a decision or a regulation of the Parliament and of the Council on the basis of the first indent of Article 167(5) TFEU and the first indent of Article 165(4) TFEU, the subject matter of which is to create a centre for linguistic diversity that will strengthen awareness of the importance of regional and minority languages and will promote diversity at all levels and be financed mainly by the European Union;(d)a regulation of the Parliament and of the Council on the basis of Articles 177 TFEU and 178 TFEU, the subject matter of which is to adapt the common provisions relating to EU regional funds in such a way that the protection of minorities and the promotion of cultural and linguistic diversity are included therein as thematic objectives;(e)a regulation of the Parliament and of the Council on the basis of Articles 173(3) TFEU and 182(1) TFEU, the subject matter of which is to change the regulation relating to the ‘Horizon 2020’ programme for the purposes of improving research on the added value that national minorities and cultural and linguistic diversity may bring to social and economic development in regions of the European Union;(f)a Council directive, regulation or decision on the basis of Article 20(2) TFEU and Article 25 TFEU, for the purpose of strengthening within the European Union the place of citizens belonging to a national minority, with the aim of ensuring that their legitimate concerns are taken into consideration in the election of Members of the Parliament;(g)effective measures to address discrimination and to promote equal treatment, including for national minorities, in particular through a revision of the existing Council directives on the subject of equal treatment, on the basis of Article 19(1) TFEU;(h)the amendment of the EU legislation in order to guarantee approximately equal treatment for stateless persons and citizens of the European Union, on the basis of Article 79(2) TFEU;(i)a regulation of the Parliament and of the Council on the basis of Article 118 TFEU, in order to introduce a unitary copyright so that the whole of the European Union can be considered an internal market in the field of copyright;(j)an amendment to Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010 L 95, p. 1), for the purpose of ensuring the freedom to provide services and the reception of audiovisual content in regions where national minorities reside, on the basis of Article 53(1) TFEU and Article 63 TFEU; and(k)a Council regulation or decision, with a view to the block exemption of projects promoting national minorities and their culture, on the basis of Article 109 TFEU, Article 108(4) TFEU or Article 107(3)(e) TFEU.8Recital 5 of the contested decision states that EU legal acts for the purpose of implementing the Treaties can be adopted:in the areas of improvement of the knowledge and dissemination of the culture and history of the European peoples; conservation and safeguarding of cultural heritage of European significance; non-commercial cultural exchanges; and artistic and literary creation, including in the audiovisual sector;in the fields of developing the European dimension in education, including, inter alia, through the teaching and dissemination of the languages of the Member States;in defining the tasks, priority objectives and organisation of the Structural Funds provided that the actions to be financed lead to the strengthening of the economic, social and territorial cohesion of the European Union;on specific measures in support of action taken in the Member States to achieve the objectives of speeding up the adjustment of industry to structural changes, encouraging an environment favourable to initiative and to the development of undertakings throughout the European Union, particularly small and medium-sized undertakings, encouraging an environment favourable to cooperation between undertakings, fostering better exploitation of the industrial potential of policies of innovation, research and technological development;in the area of research and technological development in the form of a multiannual framework programme establishing the scientific and technological objectives to be achieved by the European Union’s activities and fixing the relevant priorities, indicating the broad lines of such activities and fixing the maximum overall amount and the detailed rules for EU financial participation in the framework programme and the respective shares in each of the activities provided for;in the area of rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States of the European Union;for the creation of European intellectual-property rights to provide uniform protection of intellectual-property rights throughout the European Union and for the setting up of centralised EU-wide authorisation, coordination and supervision arrangements;for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons;for determining the categories of aid granted by States exempted from the procedure set out in Article 108(2) TFEU.9In recital 6 of the contested decision, the Commission infers from the earlier recitals that the proposed ECI, inasmuch as it aims at proposals from the Commission for EU legal acts for the purpose of implementing the Treaties, as referred to in recital 4(a) to (e) and (h) to (k) of the contested decision, does not manifestly fall outside the framework of its powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties under Article 4(2)(b) of Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1).10By contrast, so far as concerns the other two proposals referred to in the proposed ECI, namely those referred to in recital 4(f) and (g) of the contested decision, the Commission concludes in recitals 7 to 9 of the contested decision that the proposed ECI manifestly falls outside the framework of its powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties pursuant to Article 4(2)(b) of Regulation No 211/2011. Procedure and forms of order sought 11By application lodged at the Court Registry on 28 June 2017, Romania brought the present action.12By separate document lodged at the Court Registry on the same day, Romania lodged an application for interim measures under Articles 278 and 279 TFEU requesting the Court to order suspension of the operation of the contested decision. That application was rejected by order of 13 November 2017, Romania v Commission (T‑391/17 R, not published, EU:T:2017:805).13By decision of the President of the Second Chamber of 27 September 2017, the Slovak Republic was granted leave to intervene in support of the form of order sought by Romania. By letter lodged at the Court Registry on 18 October 2017, the Slovak Republic informed the Court that it was withdrawing its intervention, with the result that, by order of 16 November 2017, Romania v Commission (T‑391/17, not published, EU:T:2017:823), it was removed from the present case as an intervener.14By decision of the President of the Second Chamber of 15 November 2017, Hungary was granted leave to intervene in support of the form of order sought by the Commission. Hungary’s statement in intervention was lodged after the expiry of the period set by the President, and for that reason has not been included in the file.15The committee’s application to intervene was rejected by order of 16 November 2017, Romania v Commission (T‑391/17, not published, EU:T:2017:831), confirmed on appeal by order of 5 September 2018, Minority SafePack – one million signatures for diversity in Europe v Romania and Commission (C‑717/17 P(I), not published, EU:C:2018:691).16Romania claims that the Court should:annul the contested decision;order the Commission to pay the costs.17The Commission contends that the Court should:dismiss the action as unfounded;order Romania to pay the costs. Law Preliminary observations 18During the hearing, the Commission, in response to the questions put by the Court, challenged the admissibility of the action by raising, first, the late stage at which the action had been brought and, second, the non-challengeable nature of the contested decision.19It should be recalled that the Courts of the European Union are entitled to assess, in accordance with the circumstances of each case, whether the proper administration of justice justifies dismissal of the action on the merits without first a ruling on the grounds of inadmissibility raised by the defendant (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52; of 23 March 2004, France v Commission, C‑233/02, EU:C:2004:173, paragraph 26; and of 15 June 2005, Regione autonoma della Sardegna v Commission, T‑171/02, EU:T:2005:219, paragraph 155).20In the circumstances of the present case, the Court considers that, in the interests of procedural economy, it is appropriate at the outset to examine the pleas in law invoked by Romania, without first ruling on the admissibility of the action, since the action is, in any event and for the reasons set out below, unfounded. Substance 21In support of its action, Romania relies on two pleas in law, the first alleging infringement of Article 5(2) TEU and of Article 4(2)(b) of Regulation No 211/2011, the second alleging failure to take account of the second paragraph of Article 296 TFEU. The first plea, alleging infringement of Article 5(2) TEU and of Article 4(2)(b) of Regulation No 211/2011 22In the first place, Romania claims that the analysis of the information and detailed measures set out in the annex to the proposed ECI reveals that, notwithstanding the stated objectives, the proposed ECI in reality focuses exclusively on improving the protection of the rights of persons belonging to national and linguistic minorities, even though it has no direct link with cultural diversity within the meaning of Article 3 TEU and Article 167 TFEU, the strengthening of which is at most a consequence inherent in improved protection of the rights of persons belonging to national and linguistic minorities.23On the one hand, as regards the strengthening of cultural diversity under Article 167(1) and (4) TFEU, Romania asserts that the European Union is competent to support, coordinate and complement, but is not competent, either on an exclusive basis or on a basis shared with the Member States, to promote a policy the sole purpose of which is cultural diversity. Under Article 167(4) TFEU, a legislative act of the European Union cannot focus exclusively on cultural diversity, but the European Union must take this into account and promote it in the context of its policies. On the other hand, as regards the protection of the rights of persons belonging to national and linguistic minorities, Romania asserts that the European Union does not have express competence to legislate and that this area remains within the exclusive competence of the Member States, as is evident from, inter alia, Articles 2, 3, 7 and 8 TEU, Article 4(2) TFEU and Decision C(2013) 5969 final referred to in paragraph 2 above.24In the second place, Romania claims that the concrete action areas referred to in the proposed ECI and presented in the annex to it must be analysed objectively in the light of their context, which is defined by the subject matter and objectives of the proposed ECI. In its view, it is not sufficient for the proposed acts to form part of an area that comes within the European Union’s sphere of competence. It continues that, since, in accordance with the principle of conferral set out in Article 5(2) TEU, the European Union’s powers may be exercised only in order to achieve the objectives established in the Treaties, the acts at issue must also, in their content and their objectives, be designed to contribute towards achieving the objectives established for EU action in the relevant area of competence. It argues that it is not apparent from any provision of the Treaties that the policy objectives in the areas in which a request for the adoption of EU legal acts has been submitted are designed to bring about any type of action concerning the protection of national minorities. The applicant continues that since, therefore, by its subject matter and objectives; the proposed ECI manifestly falls outside the sphere of EU competence, no measure which may be proposed in order to achieve those objectives can be regarded as coming within that sphere of competence.25In the third place, Romania claims that none of the measures listed in the additional information falls outside the ECI’s subject matter or its objectives as set out in the required information, with the result that an individual examination cannot lead to any other conclusion as to the powers of the European Union. In this respect, it continues, the partial registration of the proposed ECI is in this case of no consequence, as the Commission can neither act upon an ECI in order to achieve objectives other than those indicated by the organisers without compromising the autonomy of the latter, nor can it unreasonably distort the stated subject matter of the ECI.26In the fourth and final place, Romania claims that, with regard more particularly to the concrete areas referred to in the proposed ECI, so far as concerns, first, the proposed measures relating to languages, education and culture, the organisers erred in basing the proposals relating to ‘languages’ in section 2 of the proposed ECI on the second indent of Article 167(5) TFEU and on the second indent of Article 165(4) TFEU, as those articles contain no provisions relating to ‘languages’ or ‘linguistic policy’. Furthermore, it argues, none of the objectives pursued by Articles 165 to 167 TFEU, which include the development of quality education, the contribution to the flowering of the cultures of the Member States while respecting their national and regional diversity or the improvement of the knowledge and dissemination of the culture and history of the European peoples, refers to persons belonging to national or linguistic minorities. Therefore, it continues, a specific measure in the field of ‘education’ or ‘culture’, intended to support persons belonging to those minorities, would also have no legal basis in the Treaties, Article 3 TEU being unable to remedy this situation. In its view, the power to adopt measures in the field of the linguistic identity of persons belonging to national minorities is a matter for the Member States, regard being had to the fact that Article 10 of the Council of Europe Framework Convention for the Protection of National Minorities, adopted on 10 November 1994, to which certain Member States of the European Union are parties, is applicable in this context.27Secondly, so far as concerns the field of regional policy, and more specifically the proposals based, on the one hand, on Articles 177 and 178 TFEU, seeking to adapt the provisions relating to the European Union’s regional funds and, on the other hand, on Article 173(3) and Article 182(1) TFEU, with a view to amending Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ 2013 L 347, p. 104), Romania asserts that, in accordance with Article 174 TFEU, importance attaches to the criterion of the development of the different regions for the purposes of the cohesion policy and not the national, ethnic, cultural, religious or linguistic characteristics of the regions, especially since there is no clear and generally valid link between the ethnic composition of particular regions and their level of development. It continues that an act adopted on the basis of Article 177 TFEU cannot set objectives in addition to those laid down in Article 174 TFEU. The same, it submits, applies to the ‘Horizon 2020’ programme, since the objectives of the specific measures listed in Article 173 TFEU (‘Industry’) and Article 179 TFEU (‘Research and technological development and space’) have no connection with the protection of the rights of persons belonging to national minorities. Romania adds that there is no basis, within the framework of the European Union’s competence, for adopting an act which, as in the present case, is contrary to the values enshrined in Article 2 TEU, by introducing indirect discrimination on the basis of ethnicity and which would raise the problem of exceeding the limits, established in accordance with international law, of the parent State’s involvement in the protection of its national minority located within the territory of another State.28Thirdly, so far as concerns the measures proposed regarding stateless persons with a view to ensuring equal treatment between stateless persons and citizens of the European Union, Romania claims that reliance on the criterion of membership of a national minority in order to grant exceptional status to a specific category, such as stateless persons, does not correspond to the objectives set out in Article 79(1) TFEU. Romania asserts that since the proposed ECI proposes merely that more favourable treatment be granted to persons without nationality, it does not correspond to the subject matter of that proposed ECI and could at most be the subject of a separate ECI. It continues that, for the purposes of Title V of the FEU Treaty, which includes Article 79 TFEU, stateless persons are treated in the same way as third-country nationals, as follows from Article 67(2) TFEU. From this point of view, in its opinion, the Treaties also do not provide a legal basis for adopting acts which seek to ensure approximately equal treatment between persons without nationality and EU nationals.29Fourthly, so far as concerns the proposal to establish a unitary copyright system within the European Union, on the basis of Article 118 TFEU, Romania notes that the purpose of the proposal appears to be to facilitate the use, by persons belonging to minorities, of goods and services in their own language, which is often also that of a neighbouring country, with the result that the proposal distances itself from the purpose of the measures referred to in Article 118 TFEU and also raises the problem, referred to previously, of the involvement of the parent State in the protection of persons belonging to national minorities. According to the recommendations made on these questions at the international level, Romania’s view is that preferential treatment by the parent State should be granted on the basis of a bilateral approach with the consent of the competent State and should be limited to the ‘fields of education and culture, in so far as it pursues the legitimate aim of encouraging cultural ties and [the preferential treatment] is proportionate to that aim’. Finally, it claims that the difficulties surrounding the language regime for the European patent point to the difficulties involved in creating a unified system of intellectual-property rights throughout Europe.30Fifthly, so far as concerns the proposal to amend Directive 2010/13, Romania asserts that granting exceptional treatment to ‘regions where national minorities live’ would be contrary to the values enshrined in Article 2 TEU, would constitute direct discrimination in terms of the free movement of services, which is prohibited by Article 56 TFEU, and would also raise the problem referred to in paragraph 29 above of the involvement of the parent State in the protection of persons belonging to national minorities.31Sixthly and finally, so far as concerns the proposal based on Article 109, Article 108(4) or Article 107(3)(d) TFEU, which concern the field of State aid, Romania asserts that the proposed exemption runs counter to the objectives of the measures, which are limited to the fields of education, culture, languages and religion, available under international law in relation to persons belonging to national minorities. The granting of ‘cross-border’ State aid by the parent State to legal persons pursuing a commercial objective with the aim of promoting the rights of persons belonging to national minorities of the neighbouring State would, it submits, be incompatible with the principles of international law relating to the involvement of parent States in the protection of persons belonging to national minorities located in the territory of other States, would hinder competition and would lead to discrimination based on ethnicity criteria between citizens of the European Union and would therefore be contrary to the values of the European Union.32The Commission, supported by Hungary, disputes the arguments put forward by Romania.33As a preliminary point, it should be noted that under Article 11(4) TEU, introduced by the Lisbon Treaty, EU citizens may, subject to certain conditions, take the initiative of inviting the Commission, within the framework of its powers, to submit an appropriate proposal on matters in regard to which those citizens consider that a legal act of the European Union is required for the purpose of implementing the Treaties (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 23).34The right to adopt an ECI constitutes, in the same way as, inter alia, the right to petition the European Parliament, an instrument relating to the right of citizens to participate in the democratic life of the European Union, provided for in Article 10(3) TEU, in that it allows them to apply directly to the Commission in order to make to it a request inviting it to submit a proposal for a legal act of the European Union, for the purposes of the application of the Treaties (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 24). As stated in recital 1 of Regulation No 211/2011, this right is intended to reinforce European citizenship and to enhance the democratic functioning of the European Union (judgments of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission, T‑646/13, EU:T:2017:59, paragraph 18, and of 10 May 2017, Efler v Commission, T‑754/14, EU:T:2017:323, paragraph 24).35In accordance with the first paragraph of Article 24 TFEU, the procedures and conditions required for submitting an ECI have been specified in Regulation No 211/2011. Article 4 of that regulation lays down the conditions under which the Commission may register a proposed ECI (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 25).36Thus, as regards the process of registering a proposed ECI, it is, under Article 4 of Regulation No 211/2011, for the Commission to examine whether such a proposal fulfils the conditions laid down in, inter alia, paragraph 2(b) of that article, which envisages that a proposed ECI should be registered by the Commission, to the extent to which it ‘does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’ (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraphs 26 and 45).37As is apparent from the case-law, in accordance with Article 4(1) and (2) of Regulation No 211/2011, information relating to the subject matter and objectives of the proposed ECI provided by the organisers of the ECI, compulsorily or on an optional basis, in accordance with Annex II to that regulation must be taken into consideration, in accordance with (judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 45, and of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraph 51).38The ‘information set out in Annex II’ to Regulation No 211/2011, to which Article 4 of that regulation refers, is not limited to the minimum information which, pursuant to that annex, must be placed on the register. The right, recognised in Annex II to Regulation No 211/2011, of the organisers of the proposed ECI to provide additional information, or even a draft EU legal act, has as a corollary the Commission’s obligation to examine that information in the same way as any other information provided pursuant to that annex, in accordance with the principle of sound administration, recalled in recital 10 of Regulation No 211/2011 and including the duty of the competent institution to examine carefully and impartially all relevant features of the case. Therefore, in order to assess whether a proposal for an ECI fulfils the conditions for registration set out in Article 4(2)(b) of Regulation No 211/2011, the Commission must examine the additional information (judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission, T‑646/13, EU:T:2017:59, paragraphs 30 to 32; see also, to this effect, judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraphs 47, 48 and 50, and of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraphs 52 to 54).39Moreover, in accordance with the objectives pursued by the ECI, as set out in recitals 1 and 2 of Regulation No 211/2011, consisting, inter alia, in encouraging participation by citizens and making the European Union more accessible, the registration condition in Article 4(2)(b) of that regulation must be interpreted and applied by the Commission, when it receives a proposed ECI, in such a way as to ensure easy accessibility to the ECI (judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 49, and of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraphs 53 and 64).40Consequently, it is only if a proposed ECI, in view of its subject matter and objectives as reflected in the mandatory and, where appropriate, additional information that has been provided by the organisers pursuant to Annex II to Regulation No 211/2011, manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties that the Commission is entitled to refuse to register the proposed ECI pursuant to Article 4(2)(b) of that regulation (judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 50, and of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraph 54).41In this regard, it follows from the wording of Article 4(2)(b) of Regulation No 211/2011 that the Commission must carry out an initial examination of the information available to it in order to determine whether the proposed ECI does not manifestly fall outside the framework of its powers, while provision is made for a more comprehensive examination to be carried out if the proposal is registered. Indeed, Article 10(1)(c) of that regulation provides that, when the Commission receives the ECI, it is to set out within three months in a communication its legal and political conclusions on the ECI, the action that it intends to take, if any, and its reasons for taking or not taking that action (judgment of 19 April 2016, Costantini v Commission, T‑44/14, EU:T:2016:223, paragraph 17). The decision to register a proposed ECI, which involves an initial legal assessment of it, is thus without prejudice to the Commission’s assessment, where appropriate, in the context of the communication adopted on the basis of Article 10(1)(c) of Regulation No 211/2011 and which fixes the Commission’s final position on whether or not to submit a proposal for a legal act in response to the ECI (see, to that effect, judgment of 23 April 2018, One of Us and Others v Commission, T‑561/14, currently under appeal, EU:T:2018:210, paragraphs 79 and 117).42As has also previously been held, where the Commission receives an application for registration of a proposed ECI, it is not for it to ascertain, at that stage, that proof has been provided of all the factual elements relied on, or that the reasoning behind the proposed ECI and the proposed measures is adequate. The Commission must confine itself to examining, for the purpose of assessing whether the condition of registration in Article 4(2)(b) of Regulation No 211/2011 is satisfied, whether from an objective point of view such measures, envisaged in the abstract, could be adopted on the basis of the Treaties, if it is not to fail to have regard to the objective of ensuring easy accessibility to the ECI (judgment of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraphs 62 and 64).43In the present case, in order to determine whether the Commission has correctly applied the condition set out in Article 4(2)(b) of Regulation No 211/2011, it is therefore necessary to examine whether, in the light of the proposed ECI and in the context of an initial examination of the information available to the Commission, the latter could, contrary to Romania’s assertion, have validly concluded at the registration stage that that proposal, in so far as it concerned proposals for legal acts such as those referred to in Article 1(2) of the contested decision envisaged in the abstract, did not manifestly fall outside the framework of its powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties.44It that respect, it should be recalled that, according to Article 5 TEU, the limits of EU powers are governed by the principle of conferral and that, according to Article 13(2) TEU, each institution must act within the limits of the powers conferred on it in the Treaties (see, to that effect, judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraphs 97 and 98, and of 19 April 2016, Costantini v Commission, T‑44/14, EU:T:2016:223, paragraph 16). The objective of democratic participation of EU citizens underlying the ECI mechanism cannot frustrate the principle of conferred powers and authorise the European Union to legislate in a field in which no power has been conferred on it (judgment of 19 April 2016, Costantini v Commission, T‑44/14, EU:T:2016:223, paragraph 53).45In accordance with equally settled case-law, the choice of the legal basis for a legal act of the European Union must rest on objective factors amenable to judicial review, which include the objective and content of the measure (see judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 67 and the case-law cited).46With regard to the subject matter and objectives of the proposals for acts to be submitted by the Commission, as listed in Article 1(2) of the contested decision, the proposed ECI states, as indicated in recitals 2 and 3 of the contested decision, that that proposal seeks the adoption of a series of legislative acts in order to improve the protection of persons belonging to national and linguistic minorities and to strengthen cultural and linguistic diversity in the European Union. These acts should, it is stated, include measures relating to regional and minority languages, education and culture, regional policy, equality, audiovisual and other media content and regional support. The annex to the proposed ECI refers explicitly to various legal acts in respect of which it invites the Commission to make proposals.47Contrary to Romania’s claims, the proposed ECI does not seek exclusively to ensure respect for the rights of persons belonging to national and linguistic minorities, but it also seeks to strengthen cultural and linguistic diversity in the European Union, as is apparent both from the subject matter and objectives set out in that proposal and from the consideration given to the various proposals for legal acts listed and explained in the annex to the proposed ECI, the organisers of which request that it be presented to the European Parliament and the Council.48In this context, it should be emphasised that, as stated in paragraph 37 above, the Commission is, for the purposes of registering a proposed ECI, required to take into account the subject matter and objectives of that proposal as reflected not only in the compulsory information, but also in the additional information provided by the organisers pursuant to Annex II to Regulation No 211/2011 (judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 45, and of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraphs 51 and 54).49In accordance with this case-law, following the judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission (T‑646/13, EU:T:2017:59), by which Decision C(2013) 5969 referred to in paragraph 2 above was annulled, the Commission carried out a fresh analysis of the proposed ECI on the basis of all the information submitted by the organisers, in particular taking into account the proposals for legal acts set out in the annex to the proposed ECI, which concluded that, inasmuch as the proposed ECI aimed at proposals from the Commission for 9 of the 11 proposals for EU legal acts referred to in recital 4(a) to (e) and (h) to (k) of the contested decision, it did not manifestly fall outside the framework of its powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties pursuant to Article 4(2)(b) of Regulation No 211/2011.50As has been stated in paragraph 47 above and as the Commission has correctly observed, the legal acts listed in the annex to the proposed ECI, which, according to the Commission, come within the framework of its powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties in the areas at issue, are manifestly intended to contribute, on the one hand, to achieving the general objective of ensuring respect for the rights of persons belonging to minorities, and, on the other hand, also in a direct fashion to attaining the general objective of respecting and promoting cultural and linguistic diversity in the European Union.51In this respect, it should be pointed out, first, that, in accordance with Article 2 TEU, respect for minority rights is one of the values on which the European Union is founded and, secondly, that the fourth subparagraph of Article 3(3) TEU states that the European Union must respect its rich cultural and linguistic diversity.52With more particular reference to the strengthening of cultural diversity, Article 167(4) TFEU provides that the European Union is to take cultural aspects into account in its action under other provisions of the Treaties in order, inter alia, to respect and promote the diversity of its cultures.53Contrary to what Romania claims, this does not mean that, by the contested decision, the Commission conceded that the European Union has general competence to legislate in the field of the protection of the rights of persons belonging to national minorities, but only that respect for the rights of minorities and the strengthening of cultural and linguistic diversity, as values and objectives of the European Union, must be taken into account in EU actions in the areas covered by the proposed ECI. As Romania itself has stated in this context, first, the fourth subparagraph of Article 3(3) TEU necessarily contains general guidance for EU action in other areas and, secondly, the respect for minorities referred to in Article 2 TEU forms an integral part of the European Union’s values which the Commission is required to respect in the framework of its powers.54It should be noted, particularly, in this regard that Romania is not challenging the competence of the European Union to adopt legal acts in the concrete action areas referred to in the legal acts listed in recital 4(a) to (e) and (h) to (k) of the contested decision (see paragraph 7 above) and which are set out in recital 5 thereof (see paragraph 8 above) in order to achieve the objectives of the provisions at issue. However, Romania takes the view that the European Union’s competence in these areas cannot allow the Commission to invite the Parliament and the Council to adopt legal acts with a view to achieving the objectives set out in the proposed ECI, which are fundamental elements defining the scope of the proposal, since those acts are not designed to contribute to the achievement of the objectives established for EU action in the relevant area of competence. If it were to do so, Romania argues, the Commission would be misdirecting the European Union’s powers in areas such as culture, education, regional policy and State aid from the purpose for which it was recognised in the Treaties as having those powers.55That argument cannot be accepted.56While, in the areas for which the European Union is competent, the Commission is entitled to submit, for the purpose of achieving the objectives specifically pursued by the relevant provisions of the FEU Treaty, proposals for legal acts which take account of the values and objectives which form the subject matter of the proposed ECI, nothing must prevent that institution, as a matter of principle, from submitting proposals for specific acts which, as in the present case, are deemed to supplement EU action in the areas for which it is competent in order to ensure respect for the values set out in Article 2 TEU and the rich cultural and linguistic diversity laid down in the fourth subparagraph of Article 3(3) TEU.57Inasmuch as Romania claims in this context that the exercise of the European Union’s powers is limited by Article 4(2) TEU, under which the European Union respects the national identity of Member States which is inherent in their fundamental political and constitutional structures, it is sufficient to note that Romania has failed to substantiate this claim and, in particular, to demonstrate that that provision necessarily precludes the adoption of measures such as those referred to in Article 1(2) of the contested decision, envisaged in the abstract, in so far as those measures seek to ensure, within the European Union’s fields of competence, respect by the European Union for the values on which it is based, such as respect for the rights of persons belonging to minorities, and to pursue the objectives set out in Article 3 TEU, which include respect for the rich cultural and linguistic diversity of the European Union.58To the extent to which Romania asserts that, by registering in part the proposed ECI, the Commission risks compromising the autonomy of the organisers and unduly altering the stated purpose of the proposed ECI, it is sufficient to note that the organisers have expressed, in paragraph 8 of that proposal entitled ‘Safeguard clause’, the desire that a separate determination be made in respect of each of the 11 proposals and that, if one of the proposals were to be deemed inadmissible, this should not affect the other proposals. Consequently, the registration in part of the proposed ECI, far from compromising the autonomy of the organisers and constituting an alteration of the stated purpose of that proposal, accords with a wish formally expressed by the organisers themselves in the proposed ECI in the event that the Commission were to conclude that certain of the measures at issue manifestly did not come within the scope of its powers.59Finally, Romania’s argument that the various proposals for legal acts at issue are in no way suitable for contributing to achieving the objectives established for EU action in the relevant area of competence must also be rejected.60First, with regard to the measures relating to ‘language’, ‘education’ and ‘culture’ which are referred to in section 2 of the proposed ECI, in respect of which the organisers suggest the first indent of each of Article 167(5) and Article 165(4) TFEU as the legal basis for adoption, the Commission rightly states that the concept of ‘culture’, which is the heading of Title XIII of the FEU Treaty, and includes Article 167 TFEU, refers in Article 167(4) TFEU to respect for cultural and linguistic diversity, which is established in Article 3 TEU as an EU objective, and that the concept of ‘education’, which is part of the heading of Title XII of the FEU Treaty, and includes Article 165 TFEU, encompasses matters linked to the promotion of linguistic diversity in the European Union, which is, moreover, a specific objective referred to in Article 5(1)(e) of Regulation (EU) No 1288/2013 of the European Parliament and of the Council of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport and repealing Decisions No 1719/2006/EC, No 1720/2006/EC and No 1298/2008/EC (OJ 2013 L 347, p. 50), adopted on the basis of Article 165(4) TFEU, as is the case for the acts relating to ‘language’ referred to in the proposed ECI.61In addition, pursuant to the second indent of Article 167(5) TFEU, the Council may adopt recommendations, on a proposal from the Commission, with a view to contributing to achieving the objectives referred to in that article, with the result that the proposal for an act seeking a ‘Council Recommendation “on the protection and promotion of cultural and linguistic diversity within the Union”’, envisaged in the abstract, cannot be regarded as manifestly exceeding the framework of the Commission’s powers to submit a proposal for a legal act for the purpose of applying that provision.62Finally, as stated in paragraph 56 above, the fact that Articles 165 to 167 TFEU do not include among their specific objectives the respect for persons belonging to national and linguistic minorities does not preclude the European Union from adopting, within the framework of the powers which it exercises on the basis of those provisions, measures which take account of such an objective.63Secondly, with regard to the measures relating to ‘regional policy’, which are referred to in sections 3.1 and 3.2 of the proposed ECI, and more specifically the proposals based on Articles 177 and 178 TFEU, relating to regional funds, as well as those based on Articles 173(3) and 182(1) TFEU, concerning the amendment of Regulation No 1291/2013 on the ‘Horizon 2020’ programme, these measures also are intended not to extend the areas for which the European Union is competent, but to ensure that use is made of its existing powers to finance programmes. Thus, as regards regional funds, the fourth indent of Article 1(2) of the contested decision refers to ‘a regulation adapting the general rules applicable to the tasks, priority objectives and the organisation of the Structural Funds in such a way that account is taken of the protection of minorities and the promotion of cultural and linguistic diversity provided that the actions to be financed lead to the strengthening of the economic, social and territorial cohesion of the Union’. As regards the ‘Horizon 2020’ programme, as the Commission has pertinently pointed out, a potential amendment of Regulation No 1291/2013 is designed to improve research into the added value that national minorities and cultural and linguistic diversity could bring to social and economic development within the regions of the European Union.64In addition, as has been stated in particular in paragraph 56 above, contrary to Romania’s assertion, the fact that Articles 173, 177, 178 and 182 TFEU do not refer to respect for persons belonging to national and linguistic minorities as one of their specific objectives does not preclude the European Union from adopting, within the framework of the powers which it exercises on the basis of those provisions, measures which take account of such an objective.65In regard to Romania’s complaint that intervention by a State in the protection of its national minority in the territory of another State exceeds the limits set under international law, the Commission states, once again correctly, that the appraisal as to whether the legal acts proposed in the ECI are compatible with such standards does not affect the examination of the registration condition laid down in Article 4(2)(b) of Regulation No 211/2011.66Thirdly, with regard to the measures proposed in respect of ‘stateless persons’, in order to guarantee equal treatment between such persons and EU citizens, which are referred to in section 5.2 of the proposed ECI, and which the organisers suggest could be adopted under Article 79(2) TFEU, the Commission has pointed out correctly that several legal acts which apply to, inter alia, stateless persons had been adopted at EU level, such as Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection (OJ 2011 L 132, p. 1), which also addresses equal treatment between stateless persons and EU citizens. By inviting the Commission to submit amendments to the rules ‘that allow for the approximation of the rights of long-term stateless persons and their families to those of EU citizens’, the proposed ECI, envisaged in the abstract, has been able to be considered as not manifestly exceeding the Commission’s powers to submit proposals for EU legal acts for the purposes of implementing the Treaties.67Fourthly, with regard to the proposal for the introduction, on the basis of Article 118 TFEU, of a ‘unitary copyright’ which would allow the whole of the European Union to be considered as an internal market in copyright matters, which is referred to in section 6.1 of the proposed ECI, it should be noted that that provision states that the European Union is competent to establish measures concerning the creation of European intellectual-property rights to provide uniform protection of intellectual-property rights throughout the European Union.68As stated in paragraph 56 above, the fact that Article 118 TFEU does not refer to respect for persons belonging to national and linguistic minorities as one of its specific objectives does not preclude the European Union from adopting, within the framework of the powers which it exercises on the basis of that provision, measures which take account of such an objective.69As regards Romania’s complaint that the intervention of a State in the protection of its national minority in the territory of another State exceeds the limits set under international law, it should be reiterated that the question of the compatibility of the legal acts proposed in the ECI with such standards does not affect the examination of the registration condition laid down in Article 4(2)(b) of Regulation No 211/2011.70Fifthly, with regard to the proposal to amend Directive 2010/13 on ‘audiovisual media services’, on the basis of Articles 53(1) and 62 TFEU, which is referred to in section 6.2 of the proposed ECI, and which seeks to ensure the freedom to provide services and the reception of audiovisual content in regions where national minorities reside, it should also be stated that there is nothing to preclude the Commission from proposing an amendment to that directive which takes into account the concerns regarding respect for persons belonging to national and linguistic minorities, whereas Romania’s arguments based, on the one hand, on the alleged infringement of Article 56 TFEU and of Article 2 TEU and, on the other hand, on the exceeding of the limits, established in accordance with international law, on the intervention of a State in the protection of its national minority in the territory of another State, are of no consequence in the assessment of the registration condition laid down in Article 4(2)(b) of Regulation No 211/2011. In so far as this complaint refers more particularly to a breach of Article 2 TEU, it could at most be examined in terms of the condition laid down in Article 4(2)(d) of Regulation No 211/2011, which prohibits the Commission from registering ECI proposals which are manifestly contrary to the values of the European Union as set out in Article 2 TEU, although this provision, however, is not referred to in the current plea.71Sixthly, with regard to the proposal for a ‘block exemption of projects promoting national minorities and their culture’, based on Article 107(3)(e) TFEU and referred to in section 7 of the proposed ECI, the Commission has pointed out correctly that, in accordance with Article 107(3)(d), TFEU, aid to promote culture and heritage conservation can be considered compatible with the internal market, following an analysis carried out by the Commission, where it does not alter conditions for trading and competition in the European Union to an extent contrary to the common interest. To the extent to which Romania claims that that proposal is liable to lead to discrimination on grounds of ethnicity, would hinder competition and would be contrary to the limits of the parent State’s involvement in the protection of its national minority in the territory of another Member State, reference should be made to the foregoing, to the effect that these arguments do not have any bearing on the assessment of the registration condition laid down in Article 4(2)(b) of Regulation No 211/2011 and Romania has not invoked a breach of Article 4(2)(d) of that regulation in the context of the present plea.72In the light of the foregoing considerations, it must be concluded that Romania is wrong to claim that the Commission made an error of assessment and infringed Article 5(2) TFEU and Article 4(2)(b) of Regulation No 211/2011 in concluding, at the stage of registration of the proposed ECI, and without prejudice, as the case may be, to a more comprehensive examination under Article 10 of Regulation No 211/2011, that, from an objective point of view, the proposals for legal acts such as those referred to in Article 1(2) of the contested decision and envisaged in the abstract did not fall ‘manifestly outside’ the framework of the Commission’s powers to submit a proposal for an act for the purpose of implementing the Treaties.73The first plea must therefore be rejected. The second plea, alleging infringement of the second paragraph of Article 296 TFEU 74Romania asserts that the obligation to state reasons laid down in the second paragraph of Article 296 TFEU is not exhaustively regulated by the second subparagraph of Article 4(3) of Regulation No 211/2011. In its view, that obligation constitutes an essential procedural requirement for respect of its rights of defence as a privileged applicant and contributes to bringing about the more general objective of ensuring that the EU Courts are able to exercise their power of judicial review. It continues that the statement of reasons must be appropriate to the nature of the act at issue and should clearly and unequivocally disclose the reasoning of the institution which adopted the act. Moreover, in accordance with case-law, an EU institution must explain its reasoning explicitly when the decision significantly deviates from previous decisions, as in the present case in fundamentally departing from Decision C(2013) 5969 final referred to in paragraph 2 above. In addition, Romania claims that the obligation to state reasons is all the more important in the case where the proposed ECI is registered because the condition laid down in Article 4(2)(b) of Regulation No 211/2011 is intended to ensure compliance with the fundamental principle of the conferral of powers. Finally, it argues that, as the Commission has a wide discretion as to whether the proposed ECI is manifestly outside the framework of its powers to submit a proposal for a legal act, compliance with the obligation to state reasons assumes fundamental importance for the purpose of enabling a determination to be made as to whether or not there has been an error of assessment and to determine the combination of the facts and law on which the exercise of its discretion depends.75However, according to Romania, the contested decision refers to the subject matter and objectives of the proposed ECI in recitals 2 and 3 without setting out the reasons why the Commission is competent to propose acts which come within the scope of that subject matter and which pursue the objectives of protection set out therein. It continues that the Commission simply lists, in recital 4 of the contested decision, the nine registered proposals for acts. It argues that, even if the Commission had stated in the recitals of the contested decision that the proposals for legislative acts submitted pursuant to policies coming within the scope of the powers of the European Union and described generically in recital 5 of the contested decision were registrable, the Commission, in the operative part, is authorising the collection of signatures for proposals for legislative acts which admittedly come within the scope of the Commission’s generic areas of competence, but which promote national or linguistic minorities and cultural and linguistic diversity. In addition, it submits that the contested decision does not contain any reference to the values and objectives of the European Union set out in Articles 2 and 3 TEU.76Moreover, it continues that, although the Commission sets out, in recitals 2 and 3 of the contested decision, the objectives and area referred to in the ECI, namely the protection of persons belonging to national minorities and cultural and linguistic diversity, the Commission provides no details from which it is apparent that it is not competent in those areas and, particularly, in the area of protection of persons belonging to national minorities, as it does, for example, when giving reasons for rejecting the other two proposals as inadmissible. In the view of Romania, such a manifestly insufficient statement of reasons is liable to prevent, on the one hand, interested parties from becoming aware of the reasons for the registration of the proposed ECI and to respond accordingly, and, on the other hand, the Court from reviewing the legality of the contested decision.77Furthermore, it asserts that the contested decision is drafted in a generic and stereotypical manner and does not indicate the reasons on which the Commission based its conclusion that the registration in part of a proposed ECI is possible, even though it had adopted a diametrically opposed position in Decision C(2013) 5969 final.78The Commission, supported by Hungary, takes issue with Romania’s arguments.79It should be recalled that the obligation to state reasons for legal acts set out in the second paragraph of Article 296 TFEU applies to all acts which may be the subject of an action for annulment (judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 42). It follows that, notwithstanding the fact that the second subparagraph of Article 4(3) of Regulation No 211/2011 refers to the Commission’s obligation to inform the organisers of the reasons for its decision only when it refuses to register the proposed ECI, the contested decision is subject to the obligation to state reasons even in so far as it contains the Commission’s decision to register the proposed ECI to the extent to which it concerns 9 of the 11 proposals for legal acts listed in its annex.80According to consistent case-law relating to Article 296 TFEU, the statement of reasons for legal acts must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review (see judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 28 and the case-law cited).81As is also apparent from settled case-law, the requirement to state reasons must be assessed by reference to the circumstances of the particular case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 29 and the case-law cited).82Furthermore, it is necessary to distinguish the obligation to state reasons as an essential procedural requirement from the review of the merits of the reasons stated, which comes within the review of the act’s substantive legality and requires the Court to determine whether the reasons on which the act is based are vitiated by errors (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraphs 66 to 68).83According to Romania, in accordance with case-law (see, to this effect, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 13 December 2007, Angelidis v Parliament, T‑113/05, EU:T:2007:386, paragraph 61), compliance with the obligation to state reasons assumes even greater importance in cases where the EU institutions have a wide discretion, as is the position in the present case. It argues that it is only in this way that the EU Courts can determine whether the elements of fact and of law on which the exercise of the discretion depends were present.84However, contrary to the position expressed by Romania, the Commission does not have a wide discretion for the purposes of the registration of a proposed ECI, as Article 4(2) of Regulation No 211/2011 states that that institution is to ‘register’ such a proposal, provided that the conditions set out in Article 4(2)(a) to (d) of that regulation are fulfilled, that is to say, inter alia, when the proposed ECI does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties. Conversely, if, following an initial analysis, it is clear that that final requirement is not met, the Commission must ‘refuse’ to register the proposed ECI as set out in the first subparagraph of Article 4(3) of Regulation No 211/2011.85The Commission has even less discretion as it has been held, in accordance with the objectives pursued by an ECI, as set out in recitals 1 and 2 of Regulation No 211/2011, consisting, inter alia, in encouraging participation by citizens and making the European Union more accessible, that the registration condition provided for in Article 4(2)(b) of that regulation must be interpreted and applied by the Commission, when it has received a proposed ECI, in such a way as to ensure easy accessibility to the ECI (judgments of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 49, and of 7 March 2019, Izsák and Dabis v Commission, C‑420/16 P, EU:C:2019:177, paragraphs 53 and 64).86In the present case, it must be held that the recitals of the contested decision set out the elements which led to its adoption and that Romania was in a position to examine the grounds on which the contested decision was based, a fact also demonstrated by all of the arguments that it has presented in support of the present action.87Thus, as the Commission indicated clearly in recital 6 of the contested decision, the proposed ECI, in so far as it aims at proposals from it for EU legal acts, as referred to in recital 4(a) to (e) and (h) to (k) of that decision, for the purpose of implementing the Treaties, did not manifestly fall outside the framework of its powers to submit a proposal for a legal act. That conclusion originates in the description found in recital 5 of the contested decision, and reproduced in paragraph 8 above, of the areas in which EU legal acts seeking to implement the Treaties may be adopted.88The fact that, at the stage of registration of a proposed ECI, involving an initial legal assessment of that proposal and without prejudice to the Commission’s assessment in the context of the communication that it adopts, as appropriate, on the basis of Article 10(1)(c) of Regulation No 211/2011 (judgment of 23 April 2018, One of Us and Others v Commission, T‑561/14, under appeal, EU:T:2018:210, paragraph 117), that institution confines itself to setting out, as it did in recital 5 of the contested decision, in a generic manner the areas in which EU legal acts may be adopted and which correspond to the areas in which the organisers of the proposed ECI request that legal acts be adopted, in order to conclude that the proposed ECI does not manifestly fall outside the framework of the Commission’s powers, without raising the fact that the measures to which the proposed ECI refers seek to improve the protection of persons belonging to national and linguistic minorities and to strengthen the European Union’s cultural and linguistic diversity, cannot be regarded as being contrary to the obligation to state reasons.89To the extent to which Romania claims in this context that the Commission has failed in its obligation to state reasons by departing from its position expressed in Decision C(2013) 5969 referred to in paragraph 2 above without explaining the reasons for that departure, first, it should be noted that it is clear from the statement of reasons for the contested decision that, contrary to what was the position in Decision C(2013) 5969, the Commission has, in registering in part the proposed ECI, taken account, in accordance with the case-law of the Court of Justice and the General Court, of the additional information provided by the organisers as well as the compulsory information, for the purposes of determining whether the condition in Article 4(2)(b) of Regulation No 211/2011 was met. Moreover, the Commission had already suggested in Decision C(2013) 5969 that some of the proposals for legal acts set out in the annex to the proposed ECI, considered individually, could come within the framework of its powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties.90Secondly, as regards the Commission’s decision to accept the registration in part of the proposed ECI, in respect of which Romania also criticises the absence of reasons in the contested decision, the Commission argued before the Court that its position had evolved since the adoption of Decision C(2013) 5969 referred to in paragraph 2 above and that it now took the view that such a registration was liable to encourage the participation of citizens in democratic life and to make the European Union more accessible.91In this respect, it should be noted, first, that recital 10 of the contested decision states that the effect of the ECI is to enhance the democratic functioning of the European Union by enabling every citizen to participate in the European Union’s democratic life and, secondly, that, according to recital 11 of that decision, for that purpose, the procedures and conditions required for the ECI should be clear, simple, user-friendly and proportionate to the nature of the ECI so as to encourage participation by citizens and make the European Union more accessible, before the Commission concludes in recital 12 of the contested decision that the proposed ECI should be registered in part.92Consequently, even if the statement of reasons required by Article 296 TFEU does not imply that, as a rule, the author of a decision must set out the reasons which led it to rely on a specific interpretation of the relevant legal rule and if it suffices for that institution to set out the facts and legal considerations of fundamental importance in the scheme of the decision, it must be held that the contested decision sets out, in any event, to the requisite legal standard, the reasons underlying the registration in part of the proposed ECI.93In addition, to the extent to which Romania also criticises the Commission for not having referred in the contested decision to Articles 2 and 3 TEU as, according to that Member State, those provisions alone do not provide EU legislative competence, suffice it to state that that conclusion is apparent from the wider context of the contested decision and, in particular, from Decision C(2013) 5969 referred to in paragraph 2 above, pursuant to which the contested decision was adopted, and which recalls, moreover, in recital 8 that, so far as concern measures which have been refused registration and which are not the subject of the present action, Article 3(3) TEU does not in itself constitute a legal basis for any action by the institutions.94Consequently, the second plea must be rejected and therefore the action must be dismissed in its entirety. Costs 95Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Romania has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter, including the costs relating to the interim proceedings.96Under Article 138(1) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs. Hungary must therefore bear its own costs.On those grounds,THE GENERAL COURT (Second Chamber)hereby: 1. Dismisses the action; 2. Orders Romania to bear its own costs and to pay those incurred by the European Commission, including the costs relating to the interim proceedings; 3. Orders Hungary to bear its own costs. PrekButtigiegCosteiraDelivered in open court in Luxembourg on 24 September 2019.[Signatures]( *1 ) Language of the case: Romanian. | 9aa68-4c9fda4-487c | EN |
The General Court annuls the Commission’s decision on the aid measure implemented by the Netherlands in favour of Starbucks | 24 September 2019 ( *1 )(State aid – Aid implemented by the Netherlands – Decision declaring the aid to be incompatible with the internal market and unlawful and ordering its recovery – Tax ruling – Transfer pricing – Calculation of the tax base – Arm’s length principle – Advantage – Reference system – Fiscal and procedural autonomy of the Member States)In Cases T‑760/15 and T‑636/16, Kingdom of the Netherlands, represented initially by M. Bulterman, B. Koopman, M. de Ree and M. Noort, subsequently by M. Bulterman, M. de Ree and M. Noort, acting as Agents,applicant in Case T‑760/15,supported by Ireland, represented initially by E. Creedon, G. Hodge, A. Joyce and K. Duggan, subsequently by G. Hodge, A. Joyce, K. Duggan, M. Browne and J. Quaney, acting as Agents, and by M. Collins, P. Gallagher, Senior Counsel, B. Doherty and S. Kingston, Barristers,intervener, Starbucks Corp., established in Seattle, Washington (United States), Starbucks Manufacturing Emea BV, established in Amsterdam (Netherlands),represented by S. Verschuur, M. Petite and M. Stroungi, lawyers,applicants in Case T‑636/16,v European Commission, represented, in Case T‑760/15, initially by P.‑J. Loewenthal and B. Stromsky, subsequently by P.‑J. Loewenthal and F. Tomat, acting as Agents, and in Case T‑636/16, by P.‑J. Loewenthal and F. Tomat, acting as Agents,defendant,APPLICATIONS based on Article 263 TFEU seeking annulment of Commission Decision (EU) 2017/502 of 21 October 2015 on State aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks (OJ 2017 L 83, p. 38),THE GENERAL COURT (Seventh Chamber, Extended Composition)composed of M. van der Woude, President, V. Tomljenović (Rapporteur), E. Bieliūnas, A. Marcoulli and A. Kornezov, Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written procedure and further to the hearing on 2 July 2018,gives the following Judgment I. Background to the dispute and legal framework 1Starbucks Manufacturing Emea BV (‘SMBV’) is a subsidiary of the Starbucks group (‘the Starbucks group’), established in the Netherlands. The Starbucks group is composed of Starbucks Corp. and all the companies controlled by that corporation. Starbucks Corp. is headquartered in Seattle, Washington (United States). Alki LP (‘Alki’) is a subsidiary of the Starbucks group, established in the United Kingdom, which indirectly controls SMBV. Alki and SMBV concluded a roasting agreement (‘the roasting agreement’), which provides inter alia that SMBV is to pay Alki a royalty for the use of Alki’s intellectual property (IP) rights, including roasting methods and other roasting know-how (‘the royalty’).2Commission Decision (EU) 2017/502 of 21 October 2015 on State aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks (OJ 2017 L 83, p. 38; ‘the contested decision’) concerns a measure relating to the application of the Netherlands corporate tax system to the specific case of SMBV. A. National legislative framework 3According to the general Netherlands corporate income tax system, corporate income tax must be paid by companies established in the Netherlands – which are resident taxpayers – and by non-established companies – which are non-resident taxpayers – that have an economic activity in the Netherlands. According to Article 2 of the Wet op vennootschapsbelasting (Law on corporation tax; ‘CIT’) of 1969, established companies – which necessarily includes companies incorporated under Netherlands law – are subject to corporate income tax on their worldwide income. According to Article 3 of the CIT, non-established companies, for their part, are taxed on their income from Netherlands sources.4In that context, the corporate tax base is made up of the profits made by the corporate taxpayer. It follows from Article 8 of the CIT, read in conjunction with Section 3.8 of the Wet inkomstenbelasting (Income Tax Act) of 2001, that all taxpayers must be taxed according to the total profit concept. According to that concept, all corporate profits are taxed, provided that they derive from an economic or commercial activity. Section 3.8 of the Income Tax Act provides that ‘the profit from a business enterprise is the amount of the aggregate benefits that, under whatever name and in whichever forms, are derived from a business enterprise’. According to Section 3.25 of the Income Tax Act 2001, which applies also to corporate taxpayers by virtue of Article 8 of the CIT, the taxable yearly profits must be determined on the principles of sound business practice and in a consistent manner independently of the likely outcome.5In general, the taxable profits correspond to the accounting profits as reflected in the company’s profit and loss accounts. However, adjustments can be made based on specific tax provisions, such as applicable tax incentives, the participation exemption, corrections to the tax result from transactions not executed at arm’s length and the application of different depreciation rules under tax and accounting rules.6Article 8b(1) of the CIT provides that, ‘where an entity participates, directly or indirectly, in the management, control or capital of another entity, and conditions are made or imposed between these entities in their commercial and financial relations (transfer prices) which differ from conditions which would be made between independent parties, the profit of these entities will be determined as if the last mentioned conditions were made’.7Decree IFZ2001/295M of the Netherlands State Secretary for Finance of 30 March 2001, entitled ‘Transfer pricing method, application of the arm’s length principle and the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations’ (‘the transfer pricing decree’), describes the manner in which the Netherlands tax administration interprets the arm’s length principle on the basis of Article 8b(1) of the CIT. The preamble of the transfer pricing decree provides the following:‘The policy of the Netherlands on the arm’s length principle in the field of international tax law is that this principle forms an integral part of the Netherlands system of tax law as a result of its incorporation in the broad definition of income recorded in Section 3.8 of the Income Tax Act. In principle, this means that the [Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, adopted by the Committee on Fiscal Affairs of the Organisation for Economic Co-operation and Development (OECD) on 27 June 1995] apply directly to the Netherlands under Section 3.8 of the Income Tax Act. There are a number of areas in which the OECD Guidelines provide scope for individual interpretation by the member countries. In a number of other areas, practical experience has shown that the OECD Guidelines are in need of clarification. This decree explains the Netherlands’ position in relation to these particular points and seeks, where possible, to remove any confusion.’8The transfer pricing decree is divided into twelve parts on the arm’s length principle, on transfer pricing methods, on administrative approaches aimed at preventing and resolving transfer pricing disputes, on secondary adjustments, on determination of the arm’s length price where the assessment is highly uncertain at the time of the transaction, on the provision of services within a group, on contributions to a cost-sharing agreement with a profit mark-up, on arm’s length remuneration for financial services, on subsidies, fiscal advantages and partially deductible costs, on the allocation of profits to a parent company and to a permanent establishment, on the entry into force of that decree and on the application of the current policy.9More specifically, the transfer pricing decree states in point 1 thereof, inter alia, that the arm’s length principle under Netherlands law is based, in general, on comparing the conditions of a transaction between affiliated companies with the conditions of a transaction between independent companies. The administration is entitled to expect a taxpayer to demonstrate that the transfer prices it applies comply with the arm’s length principle. In that context, the premiss must be that each of the companies concerned receives a remuneration which reflects the functions performed, taking into account the assets mobilised and the risks run. In addition, arm’s length remuneration must in theory be determined on the basis of transactions. In the event of difficulty, transactions may be assessed together in order to determine compliance with the arm’s length principle. Moreover, in examining multiannual data, the tax administration may not use hindsight.10In point 2 thereof, the transfer pricing decree refers to five methods, set out in the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, adopted by the Committee on Fiscal Affairs of the Organisation for Economic Co-operation and Development on 27 June 1995 and revised on 22 July 2010 (‘the OECD Guidelines’), concerning the determination of transfer prices. Those methods include the comparable uncontrolled price method (‘the CUP method’) and the transactional net margin method (the ‘TNMM’). According to the transfer pricing decree, the OECD Guidelines assume a certain hierarchy between the methods, preference being given to the traditional transactional methods. The Netherlands tax administration must always conduct a transfer pricing audit from the perspective of the method chosen by the taxpayer at the date of the transaction. The decree states that that rule complies with paragraph 1.68 of the 1995 version of the OECD Guidelines. It follows that the taxpayer is in principle free to choose a transfer pricing method as long as the selected method leads to a result in conformity with the arm’s length principle. Even though, where it chooses a transfer pricing method, the taxpayer is deemed to take into account the reliability of that method in the situation in question, that approach is not specifically aimed at encouraging it to assess all the methods and justifying, thereafter, the reasons why the method it has chosen gives the best result under the conditions present.11Point 5 of the transfer pricing decree provides inter alia that it may be difficult, during the transfer of intangible goods such as patents, for example, to assess the value of those assets at the time of the transfer on account of insufficient knowledge about future advantages and risks. In the event that independent companies have opted for a price revision clause, in comparable circumstances, the tax administration must have the possibility of determining the price on the basis of such a clause. The objective is to have a regime in which the remuneration is in conformity with the advantages the intangible good will generate in the future. B. Advance pricing arrangement 12On 28 April 2008, the Netherlands tax authorities concluded an advance pricing arrangement with SMBV (‘the APA’), the objective of it being to determine SMBV’s remuneration for its production and distribution activities, as described in the APA, within the Starbucks group (‘SMBV’s remuneration’). Thereafter, SMBV’s remuneration served to determine annually its taxable profit on the basis of Netherlands corporate income tax. According to its preamble, the APA is a tax agreement relating to the conformity with the arm’s length principle of the transfer prices to be used in the calculation of profit within an international group. It is apparent from [confidential] ( 1 ) the APA that the agreement was intended inter alia to be used for the purposes of the annual corporate income tax declarations in the Netherlands. The APA was valid for the period between 1 October 2007 and 31 December 2017.13The APA provided for a method for determining SMBV’s remuneration in accordance with the arm’s length principle for its production and distribution activities within the Starbucks group. In addition, the APA endorsed the amount of the royalty, paid by SMBV to Alki for the use of roasting technologies, coffee blends and coffee roasting curves (‘the roasting IP’), in the context of the process of producing and providing coffee to shop operators.14More specifically, as regards the scope of the APA, [confidential]. Regarding SMBV’s functions, [confidential] it was mainly responsible for the production of roasted coffee beans and for the provision of roasted coffee beans and related products to Starbucks shops in the Europe, Middle East and Africa region (‘the EMEA region’) and that it was the owner of a roasting facility in the Netherlands. Moreover, the APA indicated that SMBV was licensing certain intellectual property rights belonging to Alki and that those rights were necessary to the process of producing and providing coffee to store operators. It was stated that, to that end, SMBV paid the royalty to Alki. [confidential] Furthermore, according to [confidential] the APA, SMBV carried out a distributor function for a number of other coffee-related products and, besides the logistics functions relating to its own production activities, also provided logistics support for other products on certain markets.15Regarding the transfer pricing method for SMBV’s production and distribution activities, [confidential] the APA stated inter alia that SMBV’s remuneration had to be determined on the basis of the cost plus method (see paragraph 187 below in relation to the meaning of that expression), and that it was at arm’s length if the ‘operating margin’ reached [confidential]% of the relevant cost base (‘SMBV’s cost base’). In addition, according to the APA, SMBV’s cost base did not include:–the costs of the Starbucks cups, paper napkins, etc.;the costs of green coffee beans;the logistics and distribution cost relating to services provided by third parties and to the remuneration for activities provided by third parties under consignment manufacturing contracts;the royalty payment.16So far as concerns the royalty that SMBV had to pay annually to Alki, [confidential] the APA provided that it was fixed on the basis of the difference between the operational profit made in respect of the production and distribution function, before royalty expenses, and SMBV’s remuneration. The royalty payment was deductible for corporate income tax purposes and was not subject to Netherlands withholding tax. C. Background to the dispute 1. Administrative procedure before the Commission 17On 30 July 2013, the European Commission sent the Kingdom of the Netherlands an initial request for detailed information on its national tax ruling practice in the area of corporate taxation. To that effect, it requested that all rulings concerning SMBV and Starbucks Coffee Emea BV, two subsidiaries of the Starbucks group established in the Netherlands, be sent to it. In response to that request, the Kingdom of the Netherlands inter alia sent the APA.18On 11 June 2014, the Commission initiated the formal investigation procedure under Article 108(2) TFEU (‘the opening decision’) in respect of the APA, on the ground that that agreement might constitute State aid within the meaning of Article 107(1) TFEU.19Following the adoption of the opening decision, the Commission exchanged, on numerous occasions, correspondence with the Kingdom of the Netherlands and with those entities of the Starbucks group that were the correspondents of the Commission during the administrative procedure (‘the Starbucks correspondents’) in relation inter alia to the APA. 2. Contested decision 20On 21 October 2015, the Commission adopted the contested decision. In that decision, the Commission, first, found that the APA constituted aid incompatible with the internal market and, second, ordered the recovery of that aid. The contested decision is divided into 11 sections. (a) Description of the contested measure 21In Section 2 of the contested decision, entitled ‘Description of the contested measure’, the Commission identified the APA as the measure at issue. It stated that the APA had been concluded on the basis of the transfer pricing report prepared by the Starbucks group’s tax advisor (‘the transfer pricing report’) and found that that document formed an integral part of the APA (recitals 40 and 46 of the contested decision).22First, the Commission noted that, in adopting the APA, the Netherlands tax authorities had accepted that the remuneration for SMBV’s activities in the Netherlands, as determined by the Starbucks group’s tax advisor, constituted an arm’s length remuneration. The Commission then noted that the Netherlands authorities had also accepted that the level of the royalty payment from SMBV to Alki corresponded to the difference between the realised operating profit before royalty payments and SMBV’s remuneration as provided for by the APA. It found that the APA provided that the royalty payment would be deductible from SMBV’s taxable profit and would not be subject to withholding tax in the Netherlands (recitals 40 to 44 of the contested decision).23Second, the Commission set out the content of the transfer pricing report. First of all, the Commission stated that the transfer pricing report presented Starbucks Coffee Emea as the principal establishment of the Starbucks group in the EMEA region. It was described as sublicensing the Starbucks group’s intellectual property rights (trade mark, technology and know-how) – for which it itself was paying a royalty to Alki – to third parties operating Starbucks branches. Those then paid Starbucks Coffee Emea for IP rights corresponding to a percentage of their turnover. In that regard, the Commission noted that the Starbucks group’s tax advisor considered that the CUP method could be used to determine the arm’s length price of payments of intra-group IP rights to Starbucks Coffee Emea.24Next, as regards SMBV, first, the Commission noted that the transfer pricing report was limited to describing it as an entity with the primary function of roasting green coffee beans and selling the roasted coffee on to affiliated and non-affiliated entities. As part of those activities, SMBV was required to observe the specifications provided by the companies of the Starbucks group that were established in the territory of the United States (‘Starbucks US’) and had the responsibility of ensuring that its production was in conformity with the quality standards of Starbucks US. SMBV also acted as distribution intermediary for various products not derived from café and provided ‘support to the supply chain’. Second, the Commission stated that, to carry out that activity, SMBV supplied itself with green coffee beans from a subsidiary of the Starbucks group established in Switzerland, Starbucks Coffee Trading SARL (‘SCTC’). SMBV also paid a royalty to Alki for the use of roasting processes and for the right to provide Starbucks branches with coffee. In that regard, the Commission observed that the transfer pricing report did not list the licensing arrangement under which SMBV paid a royalty to Alki among the most important transactions. The relationships between SMBV and the various entities of the Starbucks group were restated in Figure 1 of the contested decision, reproduced below:25Last, the Commission stated that, as regards the choice of transfer pricing method, the transfer pricing report selected the TNMM, a method whereby account was taken of the net margins that had been received in comparable transactions by non-affiliated companies. According to the transfer pricing report, that method was appropriate in the case at hand, since the differences between the transactions and the functions of the entities to be compared to determine the net margin were less the sources of error than in traditional methods (recital 55 of the contested decision).26The Commission stated that, in order to apply the TNMM, the tax advisor had chosen as profit level indicator the operating costs for the activities where SMBV provided added value. After a comparability search, the tax advisor had considered that the net profit of the entities comparable to SMBV corresponded to a mark-up on total costs. Thereafter, the Starbucks group’s tax advisor had made two adjustments in order to take account of the differences between the compared entities and SMBV, such as the risks assumed or the functions performed. The first adjustment sought to take into account the fact that SMBV’s cost base, to which the mark-up was applied, did not include the cost of green coffee beans. The second adjustment purported to take into account the fact that the comparable undertakings bore the cost of raw materials and that their return was calculated on a cost base including raw materials. Applying those two adjustments, the mark-up had thus been set at [confidential]% of SMBV’s cost base (recitals 56 to 61 of the contested decision).27Third, the Commission set out the content of the OECD Guidelines in their 1995 and 2010 versions. According to the Commission, the OECD Guidelines described five methods to approximate an arm’s length pricing of transactions and profit allocation between companies of the same group. In its view, they classified those five methods either as traditional transaction methods or as transactional profit methods. According to the contested decision, the traditional transaction methods were to be given priority. The CUP method and the TNMM were included among the five methods listed in the OECD Guidelines (recitals 67 to 70 of the contested decision).28The first method, the CUP method, is, as the Commission described, a traditional transaction method, consisting in comparing the price charged for the transfer of property or services in a transaction between two associated undertakings with the price charged for the transfer of property or services in a comparable transaction carried out in comparable circumstances between two independent undertakings (recitals 67 and 71 of the contested decision).29The second method, the TNMM, is, as the Commission describes, a transactional profit method, which involves estimating the potential amount of arm’s length profit for an entire activity, rather than for specific transactions. In that context, a profit level indicator would be selected, such as costs, turnover or fixed investment, to which would be applied a profit ratio reflecting that observed in comparable transactions on the market (recitals 67 and 72 to 74 of the contested decision). (b) Assessment of the contested measure 30In Section 9 of the contested decision, entitled ‘Assessment of the contested measure’, the Commission concluded that State aid had been granted. It found that the four conditions for the existence of State aid had been satisfied.31After recalling the conditions for the existence of State aid, set out in Article 107(1) TFEU, the Commission found that the first condition for the existence of State aid, the requirement of an intervention by the State or through State resources, had been satisfied. It noted, to that end, first, that the APA contained the acceptance by the Netherlands tax administration of a method for allocating profits to SMBV within the Starbucks group, as proposed by the Starbucks group’s tax advisor. SMBV then calculated on that basis the annual amount of corporate income tax it was required to pay in the Netherlands. According to the Commission, the APA was therefore imputable to the Kingdom of the Netherlands. Second, the Commission found that the APA resulted in a lowering of SMBV’s tax liability in the Netherlands by deviating from the tax that SMBV would otherwise – in the absence of the APA – have been obliged to pay under the general Netherlands corporate income tax system. The Commission thus took the view that the APA had given rise to a reduction of the Kingdom of the Netherlands’ tax revenue (recitals 223 to 226 of the contested decision).32As regards the second and fourth conditions for a finding of State aid, first, the Commission found that the APA was liable to affect intra-Union trade, since SMBV was part of the Starbucks group, a globally active entity operating in all Member States of the European Union. Second, it maintained that, given that the APA reduced the tax burden that SMBV would otherwise have had to bear under the general corporate income tax system, it distorted or threatened to distort competition by strengthening SMBV’s financial position (recital 227 of the contested decision).33As regards the third condition for a finding of State aid, the Commission considered that the APA conferred a selective advantage on SMBV, in so far as it had resulted in a lowering of SMBV’s tax liability in the Netherlands as compared with what it would have had to pay under the general corporate income tax system and as compared with stand-alone undertakings (recital 228 of the contested decision).34As a preliminary point, the Commission observed that the case-law had established a three-step analysis to be used in determining whether a particular tax measure was selective. The first step is to identify the ‘reference system’, namely, the tax regime normally applicable to the beneficiary of the tax measure. In the second step, it is necessary to determine whether the tax measure derogates from that reference system, in so far as it differentiates between economic operators who, in the light of the objectives intrinsic to the reference system, are in a comparable legal and factual situation. In the third and final step, if the measure constitutes a derogation from the reference system, the Member State must establish that the derogation is justified by the nature or the general scheme of the reference system (recital 230 of the contested decision).35As regards the first step, identification of the reference system, the Commission considered the reference system to be the general Netherlands corporate income tax system, the objective of which is to tax the profits of all companies subject to tax in the Netherlands. It stated in that regard that companies established in the Netherlands are resident taxpayers and are subject to corporate income tax on their worldwide income. Companies not established in the Netherlands are non-resident companies and are subject to tax with regard to income from Netherlands sources. According to the Commission, integrated companies and stand-alone companies were in a comparable legal and factual situation in the light of that objective and were therefore subject to corporate income tax without distinction. In that regard, the difference in the modalities of calculating the taxable profits of integrated companies had no bearing on the objective of the reference system, taxation of the profits of all companies subject to tax in the Netherlands (recitals 231 to 244 of the contested decision).36As regards the second step set out in paragraph 34 above, namely, demonstrating a derogation from the reference system, the Commission indicated, first of all, that the question of whether a tax measure constituted a derogation from the reference system would generally coincide with identification of the advantage granted to the beneficiary under that measure. In its view, where a tax measure results in a reduction of the tax liability of a beneficiary compared to what it would otherwise have to pay were it not for that measure, that reduction constitutes both the advantage granted by the tax measure and the derogation from the reference system (recital 253 of the contested decision).37Next, the Commission recalled the case-law according to which, in the case of an individual measure, the identification of the economic advantage is, in principle, sufficient to support the presumption that that measure is selective. It stated that, in the case at hand, the APA granted to SMBV was an individual aid measure (recital 254 of the contested decision).38Last, the Commission asserted that, in the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C-182/03 and C-217/03, EU:C:2006:416), the Court of Justice had found that a tax measure which results in an integrated company charging transfer prices that did not reflect those which would have been charged in conditions of free competition, that is prices negotiated by independent undertakings negotiating under comparable circumstances at arm’s length, conferred an advantage on that group company in so far as it resulted in a reduction of its taxable base and thus its tax liability under the ordinary corporate income tax system. The Commission recalled that the arm’s length principle consisted in the notion that transactions between intra-group companies were to be remunerated as if they had been agreed to by stand-alone companies negotiating under conditions of free competition. Accordingly, the Commission stated that it had to verify whether the methodology accepted by the Netherlands tax administration via the APA for the purposes of determining SMBV’s taxable profits in the Netherlands departed from a methodology that resulted in a reliable approximation of a market-based outcome and, therefore, from the arm’s length principle. In that case, the APA would be regarded as conferring a selective advantage on SMBV within the meaning of Article 107(1) TFEU (recitals 259 to 263 of the contested decision).39Consequently, the Commission found that the arm’s length principle necessarily formed an integral part of its assessment, under Article 107(1) TFEU, of the tax measures granted to integrated companies, independently of whether a Member State had incorporated that principle into its national legal system. The Commission then stated that, in response to the arguments of the Kingdom of the Netherlands raised during the administrative procedure, it had not examined whether the APA observed the arm’s length principle, as defined in Article 8b of the CIT and by the transfer pricing decree, but that it had sought to determine whether the Netherlands tax administration had conferred a selective advantage on SMBV within the meaning of Article 107(1) TFEU (recitals 264 and 265 of the contested decision).40In the light of those elements, the Commission set out a series of lines of reasoning to prove that the APA conferred a selective advantage on SMBV. In a primary reasoning, the Commission elaborated several lines of reasoning, some of which were subsidiary to each other, to demonstrate that the APA derogated from the general Netherlands corporate income tax system. In a subsidiary reasoning, the Commission maintained that the APA derogated from Article 8b(1) of the CIT and from the transfer pricing decree.41In particular, in the first place, in its primary reasoning aimed at demonstrating that the APA derogated from the general Netherlands corporate income tax system, the Commission noted that the Starbucks group’s tax advisor had chosen the TNMM for the purposes of determining SMBV’s taxable profits. It considered that different methodological choices, proposed by the Starbucks group’s tax advisor and endorsed by the Kingdom of the Netherlands, led to a reduction in the corporate income tax paid by SMBV as compared to stand-alone companies whose taxable profits were determined under market conditions (recitals 268 to 274 of the contested decision).42First, the Commission considered that the transfer pricing report had failed to examine whether the intra-group transfer for which the APA had actually been requested and granted – namely, the royalty SMBV paid to Alki for the licence to use the roasting IP – was in conformity with the arm’s length principle. Consequently, the transfer pricing report failed to identify or analyse controlled and uncontrolled transactions, which was a necessary first step in assessing the arm’s length nature of commercial conditions applicable between related parties for transfer pricing purposes (recitals 275 to 285 of the contested decision).43Second, regarding the level of the royalty, the Commission considered that, had the transfer pricing report correctly identified and examined the royalty, it should have resulted in an arm’s length value of zero. It noted inter alia that SMBV generated no profit from the use of the IP rights that were the subject of the royalty, in so far as it did not exploit them on the market. The Commission then considered that the profits paid to Alki by means of the royalty should have been fully taxed in the Netherlands (recitals 286 to 341 of the contested decision).44In examining the arm’s length nature of the royalty, the Commission applied the CUP method and identified a number of manufacturing agreements between the Starbucks group and third entities, or between third entities to the Starbucks group, as being comparable transactions.45In addition, the Commission rejected the arguments raised by the Kingdom of the Netherlands and Starbucks seeking to justify the amount of the royalty. First, it took the view that the consideration for the royalty payment could not be Alki’s taking over of SMBV’s entrepreneurial risks; otherwise, integrated companies could contractually reallocate risk and thereby prevent any application of the arm’s length principle. Second, the Commission added that the royalty payment could not be justified by size of the amounts paid by Alki to Starbucks US.46Third, regarding the level of the purchase price of green coffee beans, the Commission noted that that transaction had not been examined in the transfer pricing report, when that report identified it as one of the main transactions effected by SMBV. Using SCTC’s financial data, the Commission calculated the average gross margin on the costs of green coffee beans for the APA’s validity period. The Commission considered that the gross margin between 2011 and 2014, which resulted in a significant increase in the price of green coffee beans to be borne by SMBV compared to the costs borne by SCTC, did not reflect a reliable approximation of a market-based outcome. It concluded that the price premium paid by SMBV, in lowering the latter’s recorded profits and therefore taxable base, constituted a selective advantage (recitals 342 to 361 of the contested decision).47In the second place, still in its primary line of reasoning to demonstrate that the APA derogated from the general Netherlands corporate income tax system, but subsidiary to the criticisms set out in paragraphs 42 to 46 above, the Commission considered that, in any event and even assuming that the TNMM were appropriate for identifying the profits made by SMBV, the transfer pricing report had incorrectly applied the TNMM. It concluded that, since that method did not result in an arm’s length outcome, the Netherlands tax authorities could not approve it in the APA (recitals 362 to 408 of the contested decision).48First, the Commission considered that the transfer pricing report had erroneously identified SMBV as being the least complex entity, and therefore as being the ‘tested party’, for the purposes of the application of the TNMM. It added that, on the contrary, SMBV should have been identified as the most complex entity, in so far as, first, Alki performed only limited functions and, second, apart from the fact that SMBV performed functions other than roasting, that function was not a routine activity but an essential one (recitals 362 to 377 of the contested decision).49Second, the Commission considered that the profit level indicator used in the transfer pricing report, namely, operating costs, was inappropriate. According to the Commission, the Starbucks group’s tax advisor had erroneously found that roasting was SMBV’s principal function rather than reselling and distribution. The Commission then concluded that the use of the sales recorded by SMBV as profit level indicator was more appropriate and would have led to a higher remuneration of SMBV’s activity. In support of that conclusion, the Commission calculated a profitability ratio from a group of independent entities exercising the same reselling and roasting activities as SMBV. It concluded, after comparison with Starbucks Manufacturing Corporation (‘SMC’) – the only other entity of the group to exercise roasting activities for the group – that SMC was [confidential] times more profitable than SMBV on the basis of the APA (recitals 379 to 400 of the contested decision).50Third, the Commission considered that, in any event and even assuming that operating costs were a profit level indicator appropriate for calculating SMBV’s transfer prices, the two adjustments made by the tax advisor in the transfer pricing report did not enable a reliable approximation of a market-based outcome to be reached. The Commission criticised, first, the use of a ‘working capital adjustment’ and, second, the exclusion of the costs of the undertakings designated in recital 300 of the contested decision as published in the Official Journal of the European Union by the term ‘unaffiliated manufacturing company 1’ (‘unaffiliated manufacturing company 1’) from the cost base used as profit level indicator (recitals 401 to 408 of the contested decision).51The Commission then concluded that the methodology accepted by the Netherlands tax authorities, whereby the profits generated by SMBV in excess of the [confidential]% margin of operating costs had to be paid as a royalty to Alki, was not in line with the arm’s length principle and led to a reduction in SMBV’s tax burden.52It is thus apparent from the foregoing that, in the examination in respect of the general Netherlands corporate income tax system, the Commission raised six errors justifying the conclusion that there was a selective advantage in the case at hand. In that examination, the first three errors come under a principal position, whereas the other three errors come under a subsidiary position and are subsidiary to each other.53Specifically, as regards the principal position, the Commission considered that the method accepted by the APA departed from a methodology that led to a reliable approximation of a market-based outcome in line with the arm’s length principle, in so far as:the choice of the TNMM was erroneous and the transfer pricing report did not examine the intra-group transaction for which the APA had effectively been requested and granted (‘the first line of reasoning’);first, the APA did not establish a methodology to ensure that the royalty paid by SMBV to Alki was in line with the arm’s length principle; however, the CUP method should have been applied in order to determine the amount of the royalty paid by SMBV to Alki; under that method, the royalty should have been zero (‘the second line of reasoning’);second, the APA did not examine whether the level of purchase price of green coffee beans was in line with the arm’s length principle; that level was overvalued (‘the third line of reasoning’).54With regard to the subsidiary position, the Commission considered that, even assuming that the TNMM were the appropriate method for determining the profits made by SMBV, the transfer pricing report had incorrectly applied the TNMM. In that regard, the Commission took the view that:the method accepted by the APA derogated from a method that gave a reliable approximation of a market-based outcome in line with the arm’s length principle, in so far as SMBV had been incorrectly identified as the least complex entity and thus as the tested entity for the purposes of the application of the TNMM (‘the fourth line of reasoning’);in the alternative, the method accepted by the APA did not give a reliable approximation of a market-based outcome in line with the arm’s length principle, in so far as SMBV’s functions had been incorrectly analysed and the choice of operating costs as profit level indicator was incorrect (‘the fifth line of reasoning’);in the alternative, the method accepted by the APA did not give a reliable approximation of a market-based outcome in line with the arm’s length principle, in so far as the adjustments made to the mark-up were inappropriate (‘the sixth line of reasoning’).55In the third place, in its subsidiary reasoning aimed at demonstrating that the APA derogated from Article 8b(1) of the CIT and from the transfer pricing decree, the Commission considered that, even supposing that the relevant reference system were not composed of the general rules on corporate income tax, but, as the Netherlands authorities maintained, only of the provisions enshrining the arm’s length principle in Netherlands law, namely Article 8b(1) of the CIT and the transfer pricing decree, the APA, in approving a method of determining SMBV’s profits that did not result in an arm’s length outcome, also derogated from that reference system. To that end, the Commission referred to its analysis conducted in respect of the general Netherlands corporate income tax system and the six lines of reasoning set out in paragraphs 52 to 54 above (the ‘reasoning in respect of the limited reference system’) (recitals 409 to 412 of the contested decision).56So far as concerns the third step of the analysis of the selectivity of tax measures, as identified in paragraph 34 above, the Commission found that the derogation from the reference system was not justified. In that regard, it noted that neither the Netherlands authorities nor Starbucks had put forward any possible justifications for SMBV’s selective treatment, when the burden of proof in that regard lay with them. The Commission moreover added that it had not been able to identify any possible justification (recitals 413 and 414 of the contested decision).57The Commission concluded that SMBV’s APA conferred on SMBV a selective advantage, within the meaning of Article 107(1) TFEU, in so far as it had validated a method for allocating profits to SMBV which could not be regarded as resulting in a reliable approximation of a market-based outcome in line with the arm’s length principle. According to the Commission, that method had led to a reduction in SMBV’s tax burden, primarily, under the general Netherlands corporate income tax system, by comparison with stand-alone companies, and, in the alternative, under Article 8b(1) of the CIT and the transfer pricing decree, by comparison with other integrated companies (recitals 415 and 416 of the contested decision).58Consequently, the Commission concluded that the APA constituted State aid (recitals 422 and 423 of the contested decision).59The Commission then considered that the aid granted to SMBV was incompatible with the internal market. In its view, the Kingdom of the Netherlands had not invoked any of the grounds for a finding of compatibility provided for in Article 107(2) and (3) TFEU. The aid in question, which was to be considered operating aid, could not normally be considered compatible with the internal market (recitals 431 to 434 of the contested decision).60Moreover, the Commission found that the Kingdom of the Netherlands had not notified it, in accordance with Article 108(3) TFEU, of any plan corresponding to the APA and had not complied with the standstill obligation incumbent on it under that article. It could therefore only be unlawful State aid, put in effect in contravention of that provision (recitals 435 and 436 of the contested decision).61Furthermore, the Commission specified that the information on which it had based its decision was available for the Netherlands tax administration at the time the APA was adopted. It added, in respect of the cost of green coffee beans, that the transfer pricing report did not examine the prices charged by SCTC to SMBV under their green coffee bean sourcing agreement and that, had that transaction been examined in the APA in 2008 in order to determine its arm’s length price, the APA would not have been able to leave room for the price increases observed in 2011 (recitals 424 to 427 of the contested decision).62Last, the Commission identified SMBV and the Starbucks group as a whole as aid beneficiaries, on the ground that they formed a single economic entity (recitals 417 to 419 of the contested decision). (c) Recovery of the State aid 63In Section 10 of the contested decision, entitled ‘Recovery’, first, the Commission inter alia considered that it was not required to quantify the exact amount of the aid to be recovered, but rather it was sufficient for its decision to include information enabling the addressee of the decision to work out that amount itself without overmuch difficulty. In the present case, the Commission considered that, since the royalty amount had to be zero, SMBV’s accounting profits should have been used to calculate its taxable profits. Moreover, those profits should have been increased by the difference between the price paid for the green coffee beans and the price that ought to have been paid. In that regard, the Commission considered that a gross margin of [confidential]% for SCTC constituted an arm’s length price for the purchase of the coffee beans. It then specified that the sum to be recovered corresponded to the difference between the tax that should have been paid on the basis of that price and the amount actually paid under the APA (recitals 442 to 448 of the contested decision).64Second, the Commission found that, in the first instance, the Kingdom of the Netherlands was required to recover from SMBV the aid and that, should SMBV not have been in a position to make the repayment, the Kingdom of the Netherlands was to recover the balance from Starbucks Corp., since it was the entity which controlled the Starbucks group (recital 449 of the contested decision). (d) Conclusion 65In conclusion, the Commission found that the Kingdom of the Netherlands, by concluding the APA, had unlawfully granted State aid to SMBV and to the Starbucks group, in breach of Article 108(3) TFEU, that the Kingdom of the Netherlands was required to recover it, by virtue of Article 16 of Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9), from SMBV and, if SMBV failed to repay the full amount of the aid, from Starbucks Corp. for the amount of aid outstanding (recital 450 of the contested decision).66The operative part of the contested decision reads as follows:‘Article 1 The advanced pricing arrangement entered into by the [Kingdom of the] Netherlands on 28 April 2008 with [SMBV], which enables the latter to determine its corporate income tax liability in the Netherlands on a yearly basis for a period of 10 years, constitutes aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union that is incompatible with the internal market and that was unlawfully put into effect by the [Kingdom of the] Netherlands in breach of Article 108(3) of the Treaty. Article 2 The [Kingdom of the] Netherlands shall recover the incompatible and unlawful aid referred to in Article 1 from [SMBV].Any sums that remain unrecoverable from [SMBV], following the recovery described in the preceding paragraph, shall be recovered from Starbucks [Corp.].The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries until their actual recovery.The interest shall be calculated on a compound basis in accordance with Chapter V of Regulation (EC) No 794/2004. Article 3 Recovery of the aid granted referred to in Article 1 shall be immediate and effective.The [Kingdom of the] Netherlands shall ensure that this Decision is implemented within four months following the date of notification of this Decision. Article 4 Within two months following notification of this decision, the [Kingdom of the] Netherlands shall submit information regarding the methodology used to calculate the exact amount of aid.The [Kingdom of the] Netherlands shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid granted referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision....’ II. Procedure and forms of order sought A. Written part of the procedure in Case T‑760/15 67By application lodged at the Registry of the General Court on 23 December 2015, the Kingdom of the Netherlands brought the action in Case T‑760/15. The Commission lodged a defence on 30 March 2016. The reply and the rejoinder were lodged on 14 June 2016 and 9 September 2016, respectively. 1. Composition of the formation of the Court and priority treatment 68By document lodged at the Court Registry on 20 June 2016, the Kingdom of the Netherlands requested that Case T‑760/15 be heard and determined by a Chamber sitting in extended composition. The Court took formal note, pursuant to Article 28(5) of its Rules of Procedure, of the fact that Case T‑760/15 had been referred to the Fifth Chamber, Extended Composition.69Following a change in the composition of the Chambers of the Court on 26 September 2016, the Judge-Rapporteur was assigned, pursuant to Article 27(5) of the Rules of Procedure, to the Seventh Chamber, Extended Composition, of the General Court to which Case T‑760/15 was accordingly allocated.70Since a member of the Seventh Chamber, Extended Composition, of the General Court was unable to sit, the President of the General Court, by decision of 26 April 2017, designated the Vice-President of the General Court to complete the chamber.71By decision of 12 December 2017, the President of the Seventh Chamber, Extended Composition, of the General Court approved the proposal of the Judge-Rapporteur that Case T‑760/15 be given priority under Article 67(2) of the Rules of Procedure. 2. Interventions 72By document lodged at the Court Registry on 6 April 2016, the United Kingdom of Great Britain and Northern Ireland applied for leave to intervene in Case T‑760/15 in support of the form of order sought by the Commission.73By document lodged at the Court Registry on 7 April 2016, Ireland applied for leave to intervene in Case T‑760/15 in support of the form of order sought by the Kingdom of the Netherlands.74By order of 13 June 2016, the President of the Fifth Chamber of the General Court granted the applications for leave to intervene of the United Kingdom and Ireland.75By document lodged at the Court Registry on 9 November 2016, the United Kingdom withdrew its intervention. By order of 12 December 2016, the President of the Seventh Chamber, Extended Composition, of the General Court removed the United Kingdom as intervener from Case T‑760/15. 3. Applications for confidential treatment 76By document lodged at the Court Registry on 26 February 2016, the Kingdom of the Netherlands applied for confidential treatment, vis-à-vis the public, of part of the application and certain documents annexed to it.77By document lodged at the Court Registry on 17 May 2016, the Kingdom of the Netherlands applied for confidential treatment, vis-à-vis Ireland, of part of the application and certain documents annexed to it, as well as the contested decision and part of the defence.78By document lodged at the Court Registry on 17 May 2016, the Commission applied for confidential treatment, vis-à-vis Ireland, of part of the defence.79By document lodged at the Court Registry on 1 July 2016, the Kingdom of the Netherlands applied for confidential treatment, vis-à-vis Ireland, of part of the reply and certain documents annexed to it.80By document lodged at the Court Registry on 21 July 2016, the Kingdom of the Netherlands informed the Court that it had reached an agreement with the Commission concerning the non-confidential version of the contested decision for publication and that it was amending the applications for confidential treatment it had made in Case T‑760/15 with regard to the contested decision in accordance with that agreement.81By document lodged at the Court Registry on 11 October 2016, the Kingdom of the Netherlands applied for confidential treatment, vis-à-vis Ireland, of part of the rejoinder and certain documents annexed to it.82Following its admission as intervener, Ireland received only non-confidential versions of the procedural documents and raised no objection to the applications for confidential treatment made with regard to it.83On the proposal of the Judge-Rapporteur, the Seventh Chamber, Extended Composition, of the General Court adopted a measure of organisation of procedure provided for in Article 89 of the Rules of Procedure by which the Kingdom of the Netherlands was invited to revise its applications for confidential treatment of the APA, the roasting agreement between SMBV and Alki, mentioned in recital 142 of the contested decision, and the transfer pricing report, in order to remove certain inconsistencies in those applications. The Kingdom of the Netherlands provided new non-confidential versions of those documents within the prescribed period. 4. Forms of order sought 84The Kingdom of the Netherlands claims that the Court should:annul the contested decision;order the Commission to pay the costs in Case T‑760/15.85The Commission contends that the Court should:dismiss the application in Case T‑760/15 as unfounded;order the Kingdom of the Netherlands to pay the costs in Case T‑760/15.86Ireland claims that the Court should annul the contested decision in accordance with the form of order sought by the Kingdom of the Netherlands. B. Written part of the procedure in Case T‑636/16 87By application lodged at the Court Registry on 5 September 2016, Starbucks Corp. and Starbucks Manufacturing Emea (together, ‘Starbucks’) brought the action in Case T‑636/16. The Commission lodged a defence on 16 March 2017. The reply and the rejoinder were lodged on 26 June and 20 October 2017, respectively.88On the proposal of the Seventh Chamber of the General Court, the Court decided, on 12 July 2017, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.89Since a member of the Seventh Chamber, Extended Composition, of the General Court was unable to sit, the President of the General Court, by decision of 1 August 2017, designated the Vice-President of the General Court to complete the Chamber.90By decision of 12 December 2017, the President of the Seventh Chamber, Extended Composition, of the General Court approved the proposal of the Judge-Rapporteur that Case T‑636/16 be given priority under Article 67(2) of the Rules of Procedure. 2. Applications for confidential treatment 91By document lodged at the Court Registry on 7 April 2017 and regularised by documents lodged on 23 April 2018, Starbucks applied for confidential treatment, vis-à-vis Ireland, of certain information in the application, in the defence, in the reply, in the rejoinder as well as in certain of the annexes to those submissions. 3. Forms of order sought 92Starbucks claims that the Court should:annul Articles 1 to 4 of the contested decision;in the alternative, annul Article 2(1) of the contested decision;order the Commission to pay the costs in Case T‑636/16.93dismiss the action in Case T‑636/16 as unfounded;order Starbucks to pay the costs in Case T‑636/16. C. Joinder for the purposes of the oral part of the procedure, and the oral part of the procedure 94By document lodged at the Court Registry on 23 February 2017, Starbucks applied for Cases T‑760/15 and T‑636/16 to be joined for the purposes of the oral part of the procedure.95By decision of 7 June 2017, the President of the Seventh Chamber, Extended Composition, of the General Court decided not to join, at that stage of the procedure, Cases T‑760/15 and T‑636/16.96By decision of the President of the Seventh Chamber, Extended Composition, of the General Court of 8 May 2018, Cases T‑760/15 and T‑636/16 were joined for the purposes of the oral part of the procedure, in accordance with Article 68 of the Rules of Procedure.97Acting on a report from the Judge-Rapporteur, the Court decided to open the oral part of the procedure and, by way of the measures of organisation of procedure under Article 89 of the Rules of Procedure, asked the parties to answer questions in writing. The parties responded to that measure of organisation of procedure within the prescribed period.98By documents lodged at the Court Registry on 7 and 15 June 2018, Starbucks requested confidential treatment of certain information contained in its response to the measure of organisation of procedure and in that of the Commission.99By document lodged at the Court Registry on 8 June 2018, Starbucks submitted observations on the report for the hearing.100By document lodged at the Court Registry on 14 June 2018, the Commission requested that Starbucks’ observations on the report for the hearing be withdrawn from the case file.101After having received the only non-confidential versions of the documents mentioned in paragraphs 91, 98 and 99 above, Ireland raised no objection to the applications for confidential treatment made with regard to it.102By document lodged at the Court Registry on 26 June 2018, Starbucks requested authorisation to use technical means during the hearing and proposed having recourse, during the hearing, to an expert. At the hearing, the Commission was requested to submit orally its observations on that request and in turn requested authorisation to use technical means during the hearing.103The parties presented oral argument, with the use of the technical means requested, and answered the questions put by the Court at the hearing on 2 July 2018.104The parties were heard during the hearing on a possible joinder of Cases T‑760/15 and T‑636/16 for the purposes of the decision closing the proceedings, and the Court took formal note of it in the minutes of the hearing. III. Law 105For the purposes of the present actions, it is necessary, at the outset, to address certain procedural questions raised by the parties, before analysing the substantive pleas the parties raise. A. Procedural matters 106Regarding the procedural matters that are at issue in the case at hand, first of all, it is necessary to examine the possible joinder of the present case for the purposes of the decision closing the proceedings. Next, it is appropriate to examine the Commission’s request that Starbucks’ observations of 8 June 2018 on the report for the hearing be withdrawn from the case file. Last, it is appropriate to examine the issue of the admissibility of Annex A.7 to the application in Case T‑760/15, which has been disputed by the Commission. 1. Joinder of the present cases for the purposes of the decision closing the proceedings 107In accordance with Article 19(2) of Rules of Procedure, the President of the Seventh Chamber, Extended Composition, of the General Court referred the decision as to whether Cases T‑760/15 and T‑636/16 should be joined for the purposes of the decision closing the proceedings, which fell within his remit, to the Seventh Chamber, Extended Composition, of the General Court.108The parties having been heard at the hearing with respect to a possible joinder of the cases, it is appropriate for Cases T‑760/15 and T‑636/16 to be joined for the purposes of the decision which closes the proceedings, on account of the connection between them. 2. Request that Starbucks’ observations on the report for the hearing be withdrawn from the case file 109By letter of 14 June 2018, the Commission requested the General Court to withdraw from the case file of Cases T‑760/15 and T‑636/16 Starbucks’ letter of 8 June 2018 (see paragraph 100 above), to the extent that it contained observations on the report for the hearing, on the ground that such observations are provided for neither in the Rules of Procedure nor in the practice rules for the implementation of the latter.110First, it is appropriate to recall that, by decision of 13 June 2018, the President of the Seventh Chamber, Extended Composition, of the General Court decided to place on the case file Starbucks’ letter of 8 June 2018. Second, it must be recalled that the General Court is the sole judge of whether documents not provided for in the Rules of Procedure need to be placed on the case file. Accordingly, the Commission’s request that the letter of 8 June 2018 be withdrawn from the case file must be rejected.111However, according to Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure.112Given that Starbucks has not provided any justification for the late submission of the arguments raised in its letter of 8 June 2018, it is necessary, as the Commission has argued, to reject them as inadmissible to the extent that they go beyond mere observations on the confidentiality and accuracy of the report for the hearing by amending the pleas raised in the application. 3. Admissibility of Annex A.7 to the application in Case T‑760/15 113The Commission disputes the admissibility of Annex A.7 to the application in Case T‑760/15, which contains a schematic comparison of certain aspects of the functioning of the contracts concluded between the Starbucks group and certain third parties. According to the Commission, the essential factual and legal elements on which the action is based must be set out – or otherwise be deemed inadmissible – at least in summary form, but coherently and intelligibly, from the actual text of the application. That condition is not, in its view, satisfied in this case.114It must be noted that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, each application is required to state the subject matter of the proceedings, the pleas in law and arguments on which the application is based and a summary of those pleas. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application, if necessary, without any further information. It is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. The annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings and in so far as it is possible to determine precisely what are the matters they contain that support or supplement those pleas or arguments. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraphs 268 to 271 and the case-law cited).115In the case at hand, it is appropriate to observe that, as regards the contracts concluded between the Starbucks group and external roasters and manufacturers of coffee-derived products, the Kingdom of the Netherlands submits that Annex A.7 contains a ‘schematic overview of the points of comparison of the contracts produced by the Commission ... which includes the three differences cited’ in the application in Case T‑760/15. However, the Kingdom of the Netherlands sets out, in paragraphs 140 to 155 of the application in Case T‑760/15, the reasons which demonstrate, in its view, that the contracts that the Commission invokes in the contested decision are not comparable with the contractual relationship between Alki and SMBV.116In that regard, it must be held that all the arguments contained in Annex A.7 to the application in Case T‑760/15 are set out in a sufficiently clear and precise manner in paragraphs 140 to 155 of the application in Case T‑760/15. Thus, even without Annex A.7 to the application in Case T‑760/15, the Commission would have been capable of preparing its defence and the Court of ruling on the action. The only added value of Annex A.7 to the application in Case T‑760/15 consists, therefore, in indicating which specific contracts are concerned by the respective arguments of the Kingdom of the Netherlands when it refers, in paragraphs 140 to 155 of the application, to the ‘majority’ or ‘most’ of those contracts.117It is therefore appropriate to reject the Commission’s argument that Annex A.7 to the application in Case T‑760/15 should be rejected as inadmissible. B. Pleas raised and structure of the examination of the present actions 118The actions brought in Cases T‑760/15 and T‑636/16 seek the annulment of the contested decision to the extent that it classifies the APA as State aid for the purposes of Article 107(1) TFEU and to the extent that it orders the recovery of sums that were not collected by the Kingdom of the Netherlands from SMBV by way of corporate income tax.119In support of their actions, the Kingdom of the Netherlands and Starbucks put forward five and two pleas, respectively, which overlap for the most part.120By the first plea in Case T‑760/15 as well as by the first part of the first plea in Case T‑636/16, the Kingdom of the Netherlands and Starbucks call into question the Commission’s examination of the selective nature of the APA. Specifically, they argue that the Commission used an erroneous reference system for the examination of the selectivity of the APA.121By the second, third and fourth pleas in Case T‑760/15 as well as by the second part of the first plea and the second plea in Case T‑636/16, the Kingdom of the Netherlands and Starbucks argue that the Commission’s analysis according to which the APA conferred an advantage on SMBV is erroneous.122Specifically, by the second plea in Case T‑760/15 as well as by the second part of the first plea in Case T‑636/16, the Kingdom of the Netherlands and Starbucks invoke, in essence, an infringement of Article 107 TFEU, in that the Commission erroneously examined whether there was an advantage in relation to the arm’s length principle particular to EU law and thereby violated the Member States’ fiscal autonomy.123By the third plea in Case T‑760/15 as well as by the third part of the first plea and the first, second, fourth and fifth parts of the second plea in Case T‑636/16, the Kingdom of the Netherlands and Starbucks claim, in essence, infringement of Article 107 TFEU in that the Commission erroneously considered the choice of the TNMM to set transfer pricing to constitute an advantage. The Kingdom of the Netherlands and Starbucks dispute, in essence, the Commission’s principal line of reasoning regarding the existence of a tax advantage in favour of SMBV, set out in recitals 255 to 361 of the contested decision. Those pleas concern the first to third lines of reasoning mentioned in paragraph 53 above.124By the fourth plea in case T‑760/15 as well as by the third part of the second plea in Case T‑636/16, the Kingdom of the Netherlands and Starbucks claim infringement of Article 107 TFEU to the extent that the Commission erroneously considered the detailed rules for the application of the TNMM as validated in the APA to confer an advantage on SMBV. Those pleas concern the fourth to sixth lines of reasoning mentioned in paragraph 54 above.125By the fifth plea in Case T‑760/15, the Kingdom of the Netherlands claims breach of the principle of due diligence.126With regard to the analysis of the pleas raised by the Kingdom of the Netherlands and Starbucks, first of all, it is necessary to examine, the plea disputing the existence of the arm’s length principle as the Commission describes it in the contested decision. Next, it is appropriate to examine the pleas disputing that, in its first six lines of reasoning set out in paragraphs 53 and 54 above, the Commission demonstrated that the APA derogated from the general Netherlands corporate income tax system and conferred an advantage, within the meaning of Article 107 TFEU, on SMBV. Additionally, it is necessary to examine the plea disputing that, in its reasoning in respect of the limited reference system, set out in paragraph 55 above, the Commission demonstrated that the APA derogated from the limited reference system composed of Article 8b of the CIT and from the transfer pricing decree and conferred an advantage, within the meaning of Article 107 TFEU, on SMBV. Last, should the examination carried out on the existence of an advantage lead to the rejection of those pleas, it will be appropriate to examine the pleas alleging an absence of selectivity of the contested measure and breach of the obligation of due diligence.127In that regard, it must moreover be borne in mind that, according to the case-law, classification as State aid requires all the conditions referred to in Article 107(1) TFEU to be fulfilled. It is thus established that, for a measure to be categorised as State aid within the meaning of that provision, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient; and, fourth, it must distort or threaten to distort competition (see judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40 and the case-law cited).128In the case at hand, however, as is apparent from the presentation of the pleas, which is set out in paragraphs 118 to 125 above, the Kingdom of the Netherlands and Starbucks do not dispute the assessment made by the Commission regarding the first two conditions and the fourth condition to be satisfied in order for a measure to be classified as State aid. They do not dispute that, supposing that the Commission demonstrated that the APA conferred a tax advantage, that advantage constituted intervention by the State or through State resources, that it was liable to affect trade between Member States and that it distorted or threatened to distort competition. The four first pleas raised in Case T‑760/15 seek, in essence, to call into question the Commission’s finding that the APA conferred a selective advantage on SMBV.129Moreover, as regards demonstrating the selective advantage, it must be noted that the Commission’s approach of examining the criteria of advantage and selectivity concurrently is not itself incorrect, given that both the advantage and the selective nature of that advantage are examined. Nevertheless, the Court considers it appropriate to consider, first of all, whether the Commission was entitled to conclude that there was an advantage, before going on, if necessary, to examine whether that advantage had to be considered to be selective.130Thereafter, it will be appropriate to analyse the arguments of the Kingdom of the Netherlands and of Starbucks on the absence of an advantage, within the meaning of Article 107 TFEU, conferred on SMBV by the APA. C. Existence of an arm’s length principle in the field of State aid control and compliance with the principle of Member States’ fiscal autonomy 131By its second plea, the Kingdom of the Netherlands argues that the Commission erred in identifying an arm’s length principle particular to EU law and in identifying it as a criterion for assessing the existence of State aid. Starbucks raises, in essence, the same complaints, in the second part of its first plea.132First, the Kingdom of the Netherlands argues that the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), on which the Commission relies to identify an arm’s length principle particular to EU law, is not authority for the existence of such a principle. In addition, the Commission neither stated the basis from which it had identified the existence of an arm’s length principle in EU law nor explained the content of that principle. Starbucks adds that, notwithstanding the fact that observance of Article 107 TFEU effectively constitutes a limit on Member States’ fiscal autonomy, the Commission exceeded the powers conferred on it by Article 107 TFEU. Starbucks criticises the Commission for having replaced, purportedly under the principle of equal treatment, Netherlands rules of tax law with a transfer pricing principle developed autonomously and, thus, for having imposed substantive rules of tax law.133Second, the Kingdom of the Netherlands argues that the Commission could not examine the APA under an arm’s length principle particular to EU law, since only the legislation and national rules of the Member State concerned are relevant for the purposes of State aid control. Specifically, the Kingdom of the Netherlands contends that the existence of an advantage can be examined only by reference to the charges which are normally included in the budget of the undertaking under national law and not by reference to an arm’s length principle particular to EU law. Starbucks adds, furthermore, that the Commission did not take Netherlands law into account and that its reasoning deviates from – and indeed conflicts with – Netherlands transfer pricing rules.134First of all, Ireland adds that the Commission, which was required to identify a derogation, did not compare Starbucks’ situation to that of any other taxpayer but merely sought to apply the arm’s length principle. Next, it argues that the Commission cannot impose rules that have never been incorporated into the national system. Accepting a principle of equal treatment in tax matters would then encroach on the sovereignty and the autonomy of the Member States. Last, Ireland submits that the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), did not identify an arm’s length principle particular to EU law, in so far as, in that case, first, the arm’s length principle had been incorporated into Belgian national law and, second, the judgment referred to the OECD Guidelines, which had also been incorporated into Belgian national law.135The Commission disputes those arguments. It contends inter alia that it examined the existence of a selective advantage by reference to the reference framework deriving from national law and not by reference to the arm’s length principle. It maintains that it is clear from the contested decision that the existence of an advantage was assessed by comparison with the tax burden that would normally have been borne by SMBV under the general Netherlands system of corporate income tax.136Under the present plea, in essence, the Kingdom of the Netherlands and Starbucks therefore criticise the Commission for having identified an arm’s length principle specific to EU law in breach of the fiscal autonomy of the Member States and for having examined the APA only by reference to that principle without taking Netherlands law into account.137First and foremost, it must be noted that, as is apparent in particular from recitals 252, 267 and 408 of the contested decision, the examination in the light of the arm’s length principle as described by the Commission in the contested decision forms part of its principal analysis of the selective advantage. As has been set out in paragraph 35 above, that analysis entails examining whether the APA derogates from the general Netherlands corporate income tax system. It must be noted in that regard that the Commission had previously indicated, in recitals 232 to 244 of the contested decision, that the objective of the general Netherlands corporate income tax system was to tax the profits of all companies resident in the Netherlands, whether or not integrated, and that both types of company are in a similar factual and legal situation in the light of that objective.138As regards the definition of the arm’s length principle, the Commission asserted, in recitals 258 and 261 of the contested decision, that, according to that principle, intra-group transactions should be remunerated as if they had been agreed to by independent companies. It added, in recital 262 of the contested decision, that the purpose of that principle was to ensure that intra-group transactions were treated for tax purposes by reference to the amount of profit that would have arisen if the same transactions had been executed by independent companies. The Commission moreover argued during the hearing that the arm’s length principle was, in its view, a tool for assessing the price level of intra-group transactions, and the Court took formal note of that in the minutes of the hearing.139With regard to the legal nature of the arm’s length principle, the Commission considered, in recital 264 of the contested decision, that the arm’s length principle necessarily formed part of its assessment, under Article 107 TFEU, of tax measures granted to group companies, irrespective of whether the Member State had incorporated that principle into its national legal system. It stated that the arm’s length principle which it was applying was a general principle of equal treatment in taxation, which fell within the application of Article 107 TFEU. The French-language version of the contested decision mentions in that connection a ‘principe de traitement équitable’ (principle of equitable treatment) which is a translation error of the expression ‘principle of equal treatment’. The Commission based that statement on the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), concerning the tax regime for coordination centres in Belgium, in which the Court of Justice had held that the method for determining taxable income under that regime conferred a selective advantage on those centres. Specifically, the Commission referred to paragraph 96 of that judgment, in which the Court of Justice held that the method for determining the taxable income of the centres ‘[meant] that the transfer prices [did] not resemble those which [were] charged in conditions of free competition’.140As regards the application of the arm’s length principle, in recital 263 of the contested decision, the Commission indicated that, to assess whether the Kingdom of the Netherlands had granted a selective advantage to SMBV, it accordingly had to verify whether the methodology accepted by the Netherlands tax administration through the APA for the purposes of determining SMBV’s taxable profits in the Netherlands departed from a methodology that resulted in a reliable approximation of a market-based outcome and, therefore, from the arm’s length principle. It added, in recital 264 of the contested decision, that the arm’s length principle was used to establish whether the taxable profit of a group company for corporate income tax purposes had been determined on the basis of a methodology that approximated market conditions, so that that company was not treated favourably under the general corporate income tax system as compared to non-integrated companies whose taxable profit was determined by the market.141It must therefore be examined whether the Commission was entitled to analyse the measure at issue in the light of the arm’s length principle as described in the contested decision, summarised in recitals 138 to 140 above, which consists in verifying whether intra-group transactions are remunerated as if they had been negotiated under market conditions.142According to settled case-law, while direct taxation, as EU law currently stands, falls within the competence of the Member States, they must nonetheless exercise that competence consistently with EU law (see judgment of 12 July 2012, Commission v Spain, C‑269/09, EU:C:2012:439, paragraph 47 and the case-law cited). Thus, intervention by the Member States in matters of direct taxation, even if it relates to issues that have not been harmonised in the European Union, is not excluded from the scope of the rules on the monitoring of State aid.143It follows that the Commission can classify a tax measure as State aid provided that the conditions for classification are met (see, to that effect, judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 28, and of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 81). Member States must exercise their competence in respect of taxation in accordance with EU law (judgment of 3 June 2010, Commission v Spain, C‑487/08, EU:C:2010:310, paragraph 37). Consequently, they must refrain from taking, in that context, any measure likely to constitute State aid that is incompatible with the internal market.144As regards the condition that the measure at issue must grant an economic advantage, it should be borne in mind that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 40 and the case-law cited; judgment of 9 October 2014, Ministerio de Defensa et Navantia, C‑522/13, EU:C:2014:2262, paragraph 21).145Specifically, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than that of other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU (judgment of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 14; see, also, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 46 and the case-law cited).146In the case of tax measures, the very existence of an advantage may be established only when compared with ‘normal’ taxation (judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56). Accordingly, such a measure confers an economic advantage on its recipient if it mitigates the burdens normally included in the budget of an undertaking and which, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect (judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 22).147Consequently, in order to determine whether there is a tax advantage, the position of the recipient as a result of the application of the measure at issue must be compared with his position in the absence of the measure at issue (see, to that effect, judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraph 114), and under the normal rules of taxation.148In the context of determining the fiscal position of an integrated company which is part of a group of undertakings, it must be noted at the outset that the pricing of intra-group transactions carried out by that company is not determined under market conditions. That pricing is agreed to by companies belonging to the same group, and is therefore not subject to market forces.149Where national tax law does not make a distinction between integrated undertakings and stand-alone undertakings for the purposes of their liability to corporate income tax, that law is intended to tax the profit arising from the economic activity of such an integrated undertaking as though it had arisen from transactions carried out at market prices. In those circumstances, it must be held that, when examining, pursuant to the power conferred on it by Article 107(1) TFEU, a fiscal measure granted to such an integrated company, the Commission may compare the fiscal burden of such an integrated undertaking resulting from the application of that fiscal measure with the fiscal burden resulting from the application of the normal rules of taxation under national law of an undertaking, placed in a comparable factual situation, carrying on its activities under market conditions.150Furthermore, and as the Commission correctly stated in the contested decision, those findings are supported by the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), concerning Belgian tax law, which provided for integrated companies and stand-alone companies to be treated on equal terms. The Court of Justice recognised in paragraph 95 of that judgment the need to compare a regime of derogating aid with the ‘ordinary tax system, based on the difference between profits and outgoings of an undertaking carrying on its activities in conditions of free competition’.151In that context, although, through that fiscal measure granted to an integrated company, national authorities have accepted a certain level of pricing for an intra-group transaction, Article 107(1) TFEU allows the Commission to check whether that pricing corresponds to pricing under market conditions, in order to determine whether there is, as a result, any mitigation of the burdens normally included in the budget of the undertaking concerned, thus conferring on that undertaking an advantage within the meaning of that article. The arm’s length principle, as described by the Commission in the contested decision, is thus a tool for making that determination in the exercise of the Commission’s powers under Article 107(1) TFEU. The Commission also stated, correctly, in recital 261 of the contested decision, that the arm’s length principle was a ‘benchmark’ for establishing whether an integrated company was receiving, pursuant to a tax measure determining its transfer pricing, an advantage within the meaning of Article 107(1) TFEU.152It should also be stated that when the Commission uses that tool to check whether the taxable profit of an integrated undertaking pursuant to a tax measure corresponds to a reliable approximation of a taxable profit generated under market conditions, the Commission can identify an advantage within the meaning of Article 107(1) TFEU only if the variation between the two comparables goes beyond the inaccuracies inherent in the methodology used to obtain that approximation.153In the present case, the APA concerns the determination of SMBV’s taxable profits under the CIT the objective of which, irrespective of whether the normal rules of taxation are to be broadly or narrowly defined, is to tax integrated and stand-alone undertakings in the Netherlands in the same way with regard to corporate income tax. The Commission was therefore in a position to verify whether SMBV’s taxable profit pursuant to the APA was lower than its tax burden in the absence of the APA and under the normal rules of taxation in Netherlands law. Given that SMBV is an integrated undertaking and that the CIT is intended to tax the profit resulting from the economic activity of such an integrated undertaking as if it had resulted from transactions carried out at market prices, it is necessary, in examining the APA, to compare SMBV’s taxable profit as a result of the application of the APA with the position, as it would be if the normal tax rules under Netherlands law were applied, of an undertaking in a factually comparable situation, carrying on its activities in conditions of free competition. Against that background, although the APA accepted a certain level of pricing for intra-group transactions, it is necessary to check whether that pricing corresponds to prices that would have been charged under market conditions.154In that context, it must be stated that, with regard to the examination as to whether an integrated undertaking has obtained an advantage within the meaning of Article 107(1) TFEU, the Commission cannot be criticised for having used a methodology for determining transfer pricing that it considers appropriate in this instance in order to examine the level of transfer pricing for a transaction or for several closely connected transactions that is part of the contested measure. The Commission is nevertheless required to justify its choice of methodology.155Even though the Commission correctly observed that it cannot be formally bound by the OECD Guidelines, the fact remains that those guidelines are based on important work carried out by groups of renowned experts, that they reflect the international consensus achieved with regard to transfer pricing and that they thus have a certain practical significance in the interpretation of issues relating to transfer pricing, as the Commission acknowledged in recital 66 of the contested decision.156Consequently, the Commission correctly concluded that it was entitled to examine, in the context of its analysis under Article 107(1) TFEU, whether intra-group transactions were remunerated as though they had been negotiated under market conditions. That finding is not called into question by the other arguments of the Kingdom of the Netherlands and of Starbucks.157First, as regards the argument of the Kingdom of the Netherlands that the Commission failed to explain the content of the arm’s length principle as defined in the contested decision, it is sufficient to recall that the contested decision highlights it as a useful tool that can be used to verify that intra-group transactions are remunerated as if they had been negotiated between stand-alone undertakings (see paragraph 138 above). That argument must therefore be rejected.158Second, to the extent that the Kingdom of the Netherlands and Starbucks maintain that the arm’s length principle as described by the Commission in the contested decision would permit it alone to prescribe the taxable profit of an undertaking and that it would have the effect of disguised direct tax harmonisation in contravention with Member States’ fiscal autonomy, that argument must be rejected.159While, in the absence of EU rules governing the matter, it falls within the competence of the Member States to designate bases of assessment and to spread the tax burden across the different factors of production and economic sectors (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P,EU:C:2011:732, paragraph 97), it does not mean that every tax measure, which affects, inter alia, the basis of assessment taken into account by the tax authorities, will escape the application of Article 107 TFEU (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 104). It follows that the Commission does not have, at this stage of the development of EU law, competence to allow it to define in an autonomous manner the ‘normal’ taxation of an integrated undertaking, by disregarding national tax rules. However, although ‘normal’ taxation is defined by national tax rules and although the very existence of an advantage must be established by reference to them, the fact remains that, if those national rules provide that stand-alone companies and integrated companies must be dealt with under the same conditions, Article 107(1) TFEU allows the Commission to verify whether the price level of intra-group transactions, accepted by the national authorities for determining the tax base of an integrated undertaking, corresponds to a price level of a transaction which has been negotiated in market conditions.160Consequently, when the Commission examines whether the method validated in a national tax measure leads to an outcome established in conformity with the arm’s length principle as has been defined in paragraph 137 above, it is not exceeding its competences.161Third, as regards the argument of the Kingdom of the Netherlands that the Commission has failed to provide any legal basis for its arm’s length principle, it must be pointed out that, in recitals 264 and 265 of the contested decision, the Commission stated that the arm’s length principle as described in the contested decision existed independently of the incorporation of that principle into the national legal system. It also made clear that it had not examined whether the APA complied with the arm’s length principle laid down in Article 8b of the CIT or in the transfer pricing decree, which incorporate the arm’s length principle into Netherlands law. The Commission also asserted that the arm’s length principle which it applied was distinct from that enshrined in Article 9 of the OECD Model Tax Convention on Income and on Capital.162However, the Commission also made clear, in recital 264 of the contested decision, that the arm’s length principle necessarily formed an integral part of the examination, under Article 107(1) TFEU, of tax measures granted to group companies and that the arm’s length principle was a general principle of equal treatment in taxation, which fell within the application of Article 107 TFEU.163It is therefore apparent from the contested decision that the arm’s length principle, as described by the Commission, is a tool which it used, correctly, in the context of the examination carried out under Article 107(1) TFEU.164It is true that, at the hearing, the Commission inter alia stated that the arm’s length principle as described in the contested decision did not fall within EU law or international law, but that it was inherent in the ordinary system of taxation as provided for by national law. Thus, according to the Commission, if a Member State chooses, in the context of its national tax system, the approach of the separate legal entity, according to which tax law is concerned with legal entities, and not with economic entities, the arm’s length principle is necessarily a corollary of that approach, which is binding in the Member State concerned, independently of whether the arm’s length principle has, expressly or impliedly, been incorporated into national law.165In that regard, the Kingdom of the Netherlands and Starbucks indicated at the hearing that, by those assertions, the Commission seemed to be changing its stance on the arm’s length principle as described in the contested decision. However, on the assumption that the interpretation put forward by the Kingdom of the Netherlands and Starbucks is found to be correct, it must be stated, in any event, that the Commission cannot change the legal basis of the arm’s length principle, as set out in the contested decision, at the hearing stage (see, to that effect, judgment of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 116).166In all events, it must be noted that the clarification provided at the hearing does not call into question the finding in paragraph 156 above that it is apparent from the contested decision that the arm’s length principle is being applied in the context of the examination under Article 107(1) TFEU. It is, moreover, apparent from all of the written submissions of the Kingdom of the Netherlands and Starbucks that they understood the contested decision to mean that the arm’s length principle as described by the Commission in the contested decision was being applied in the context of the examination of a national tax measure under Article 107(1) TFEU.167Fourth, the Kingdom of the Netherlands and Ireland submit, in essence, that the Commission wrongly asserted, in the contested decision, that there was a general principle of equal treatment in taxation on the profits of integrated and non-integrated undertakings.168It is true that the Commission indicated, in recital 264 of the contested decision, that the arm’s length principle was a general principle of equal treatment in taxation, which fell within the scope of Article 107(1) TFEU. However, that wording must not be taken out of context and cannot be interpreted as meaning that the Commission asserted that there was a general principle of equal treatment in relation to tax inherent in Article 107(1) TFEU, which would give that article too broad a scope.169In any event, it is implicitly but necessarily evident from recitals 258 to 267 of the contested decision, and in particular from recitals 262 and 265 of that decision, that the arm’s length principle as described by the Commission in the contested decision was perceived by the Commission only as a tool enabling it to check that intra-group transactions are remunerated as though they had been negotiated between independent companies. The argument of the Kingdom of the Netherlands and of Ireland does not alter the finding in paragraphs 147 to 156 above that the Commission was entitled to examine, in its analysis under Article 107(1) TFEU, whether intra-group transactions were remunerated as though they had been negotiated under market conditions.170Accordingly, the Court must reject the argument of the Kingdom of the Netherlands and of Ireland in that respect.171Fifth, the Kingdom of the Netherlands and Starbucks argue that the Commission made an assessment in the light of the arm’s length principle, but that it did not examine whether there was an advantage by reference to national tax law. In that regard, it must be noted that it is clear from recitals 267, 341, 415 and 416 of the contested decision that the Commission carried out its examination of whether there was an advantage by reference to the general Netherlands corporate income tax system. It will be necessary to verify whether that examination was vitiated by error in respect of the specific examination of the six lines of reasoning and, if necessary, in respect of the limited reference system.172On the basis of the foregoing, it is necessary to reject the second plea in Case T‑760/15 and the second part of the first plea in Case T‑636/16, according to which the Commission committed an error in identifying an arm’s length principle as a criterion for assessing the existence of State aid. It is therefore in the light of the considerations set out in paragraphs 137 to 170 above that the merits of each line of reasoning set out in the contested decision should be analysed (see paragraphs 53 and 54 above). D. Dispute as to the principal reasoning regarding the existence of a tax advantage in favour of SMBV (recitals 275 to 361 of the contested decision) 1. Choice of the TNMM in the case at hand and the lack of examination of the intra-group transaction for which the APA had in reality been requested (first line of reasoning) 173The first part of the third plea in Case T‑760/15 as well as the third part of the first plea and the first and second parts of the second plea in Case T‑636/16 concern the Commission’s analysis, conducted in the contested decision, according to which, first, the transfer pricing report had not identified or analysed the transaction for which a price was effectively determined in the APA, namely, the royalty, and, second, the CUP method should have been given priority, in order to determine the level of the royalty, over the TNMM, in order to determine the net profit of SMBV’s production and distribution activities. Those two complaints made against the APA, as a question of principle, precede the Commission’s concrete analysis, according to which the level of the royalty paid by SMBV to Alki should have been zero and the level of the prices of green coffee beans from 2011 onwards was too high, questions which will be examined in paragraphs 217 to 404 below.174By the first part of the third plea in Case T‑760/15, the Kingdom of the Netherlands disputes the Commission’s argument that the TNMM does not allow the conformity of the royalty with the arm’s length principal to be examined and assessed distinctly. It maintains that that argument is erroneous and is not such as to cast into doubt the relevance of the choice of the TNMM in the case at hand.175First, the Kingdom of the Netherlands submits that it is apparent from the contested decision that the Commission made the transfer pricing method an end in itself, when it was merely a means of determining the conformity of the conditions of intra-group transactions with the arm’s length principle. If the method chosen led to an arm’s length outcome, the Commission cannot cast it into doubt on the ground that the royalty and the mark-up applied to the resale price of green coffee beans were not examined individually. In addition, according to the Kingdom of the Netherlands, the Commission could not take the view that the OECD Guidelines prioritised the use of traditional methods, such as the CUP method, over transactional methods, such as the TNMM. However, it is apparent from point 2 of the transfer pricing decree and from paragraph 4.9 of the 1995 version of the OECD Guidelines that the taxpayer is free to choose a transfer pricing method, provided that the method chosen leads to an arm’s length outcome.176Second, the Kingdom of the Netherlands considers that, unlike what the Commission maintains in the contested decision, the only transactions concerned by the APA are the roasting of coffee beans and the provision of logistics and administrative services on behalf of Alki. The purpose of the APA is not to determine whether the royalty is in conformity with the arm’s length principle. Moreover, the Kingdom of the Netherlands observes that, in the contested decision, the Commission did not explain the reasons which led it to assume that the APA had been requested and concluded for a licensing arrangement and for the royalty.177Third, the Kingdom of the Netherlands submits that the TNMM was the method the best suited to the case at hand. According to the Kingdom of the Netherlands, the main reason for choosing that method was the lack of similar unrelated external or internal transactions, necessary for the purposes of applying the CUP method, with which it would be possible to compare the transactions between Alki and SMBV and, therefore, the remuneration that was associated with them. However, according to the Kingdom of the Netherlands, the TNMM could be applied in SMBV’s case since information was indeed available on the operational profit of the undertakings that were comparable to it in terms of function, namely, coffee bean roasting.178By the third part of the first plea and by the second part of the second plea in Case T‑636/16, Starbucks claims that the TNMM was the most appropriate method for calculating transfer pricing in the case at hand and that the Commission could not reject that method for the reasons it provided in the contested decision. According to Starbucks, as the TNMM was correctly applied to calculate an arm’s length remuneration for SMBV, there is no need to assess separately the royalty payments by SMBV, given that those payments could not have impacted SMBV’s remuneration, as calculated on the basis of the TNMM.179More specifically, first, Starbucks argues that Commission’s assertion that there is a strict rule favouring use of the CUP method has no basis in Netherlands tax law or in the OECD Guidelines. In addition, Starbucks is of the view that the use of a different transfer pricing method does not in itself result in a lower tax liability, as all methods attempt to achieve a profit allocation reflecting arm’s length transfer prices. Merely alleging a methodological error does not equate to proving that an advantage exists.180Second, according to Starbucks, the Commission compared the price of green coffee beans and the royalty with ‘controlled’ transactions (intra-group) in disregard of Netherlands tax law. Starbucks chose the TNMM since the roasting contract combined various intra-group transactions by which routine, low-risk activities were entrusted to SMBV, namely, coffee roasting and conditioning activities as well as administrative and logistical support activities.181Third, Starbucks submits that the contested decision contains no argument asserting that the mere absence of identification and analysis of SMBV’s intra-group transactions is sufficient to prove the existence of an advantage and that that argument was raised for the first time in the defence in Case T‑636/16 and is thus inadmissible.182The Commission disputes those arguments.183First, the Commission explains that nowhere in the contested decision does it impose a strict rule concerning the application of the CUP method rather than another method for determining transfer pricing, but that the most reliable method should be chosen based on the circumstances of the case. It first of all established that the APA had been requested and granted for setting the price of the IP licensing arrangement between SMBV and Alki and then concluded that, since a comparable price for the price of that transaction could be determined, the use of the CUP method was preferable, in the case at hand, to the TNMM. The Commission contends that, in doing so, it relied on the guidance set out in the OECD Guidelines.184Second, the Commission maintains that the method approved in the APA for determining the royalty amount, by which SMBV pays Alki the residual profit of the sale of roasted beans and of non-coffee products, cannot result in an arm’s length outcome. According to the Commission, as there were comparable transactions allowing the value of the royalty to be assessed, the tax advisor should have used the CUP method to define the royalty price owed by SMBV to Alki, which was the transaction for which the APA was actually requested and granted. In addition, the prices invoiced by SCTC to SMBV for green coffee beans should also have been subject to a transfer pricing analysis. The Commission argues that, contrary to what the Kingdom of the Netherlands and Starbucks maintain, setting the price of individual transactions is the very essence of that principle. Thus, the establishment and analysis of controlled and uncontrolled transactions is a necessary first step of the evaluation of the arm’s length nature of transfer pricing.185Third, the Commission contends that the Kingdom of the Netherlands has not proved that the TNMM was more appropriate, in the case at hand, than the CUP method. The Commission contends, first of all, that the 1995 version of the OECD Guidelines, which was in force at the time the APA was concluded, and the 2010 version, give preference to traditional transaction methods, such as the CUP method, over transactional profit methods. According to the Commission, the particular circumstances justifying the preference of the TNMM over the CUP method are not present in the case at hand. (a) Preliminary observations 186As a preliminary point, it must be noted that the APA, as set out in paragraphs 12 to 16 above, calls for two important clarifications.187First, it is undisputed among the parties that the method applied in the APA is indeed the TNMM. In that regard, the Kingdom of the Netherlands has specified in the application in Case T‑760/15 and stated at the hearing that the reference to the cost plus method in the APA constituted a non-technical use of that expression.188Second, in their answers to measures of organisation of procedure and during the hearing, the parties specified that, in reality and contrary to what is set out in the APA, the royalty to be paid to Alki was not set on the basis of the difference between the operating profit made in connection with the production and distribution function, before royalty-related expenses, and SMBV’s remuneration, but on the basis of the difference between SMBV’s total revenue, on the one hand, and SMBV’s cost base, increased by SMBV’s remuneration, on the other.189In addition, it should be recalled that the Commission set out its first line of reasoning regarding the existence of a selective advantage in recitals 272 and 275 to 285 of the contested decision, primarily in Section 9.2.3.2, entitled ‘The transfer pricing report fails to examine the intra-group transaction for which the … APA was effectively requested and granted’.190First, in recitals 272, 276 to 279 and 285 of the contested decision, the Commission considered, in essence, that the transfer pricing report, accepted by the Netherlands tax authorities upon the conclusion of the APA with SMBV, failed to identify or analyse SMBV’s controlled and uncontrolled transactions, which was a necessary first step of the evaluation of the arm’s length nature of transfer pricing. More specifically, it considered that the royalty payment for the roasting IP licence between Alki and SMBV was the transaction for which the APA had effectively been requested.191Second, in recitals 280 to 284 of the contested decision, the Commission asserted, in essence, that an approach consisting in determining transfer prices for each transaction taken individually was to be prioritised over an approach consisting in determining transfer prices for a function as a whole. In other words, the Commission took the view that the CUP method was to be given priority over transactional profit methods, such as the TNMM. In recital 285 of the contested decision, the Commission maintained that, since the analysis of an arm’s length remuneration for SMBV had been conducted in the transfer pricing report starting from an incorrect point of departure, that remuneration was, by necessity, improperly estimated by using the TNMM. Moreover, it took the view that the transfer pricing report, in order to establish transfer pricing in the case at hand, should have made use of reliable comparisons with available information on transactions between unrelated parties which owned Starbucks at the time the request for the APA was made.192The Commission moreover confirmed in its submissions that its first line of reasoning consisted in criticising the use of the TNMM to determine the net profit of SMBV’s production and distribution activities rather than the CUP method to determine the level of the royalty. It maintained that the validity of its first line of reasoning was not dependent on the conclusion that the arm’s length value of the royalty was zero. The fact that the transfer pricing report failed to identify or analyse SMBV’s controlled and uncontrolled transactions means that a necessary first step in assessing the arm’s length nature of commercial conditions applicable between related parties for transfer pricing purposes was not taken.193Without it being necessary, at this stage, to analyse Starbucks’ complaint that the contested decision contains no argument asserting that the mere absence of identification and analysis of SMBV’s intra-group transactions is sufficient to prove the existence of an advantage, an argument raised for the first time in the defence in Case T‑636/16 and thus inadmissible, it is appropriate to examine whether the criticisms formulated by the Commission as part of its first line of reasoning justified the finding that the APA conferred an advantage on SMBV on the ground that the very choice of the transfer pricing method, proposed in transfer pricing report, did not result in a reliable approximation of a market-based outcome, in line with the arm’s length principle. (b) Burden of proof 194It must be borne in mind that, in its review of State aid, the Commission must, in principle, provide proof in the contested decision of the existence of the aid (see, to that effect, judgments of 12 September 2007, Olympiaki Aeroporia Ypiresies v Commission, T‑68/03, EU:T:2007:253, paragraph 34, and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 95). In that context, the Commission is required to conduct a diligent and impartial examination of the measures at issue, so that it has at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 63).195By contrast, it is for the Member State which has made a distinction between undertakings to show that it is actually justified by the nature and the general scheme of the system in question. The concept of State aid does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective where that differentiation arises from the nature or the general scheme of the system of which they form part (see, to that effect, judgment of 21 June 2012, BNP Paribas and BNL v Commission, C‑452/10 P, EU:C:2012:366, paragraphs 120 and 121 and the case-law cited).196It follows that it was for the Commission to show, in the contested decision, that the requirements for a finding of State aid, within the meaning of Article 107(1) TFEU, were met. In that regard, it must be held that, while it is common ground that the Member State has a margin of appreciation in the approval of transfer pricing, that margin of appreciation cannot lead to the Commission being deprived of its power to check that the transfer pricing in question does not lead to the grant of a selective advantage within the meaning of Article 107(1) TFEU. In that context, the Commission must take into account the fact that the arm’s length principle allows it to verify whether the transfer pricing accepted by a Member State corresponds to a reliable approximation of a market-based outcome and whether any variation that may be identified in the course of that examination does not go beyond the inaccuracies inherent in the methodology used to obtain that approximation. (c) Intensity of review to be conducted by the Court 197With regard to the intensity of the review to be conducted by the Court in the present case, it should be noted that, as is clear from Article 263 TFEU, the object of an action for annulment is to review the legality of the acts adopted by the EU institutions named therein. Consequently, the analysis of the pleas in law raised in such an action has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 84).198In the field of State aid, it must be recalled that State aid, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Courts of the European Union must, in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (judgments of 4 September 2014, SNCM and France v Corsica Ferries France, C‑533/12 P and C‑536/12 P, EU:C:2014:2142, paragraph 15, and of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 87).199As to whether a method for determining transfer pricing of an integrated company complies with the arm’s length principle, it should be borne in mind that, as has already been indicated above, when using that tool in carrying out its assessment under Article 107(1) TFEU, the Commission must take into account its approximate nature. The purpose of the Court’s review is therefore to verify whether the errors identified in the contested decision, and on the basis of which the Commission found there to be an advantage, go beyond the inaccuracies inherent in the application of a method designed to obtain a reliable approximation of a market-based outcome. (d) Failure to identify and analyse the royalty paid by SMBV to Alki in the APA 200With regard to the finding made by the Commission, according to which the transfer pricing report did not identify or analyse the transaction for which a price was actually determined in the APA, it must be noted that, in recital 276 of the contested decision, the Commission explained that SMBV’s taxable profit was lower than that actually recorded on account of the acceptance by the Netherlands tax authorities because the actual level of profits generated by SMBV in the Netherlands was to be reduced, for corporate tax purposes, by the amount of the royalty for the roasting IP. In recitals 277 and 278 of the contested decision, the Commission inferred that the royalty for the roasting IP was the transaction for which the APA had effectively been requested and that the methodology for determining the level of that royalty as an adjustment variable was the transaction effectively being transfer priced by the APA. It also considered that the price of coffee beans should have undergone an analysis.201In that regard, first, it is sufficient to hold that mere non-compliance with methodological requirements does not necessarily lead to a reduction of the tax burden. It is further necessary for the Commission to demonstrate that the methodological errors that it identified in the APA do not allow a reliable approximation of an arm’s length outcome to be reached and that they led to a reduction in the taxable profit compared with the tax burden resulting from the application of normal taxation rules under national law on an undertaking placed in a comparable factual situation to SMBV and carrying out its activities under market conditions. Thus, the mere finding of a methodological error does not in itself suffice, in principle, to demonstrate that the APA conferred an advantage on SMBV and, thus, to establish that there is State aid within the meaning of Article 107 TFEU.202Second, it should be recalled that the various methods for setting transfer prices – whether it be the CUP method or the TNMM – endeavour to attain profit levels reflecting arm’s length transfer prices and that it cannot be concluded, as a rule, that one method does not allow a reliable approximation of an arm’s length outcome to be reached.203It follows that the mere fact that, according to the Commission, neither the transfer pricing report nor the APA identified the royalty as the transaction for which a transfer price was in reality determined in the APA and that they did not analyse whether the royalty was in conformity with the arm’s length principle does not suffice to demonstrate that that royalty was not actually in conformity with the arm’s length principle. That finding alone therefore did not prove that the APA conferred an advantage on SMBV.204In addition, it must be pointed out that the Commission’s argument that the transfer pricing report did not identify or analyse the royalty as the transaction for which a price was actually determined in the APA is based on the assertion that, in the transfer pricing report, the payment of a royalty is not regarded as the adjustment variable of the structure of that suggested remuneration. In that regard, it should be noted that the transfer pricing report in no way disregards the licensing arrangement concluded between SMBV and Alki. That arrangement is mentioned both in the description of the Starbucks group’s activities in the EMEA region and the Netherlands and in the graphic representation of the EMEA region’s transactions. Therefore, the Starbucks group’s tax advisor did indeed take into account those transactions when he proposed SMBV’s remuneration.205Accordingly, it is necessary to uphold the complaint of the Kingdom of the Netherlands and of Starbucks according to which the Commission wrongly found that the absence of separate analysis of the royalty in transfer pricing report and in the APA conferred an advantage on SMBV. (e) Necessity of prioritising the CUP method over the TNMM 206So far as concerns the Commission’s position that the CUP method should have been given priority over the TNMM, since that first method was applicable in the case at hand, first, it should be noted that, in the present case, the APA accepted the use of the TNMM in order to determine the operating margin for SMBV’s production and distribution activities. The APA, however, accepted that the royalty was determined as, in essence, the difference between the operating profit generated in connection with the production and distribution function and the operating margin. It follows that the APA does not directly provide for the use of a transfer pricing method to calculate the level of the royalty, which is defined as a purely residual value.207It is true that it follows from the considerations set out in paragraphs 148 to 156 above that, since the royalty was an intra-group transaction the level of which was determined in the APA, the Commission was entitled to examine as part of its analysis under Article 107(1) TFEU, using a transfer pricing method which it regarded as appropriate in the case at hand, whether the royalty amount was determined as if it had been negotiated in market conditions.208However, with regard to the contested decision, while the Commission contends that the CUP method should have been given priority over the TNMM in order to be able to determine the arm’s length level of the royalty, it fails to consider that, actually, in the APA, the level of the royalty was not calculated using a transfer pricing method, in particular the TNMM. On the contrary, the TNMM was used in the APA to determine SMBV’s remuneration for the production and distribution activities. Thus, the Commission’s position essentially amounts to criticising the fact that the TNMM was used to determine SMBV’s remuneration for the production and distribution activities instead of the CUP method, which should in the Commission’s view have been used to calculate the level of the royalty.209In that connection, it must be held that the two methods are applied to calculate the price level of different intra-group transactions. However, while the Commission argues that the OECD Guidelines expressed a certain preference towards using traditional methods, such as the CUP method, it cannot mandate the examination of another transaction than that for which the APA determined a transfer price on the basis of the TNMM solely because, for that other transaction, a transfer price should have been determined on the basis of the CUP method. The rule invoked by the Commission merely allows for a choice of the transfer pricing method appropriate for the same type of transaction or closely linked transactions. Choosing the transfer pricing method is not an end in itself, but is done with a view to the intra-group transaction for which the arm’s length level must be determined and not the other way around.210Second, it must be recalled that, as has been set out in paragraphs 146 and 147 above, a tax measure confers an economic advantage where it leads to a reduction of the tax burden compared to what it would normally have had to bear in the absence of that measure.211As has been held in paragraph 201 above, mere non-compliance with methodological requirements does not necessarily lead to a reduction of the tax burden. It follows that the mere finding by the Commission of errors in the choice or application of the transfer pricing method does not, in principle, suffice to demonstrate the existence of an advantage.212However, in recitals 275 to 285 of the contested decision, the Commission invokes no element grounding the conclusion – without a comparison being carried out with the result that would have been obtained using the CUP method – that the choice of the TNMM necessarily leads to a result that is too low. In that context, the Commission merely contends, in recital 284 of the contested decision, that the taxpayer was under an obligation to verify whether the transfer pricing method chosen by the latter led to a reliable approximation of an arm’s length price, before the tax authorities can accept an APA request based on that method.213In addition, it must be held that the obligation stated by the Commission falls within the area of tax law and, while breach of it may have consequences in terms of taxation, in the field of State aid, such a breach does not necessarily mean that the method chosen by the taxpayer does not produce a reliable approximation of a market-based outcome, in accordance with the arm’s length principle.214For the sake of completeness, it should be recalled (see paragraph 10 above) that point 2 of the transfer pricing decree provides that the Netherlands tax administration must always conduct a transfer pricing audit from the perspective of the method adopted by the taxpayer at the date of the transaction. That rule complies with paragraph 1.68 of the 1995 OECD Guidelines. It follows that the taxpayer is in principle free to choose a transfer pricing method as long as the method selected leads to an arm’s length outcome for the transaction in question. Even though the taxpayer is expected to take into account, when choosing a transfer pricing method, the reliability of that method in the situation in question, that step does not specifically seek to incentivise the taxpayer to assess all methods and then justify how the method he has chosen produces the best result under the conditions present.215It follows that, in the case at hand, the Commission was not entitled to find that the CUP method had to be given priority, in principle, over the TNMM.216It is therefore necessary to uphold the complaint of the Kingdom of the Netherlands and of Starbucks according to which the Commission wrongly found that the mere choice of the TNMM in the case at hand conferred an advantage on SMBV, without it being necessary to examine Starbucks’ argument disputing the admissibility of certain arguments put forward by the Commission. 2. Whether the royalty paid by SMBV to Alki should have been zero (second line of reasoning) 217Under the second part of the third plea in Case T‑760/15, the Kingdom of the Netherlands claims that the Commission is wrong to argue that the remuneration paid by SMBV to Alki should have been zero and that it resulted in an advantage within the meaning of Article 107(1) TFEU. The contracts concluded between the Starbucks group and external roasters and manufacturers of coffee-derived products on which the comparison conducted by the Commission is based cannot be used for a comparison of the contractual arrangements between Alki and SMBV, based on the CUP method. The Kingdom of the Netherlands is of the view that the Commission did not demonstrate that the TNMM had not led to an arm’s length outcome.218Under the fourth part of the second plea in Case T‑636/16, Starbucks maintains, in essence, that the Commission’s analysis of the royalty relies almost exclusively on evidence that was not available in April 2008. In addition, contrary to Netherlands law and to the OECD Guidelines, the Commission did not establish an arm’s length range for the royalty, but concluded that it should equal zero. Like the Kingdom of the Netherlands, Starbucks is of the view that all third-party manufacturers, mentioned in the contested decision, which, similar to SMBV, supply Starbucks-branded coffee products to stores or retailers, pay substantial royalties for the use of Starbucks’ roasting IP. No royalties are paid by subcontractors which, unlike SMBV, do not supply such products to customers, but merely provide a roasting service to the Starbucks group. Contrary to what is stated in the contested decision, the value of the roasting IP is generated when Starbucks-branded coffee products are sold to stores and retailers, which are willing to pay premium prices for those products. Additionally, Starbucks contends that, contrary to what the contested decision finds, for the period examined, SMBV’s roasting activities have always been profitable.219220First, the Commission argues, in essence, that it compared the amount of the royalties under the seven contracts mentioned in recital 300 of the contested decision with that of the royalty in connection with the relationship between SMBV and Alki. In addition, the Commission explains, in Case T‑760/15, that it also relied on the contracts mentioned in recital 303 of the contested decision and, in Case T‑636/16, that that was not, in principle, the case. The Commission adds that it also relied on the agreements between competitors of the Starbucks group and third coffee roasting companies, mentioned in recitals 305 to 308 of the contested decision, to arrive at the conclusion that the arm’s length value of the royalty paid in the context of the relationship between SMBV and Alki had to be zero. It adds that, in recitals 292 to 298 of the contested decision, it explained the reasons why it had taken the view that those transactions constituted a direct point of comparison enabling the amount of the royalty owed by SMBV to Alki in exchange for the roasting IP to be determined.221Second, the Commission argues that it does not deny that the roasting IP may represent a value. However, the value of that IP is not captured before the Starbucks-branded coffee products are sold by Starbucks stores to final consumers. According to the Commission, the roasting IP therefore cannot be considered to represent a benefit for SMBV for which a royalty should be paid.222It must be recalled that the Commission set out its second line of reasoning in recitals 286 to 341 of the contested decision, under Section 9.2.3.3, entitled ‘The royalty payment to Alki ... resulting from the ... APA is not priced at arm’s length’.223As a preliminary point, two observations should be made.224First, it must be recalled that it is settled between the parties that the royalty constituted, in principle, a deductible charge under Netherlands tax law. It is moreover undisputed that, since it is a transaction within the Starbucks group, the royalty is an intra-group transaction. It is apparent from paragraphs 147 to 156 above that the level of such a transaction must, for the purposes of the determining SMBV’s corporate income tax, be assessed as if it had been determined in market conditions.225Second, it must be noted that, although the Commission considered that the level of the royalty paid by SMBV to Alki should have been zero, it acknowledged in recital 310 of the contested decision that coffee roasting know-how and coffee roasting curves could represent a value. Similarly, in paragraph 126 of its defence in Case T‑636/16, the Commission explains that it does not deny that the roasting IP might represent a value.226It follows that the only matter on which the parties are in disagreement is the level the royalty transfer price would have been if it had been set in market conditions.227In that regard, it should be recalled that, in recitals 286 to 341 of the contested decision, the Commission maintains that the royalty paid by SMBV to Alki should have been zero. According to the wording of the contested decision, the Commission does not contend that the level of that royalty should have been lower than the level of the royalty accepted by the APA, but that no royalty should have been paid. The Commission itself asserts that it did not estimate a range for the level of the royalty on the ground that it should have been exactly zero (recital 340 of the contested decision).228In the contested decision, the Commission based its demonstration according to which the royalty paid by SMBV should have been zero (recital 318 of the contested decision), in essence, on three elements.229So far as concerns the first element, the Commission stated that the variable nature of the royalty payment during the period from 2006 to 2014 gave a ‘first indication’ that the level of that payment bore no relation to the value of the roasting IP (recital 289 of the contested decision). As far as the second element is concerned, the Commission maintained that SMBV did not capture the value of the roasting IP in its relationship with Alki (recitals 310 to 313 of the contested decision). With regard to the third element, the Commission explained that the manufacturing agreements concluded by Starbucks with third parties did not require any royalty for the use of the roasting IP (recitals 291 to 309 of the contested decision).230In addition, in the contested decision, the Commission rejected the arguments raised by the Kingdom of the Netherlands and Starbucks during the administrative procedure. More specifically, the Commission took the view that the royalty did not represent remuneration for the transfer of business risks (recitals 319 to 332 of the contested decision) and that the amount of the royalty was not justified by the amounts paid by Alki to Starbucks US for the technology under the cost sharing agreement (recitals 333 to 338 of the contested decision).231Next, first of all, it is necessary briefly to set out the theory advanced by the Commission in the contested decision concerning SMBV’s royalty-related functions and concerning the relevant normal taxation rules. Those elements are the basis underpinning the analysis of the level of the royalty, conducted by the Commission in the contested decision. Second, it is appropriate to examine Starbucks’ argument that the Commission’s analysis of the royalties could not rely on evidence that was not available in April 2008. Third, it is appropriate to analyse the arguments of the Kingdom of the Netherlands and of Starbucks on the question of who exploited the roasting IP. Fourth, it is necessary to examine whether the Commission was justified in finding, based on a comparison with the royalties provided for in contracts with third parties, that the royalty should have been zero. Fifth, it is appropriate to examine the Commission’s argument, raised at the hearing, according to which, in reality, it maintained in the contested decision that the royalty should have been lower than the level endorsed by the APA. (b) SMBV’s royalty-related functions 232With regard to the functions of SMBV that are relevant for the analysis of the royalty, first of all, it is settled that it roasts green coffee beans which it purchases from SCTC.233Next, the Commission maintains in the contested decision, in particular in recitals 49, 96, 137, 313 and 330, as well as in its submissions, that Starbucks stores, both affiliated and unaffiliated, are required to purchase roasted coffee from SMBV and that SMBV is therefore also the vendor of the roasted coffee.234In addition, in the contested decision, the Commission takes the view that, in line with accounting standards, the stocks that SMBV purchases and sells need to appear on its balance sheet, since it is the entity responsible for contracting and invoicing with stores.235Last, it is apparent from the contested decision, read as a whole, that the Commission considers it incorrect that SMBV is presented in the transfer pricing report as a low-risk coffee producer. In that regard, in recitals 319 to 332 of the contested decision, the Commission inter alia rejected the arguments of the Kingdom of the Netherlands and of the Starbucks correspondents according to which the contractual arrangements between SMBV and Alki, on which the tax advisor’s report was based, effectively cause a transfer of business risks from SMBV to Alki. In addition, the Commission explained that SMBV assumed commercial risks in its relations with SCTC and Starbucks stores.236It follows that, according to the Commission, SMBV is not, with regard to its sales of roasted coffee to Starbucks stores, a toll manufacturer or a supplier, but roasts coffee for its own behalf and acts as vendor. According to the contested decision, ‘toll manufacturing’ is usually understood to mean an arrangement in which a company processes raw materials or semi-finished goods on behalf of another company. (c) Normal taxation rules under Netherlands law 237As has been found in paragraph 146 above, the examination under Article 107(1) TFEU of a tax measure granted to an integrated undertaking means determining, first, the normal taxation rules applicable to the beneficiary of that measure.238In recital 232 of the contested decision, the Commission asserted that the Netherlands rules against which the APA must be examined are the rules of the general Netherlands corporate income tax system. Those rules are summarised in paragraphs 3 to 11 and 35 above.239In the case at hand, it is settled that the APA was concluded in order to enable SMBV to anticipate the application of corporate income tax rules by determining its taxable profit. It follows that the APA forms part of the general Netherlands corporate income tax system, with the objective of taxing undertakings – integrated or stand-alone – subject to corporate income tax.240Therefore, it is in the light of SMBV’s functions as identified in paragraphs 232 to 236 above and the normal taxation rules as identified above that it is appropriate to analyse the question of whether the level of the royalty corresponded to a level that would have been practised under market conditions. (d) Use of evidence by the Commission that was not available when the APA was concluded 241Starbucks claims that, in the contested decision, the Commission relied predominantly on information that was not available in April 2008, when the APA was concluded. More specifically, Starbucks cites the case-law of the EU Courts on the private investor criterion according to which, in order to assess the economic rationality of a certain measure, it is necessary to place oneself in the context of the time at which the financial support measures were adopted, and thus to refrain from any assessment based on events that happened at a later date. According to Starbucks, the same principle is well established under Netherlands tax law and in the OECD Guidelines.242The Commission does not dispute that that principle is applicable in the case at hand and merely argues that a considerable number of arguments in support of its conclusion that the APA did not comply with the arm’s length principle relied on information and data available to the Netherlands tax administration at the time the APA was concluded.243At the outset, it must be stated that the fact that Netherlands tax law and the OECD Guidelines provide, according to Starbucks, that it is necessary to refrain from any assessment based on events that happened after the adoption of an advance pricing agreement to examine whether it complies with the arm’s length principle has no bearing on the examination in this case of the APA in the light of the conditions of Article 107 TFEU.244Starbucks bases its argument on an analogous application of the case-law of the EU Courts according to which, in order to examine whether or not the Member State or the public body concerned has adopted the conduct of a prudent private operator operating in a market economy, it is necessary to place oneself in the context of the period during which the measures at issue were taken in order to assess the economic rationality of the conduct of the Member State or of the public body, and thus to refrain from any assessment based on a later situation (judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 93; see also, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 69 and 71, and of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105).245In that regard, it is sufficient to note that the determination of a transfer price in line with market conditions does not find its basis in the principle of equal treatment between public and private undertakings, but, as the Commission recognises, in the legitimate objective of a prior tax agreement, such as the APA, which is to establish, for reasons of legal certainty, in advance, the application of a tax provision.246It must be held that, to the extent that the Commission considers that the adoption of a prior tax agreement, such as the APA, gave rise to new aid, it should have been notified of that aid before its implementation, in accordance with Article 108(3) TFEU. Had the Commission stated a position on such a notification, however, it could not have taken into consideration information that was not known or reasonably foreseeable at the time of its decision. It therefore cannot criticise the Member State concerned for not having taken into account information that was not known or reasonably foreseeable at the time of the adoption of the agreement in question.247In that context, first, it must be recalled, that it is apparent from Article 1 and recital 40 of the contested decision that the measure contested by the Commission is the APA alone.248Second, while it is true that the APA could be revoked or amended during its validity period, from 2007 to 2017, it is important to note that, in the contested decision, the Commission did not consider that the fact that the Netherlands authorities had not revoked or modified the APA during its validity had conferred an advantage on SMBV. Point 6, second indent, of the APA, read in conjunction with point 4, first indent, stipulates that it comes to an end when a significant change of the facts and circumstances approved by the APA occurs, unless the parties have amicably agreed a revision arrangement. There was therefore nothing to prevent the Commission from finding that a substantial change of the facts and circumstances approved by the APA had taken place and that, consequently, a continued application of the APA conferred a selective advantage on SMBV.249Third, regarding the Commission’s argument that the APA was subject to a half-term check after the sixth accounting year, ending on 31 December 2013, and that the APA was not modified on that occasion, it is sufficient to point out that nowhere in the contested decision did the Commission argue that the absence of modification or revocation of the APA, following that half-term check, had conferred an advantage on SMBV under Article 107(1) TFEU.250It follows that, in those circumstances, the examination of the existence of an advantage conferred by a prior agreement, such as the APA, should be determined in view of the context of the time at which that agreement was concluded. The implication of that finding is that the Commission is required to refrain from assessments based on a situation subsequent to the adoption of the APA.251Accordingly, it is necessary to uphold Starbucks’ argument that, in the circumstances of the case at hand, the Commission could not base its analysis on information that was not available or reasonably foreseeable in April 2008, when the APA was concluded. (e) Whether the roasting IP represented a value for SMBV 252By the second argument set out in recitals 310 to 332 of the contested decision (see paragraph 230 above), the Commission sought, in essence, to demonstrate that the payment of a royalty by SMBV to Alki was not justified, in principle, since SMBV did not, according to the Commission, benefit from the value of the roasting IP. That argument is divided into two parts. In essence, first, the Commission took the view that SMBV did not exploit the roasting IP directly on the market. Second, it found that the coffee roasting activity did not generate sufficient profit to allow for royalty payments. (1) Whether SMBV exploited the roasting IP directly on the market 253As regards the argument that SMBV did not exploit the roasting IP directly on the market, the Commission explained, in recitals 310 to 313 of the contested decision that, first of all, in the specific relationship between Alki and SMBV, the value of the roasting IP was not ‘captured’ by the roaster, namely, SMBV. According to the Commission, the importance of the roasting know-how and curves lay in ensuring a consistent taste associated with the brand and its individual products. It inferred that the value of Starbucks’ roasting know-how and curves was ‘exploited’ only when Starbucks products were sold by stores under the Starbucks brand. In addition, the Commission maintained that, on their own, the roasting know-how and curves did not generate value for the roaster on an ongoing basis if they could not be exploited on the market. As far as it was concerned, in the case of SMBV, the roasting know-how and curves ‘appear[ed]’ to constitute a technical specification according to which the roasting ought to proceed due to a preference or a choice of the purchasing company. The fact that the specifications laid down by Alki regarding the roasting process and, in particular, the roasting curves allowed SMBV to roast coffee sold under the Starbucks brand did not, according to the Commission, bring any benefit to SMBV in terms of increased sales or sales price, given that SMBV did not, in principle, sell its production to final customers who valued the Starbucks brand. Last, the Commission added that SMBV sold virtually all its production to Starbucks-franchised stores and that it therefore did not exploit the roasting IP directly on the market.254In its submissions, the Commission adds that the value of the roasting IP is exploited only where the products are sold to final customers who valued the consistent taste associated with the brand in question. Economically, it would be irrational for the roaster/coffee producer to pay a royalty to use the roasting IP when it does not market the finished product directly. That lies in the fact that, in such a scenario, the roaster/coffee producer uses that IP to roast coffee beans at the request of the contractor.255As a preliminary point, first, [confidential]. It follows that, under the roasting agreement, SMBV was obliged to pay the royalty in return for the use of the roasting IP.256Second, it must be pointed out that the Commission did not argue, in the contested decision, that its thesis according to which the roasting IP is exploited with end consumers constituted a test prescribed by Netherlands tax law. On the contrary, it is apparent from recitals 310 to 313 of the contested decision, read in combination with the introductory recitals setting out the Commission’s position upon the adoption of the opening decision, that the Commission conducted a purely economic examination that it based on the 1995 and 2010 versions of the OECD Guidelines.257In the light of those considerations, it is necessary to examine the merits of the proposition of the Commission, set out in recitals 298, 300 and 310 to 313 of the contested decision, according to which SMBV did not directly exploit the IP on the market on the ground that it did not sell products to final consumers.258In that regard, it must be held that the explanations given in recitals 310 to 313 of the contested decision lack plausibility. The reasoning followed by the Commission in recitals 310 to 313 of the contested decision as well as in its submissions before the Court is, in essence, based on the premiss that the value of the roasting IP is exploited only where the products are sold to final consumers who value the consistent taste associated with the mark in question and where, economically, it would not be rational for the roaster/coffee producer to pay a royalty to use the roasting IP when it does not market the finished product directly. However, that premiss is not borne out by the facts established in the contested decision.259First, it is settled between the parties that the roasting IP was, in principle, capable of representing an economic value. Second, it is also settled between the parties that SMBV is a roaster that was obliged to use the roasting IP to roast its coffee. Third, the Commission maintains that Starbucks stores, both affiliated and unaffiliated, are required to purchase roasted coffee from SMBV and that SMBV is thus also the vendor of the roasted coffee.260In that context, it must be held that the Commission was wrong to focus its analysis on the premiss that the value of the roasting IP is exploited only where the products are sold to final consumers. The question of who ultimately bears the costs corresponding to the compensation of the value of the IP used for coffee production is clearly separate from the question of whether the roasting IP was necessary to allow SMBV to produce roasted coffee according to the criteria stipulated by Starbucks stores, to which it sells, on its own behalf, the coffee.261In the event that SMBV sells the coffee it has roasted to Starbucks stores which require coffee to have been roasted according to Starbucks’ specifications, it is plausible that, in the absence of the right to use, or – to use the terminology of the contested decision – exploit the roasting IP, SMBV would not have been in a position to produce and supply roasted coffee according to Starbucks’ specifications in stores of the same name.262From this it must be concluded that, contrary to what the Commission argues, SMBV’s payment of a royalty to use the roasting IP is not devoid of all economic rationality. The IP was, after all, necessary for exercising SMBV’s economic activity, namely, the production of roasted coffee according to Starbucks’ specifications. It follows that SMBV does indeed derive added value from the use of the roasting IP, without which it could not then resell the roasted coffee to Starbucks stores.263Furthermore, it is necessary to reject the Commission’s argument that it is Starbucks stores which pay royalties to Starbucks Coffee Emea which also include a remuneration [confidential]. First, the submissions under the present line of reasoning in the contested decision do not contain any element such as to substantiate that proposition. Second, the circumstance that Starbucks stores pay a royalty to Starbucks Coffee Emea does not preclude SMBV from being able to pass on [confidential] in the prices invoiced to stores. In addition, the fact that, according to the Commission, Starbucks stores pay a second royalty [confidential] to Starbucks Coffee Emea, [confidential], is capable of conferring an advantage, at most, on the latter, but not on SMBV.264It follows from the foregoing that the Commission was wrong to consider, in recitals 298 and 300 of the contested decision, that an unaffiliated manufacturing company exploits a roasting IP only if it sells its products to end customers. The exploitation of roasting IP is not limited to situations in which a roaster sells its coffee on the retail market to end consumers, but also includes situations such as that of SMBV, in which a roaster is active as a seller on the wholesale market. On the contrary, merely processing coffee on behalf of a contractor that procures the technical specifications for manufacture does not suffice to demonstrate that such an IP is being exploited.265Accordingly, it must be held that the Commission erred in finding that SMBV, as described in the contested decision, did not have to pay a royalty since it did not exploit the roasting IP directly on the market. (2) Whether SMBV has been loss-making on its roasting activities 266The Kingdom of the Netherlands and Starbucks dispute the argument of the Commission, set out in recitals 314 to 317 of the contested decision, that SMBV has generated a loss on its roasting activities since 2010, a situation which did not permit the payment of a royalty for the roasting IP. According to the Kingdom of the Netherlands, the Commission inter alia did not take sufficient account of the fact that the beans purchased by SMBV were also used for the production of coffee by third parties. The Commission accordingly took the view that this demonstrated that the method used to determine the royalty as an adjustment variable, as approved by the APA, was not in conformity with the arm’s length principle.267The Commission retorts that, according to the information it received from Starbucks during the administrative procedure, only a limited portion of roasted coffee was processed by external manufacturers. It was thus right to find that virtually all the beans purchased by SMBV were processed as part of its own coffee-production activities.268In the contested decision, the Commission found, in essence, that SMBV has generated a loss on its roasting activities since 2010 and that the royalty paid by SMBV to Alki was financed in part by SMBV’s other activities, without it having had any prospects of future profits resulting from the roasting. According to the Commission, the coffee roasting activity did not generate sufficient profits to enable the payment of the royalty. Moreover, the Commission contends that the royalty paid by SMBV to Alki for the roasting IP in an intra-group context ‘appear[ed]’ to serve structurally the sole purpose of shifting profits derived from SMBV’s reselling function to Alki.269At the outset, it must be pointed out that the Commission’s reasoning is based on the premiss according to which it is necessary to achieve profits on the roasting activities in order to be in a position to pay a royalty for the roasting IP. The Commission does not, however, demonstrate that the Netherlands tax rules provide that the obligation to pay a royalty is dependent on the profitability of the activity in question. In addition, the question of whether SMBV’s roasting activities were profitable is unrelated to whether an obligation to pay a royalty such as that at issue in the present case could be economically justified.270In that regard, first of all, it must be pointed out that the Commission argues that the roasting activity did not generate sufficient profit for the period commencing in 2010. That finding therefore does not concern the entirety of the validity period of the APA (commencing in 2007).271Next, it must be stated that, as has been indicated in paragraphs 243 to 251 above, in the circumstances of the case at hand, the Commission was required to refrain from any assessment based on a situation subsequent to the APA’s conclusion. The Commission does not explain, in the contested decision, however, how the losses it mentions in recitals 314 to 317 thereof would have been foreseeable when the APA was adopted, when they pertained to SMBV’s situation only from 2010. The Commission has therefore not demonstrated that it was entitled to rely on the fact that SMBV had sustained a loss on its roasting activities since 2010.272Last, in any event, to the extent that Starbucks claims that SMBV’s roasting activities have always been profitable, it is worth recalling that the Commission conducted its analysis based on a comparison of the revenue received from Starbucks stores with the value of SMBV’s purchase of green coffee beans from SCTC. However, under the third line of reasoning, the Commission specifically maintains that the increase of the price of green coffee beans, from 2010 onwards, was too high. It is thus already apparent from the Commission’s arguments in the contested decision that the costs of green coffee were considerably overvalued and that, accordingly, the losses it mentions in the contested decision did not exist, at least in the proportions found in recitals 314 to 317 of the contested decision.273Those findings are sufficient to reject the Commission’s argument that SMBV was not in a position to pay a royalty for the roasting IP due to its having been loss-making on its roasting activities.274In any event, Starbucks claims that the Commission’s calculation is erroneous since no account was taken of the fact that a considerable volume of the total purchased green coffee had not been roasted by SMBV. The Commission contends that that argument is inadmissible, on the ground that that information is new and moreover contradicts the information provided during the administrative procedure.275In that regard, it must be pointed out that the Commission acknowledges, both in footnote 155 of the contested decision and in its submissions, that the information provided by Starbucks during the administrative procedure led to the conclusion that practically all the green coffee purchased by SMBV, apart from ‘limited volumes’ that had been provided to third parties, had also been roasted by SMBV. In that context, the Commission makes reference to the letter of the Starbucks correspondents that it was sent on 23 September 2015. However, it is apparent from that letter that the third party in question had a custom production contract with the Starbucks group which ‘predominantly’ concerned the production of products other than roasted coffee, ‘but also the roasting of green coffee as such (be it in limited volumes)’. The reference to ‘limited volumes’ indicates that the third party in question produced a limited quantity of roasted coffee compared to its production of products other than coffee powder, but not that it produced negligible quantities of roasted coffee. The Commission was thus informed during the administrative procedure that a portion of the green coffee purchased by SMBV had not been roasted by SMBV. The objection made by the Commission as to the admissibility of Starbucks’ argument, based on the notion that that argument is based on information not brought to its attention during the administrative procedure, therefore has no basis in fact and must be rejected.276So far as concerns the merits of Starbucks’ argument that the Commission took into account the entirety of the sums corresponding to SMBV’s purchases of green coffee as costs for its calculation when a considerable volume of the total purchased green coffee had not been roasted by SMBV, it must be noted that the Commission contends that Starbucks did not indicate, in the documents communicated on 29 May 2015, that a meaningful portion of green coffee beans had been roasted by third parties. However, as Starbucks rightly argues, the response to question 2 in the letter of the Starbucks correspondents of 29 May 2015 that the Commission cites in its submissions pertained to the allocation of SMBV’s profits to its various functions, and not to the allocation of its costs to those functions. It follows that the responses of the Starbucks correspondents on which the Commission, according to its submissions, based its finding that SMBV’s roasting function had been loss-making from 2010 did not suffice to enable the Commission to arrive at that conclusion.277Furthermore, as has been set out in paragraph 275 above, when the contested decision was adopted, the Commission already had indication that its calculation, set out in recital 314 of the contested decision, consisting in subtracting the price paid by SMBV to SCTC for green coffee beans from the revenue generated from coffee roasting, was erroneous.278If follows that the Commission has not demonstrated that SMBV has generated a loss on its roasting activities since 2010, a situation which did not permit the payment of a royalty for the roasting IP. (f) Comparison with coffee roasting agreements concluded by Starbucks with third parties and against similar licensing arrangements ‘on the market’ 279By the third argument set out in the contested decision (see paragraph 229 above), the Commission sought to explain, in essence, that the manufacturing agreements concluded by Starbucks with third parties and certain agreements between Starbucks’ competitors and third roasters did not provide for any royalty for the use of the roasting IP (recitals 291 to 309 of the contested decision).280In that context, the Commission explained, in recital 309 of the contested decision, that a transfer pricing analysis of the arm’s length value of the royalty paid to Alki by SMBV for the roasting IP led to the conclusion that no royalty ought to be due for that IP in that specific relationship. It based that finding, first, on an analysis of the manufacturing agreements concluded by Starbucks with third parties and, second, on a comparison with agreements concluded between Starbucks’ competitors and third roasters. It is apparent inter alia from recitals 291 and 299 of the contested decision that the Commission sought to determine the level of an arm’s length royalty between SMBV and Alki.281The Kingdom of the Netherlands and Starbucks are at odds with the Commission, in essence, on whether the contracts concluded by Starbucks with external roasters and with manufacturers of coffee-derived products, on which the comparison conducted by the Commission is based, were relevant to carrying out a comparison with the contractual arrangements between Alki and SMBV, under the CUP method.282In essence, in respect of the question of whether the manufacturing agreements concluded by Starbucks with third parties imply that the royalty should have been zero, the Kingdom of the Netherlands and Starbucks claim that:the contracts concluded between Starbucks and external roasters and manufacturers of coffee-derived products, on which the contested decision is based, could not be used for a comparison with the contractual arrangements between Alki and SMBV, based on the CUP method;the Commission’s analysis of the royalties relies almost exclusively on evidence that was not available in April 2008;the majority of the contracts used by the Commission for comparing transactions pertained to specific coffee-derived products other than roasted coffee beans;Alki’s remuneration was inextricably linked to the purchase of green coffee beans from SCTC, but none of the transactions derived from the contracts used by the Commission for the comparison was inextricably linked to another transaction in that way;all third-party manufacturers, mentioned in the contested decision, which – similar to SMBV – supplied Starbucks-branded coffee products to stores or retailers, paid substantial royalties for the use of the IP for the roasting of Starbucks’ coffee.283As for the manufacturing agreements concluded by Starbucks with third parties, the Commission examined, as a first step, in recitals 291 to 298 of the contested decision, whether the coffee roasting contracts concluded by the Starbucks group with 10 third companies offered a direct point of comparison enabling the amount of the royalty owed by SMBV to Alki to be determined. In that regard, the Commission based its examination on paragraph 1.36 of the 2010 version of the OECD Guidelines, which, for the purposes of the comparability analysis of the controlled transactions of the corporate taxpayer and the comparable transactions on the free market, lists five comparability factors, including the characteristics of the property or services transferred, the functions performed by the parties, the contractual terms, the economic circumstances of the parties and the business strategies pursued by the parties. The Commission also referred, in footnote 147 of the contested decision, to paragraph 1.17 of the 1995 version of the OECD Guidelines. According to the latter, for the purposes of the comparability analysis, the characteristics that may be important are those of the property or services transferred, the functions performed by the parties, the contractual terms, the respective economic circumstances of the parties and the business strategies that they pursue.284As a second step, in recitals 299 to 304 of the contested decision, the Commission found that, on the basis of those 10 uncontrolled transactions, the level of an arm’s length royalty between SMBV and Alki could be determined by using the CUP method.285More specifically, first, in order to determine the level of the royalty using the CUP method, it compared the payment of the royalty from SMBV to Alki with the payments due from third parties to other Starbucks group undertakings, in comparable transactions concluded under similar uncontrolled conditions. Second, the Commission analysed contracts concluded by the Starbucks group with unaffiliated manufacturing company 1 and with the companies designated, in recital 300 of the version of the contested decision published in the Official Journal of the European Union, by the terms ‘unaffiliated manufacturing companies 2, 3, 4, 8, 9 and 10’ (respectively, ‘unaffiliated manufacturing company 2’, ‘unaffiliated manufacturing company 3’, ‘unaffiliated manufacturing company 4’, ‘unaffiliated manufacturing company 8’, ‘unaffiliated manufacturing company 9’ and ‘unaffiliated manufacturing company 10’). It then found that those third parties did not pay royalties under their licensing agreements with the Starbucks group if they did not exploit the roasting IP directly on the market. Third, the Commission found, in respect of the relationships between the Starbucks group and the companies designated, in recital 303 of the version of the contested decision published in the Official Journal of the European Union, by the terms ‘unaffiliated manufacturing companies 5, 6 and 7’ (respectively, ‘unaffiliated manufacturing company 5’, ‘unaffiliated manufacturing company 6’ and ‘unaffiliated manufacturing company 7’), that only the trade mark and technology licence agreements concluded with those third parties by Starbucks contained a royalty payment.286As a third step, the Commission found, in recital 309 of the contested decision, that the coffee roasting contracts concluded by the Starbucks group with ten third companies did not require any royalty for the use of the roasting IP. The Commission thus concluded that no royalty ought to be due for that IP in the specific relationship between SMBV and Alki.287Without it being necessary, at this stage, to examine whether the choice by the Commission of the elements relevant to the comparability analysis, namely, the characteristics of the property or services transferred, the functions performed by the parties, the contractual terms, the respective economic circumstances of the parties and the business strategies that they pursued, was vitiated by error, it must be stated that there exist a number of elements in the context of that analysis that are at odds with the comparability between, on the one hand, the relationships between the Starbucks group and third parties and, on the other hand, the relationships between SMBV and Alki. Those elements are set out in paragraphs 288 to 345 below. (1) Contracts concluded subsequent to the APA 288It must be noted that 7 of the 10 contracts examined by the Commission, namely, those concluded with unaffiliated manufacturing companies 1, 3, 4, 7, 8, 9 and 10, were examined after the APA’s conclusion. Given that the Commission does not explain how those contracts were available or reasonably foreseeable at the time of the APA’s conclusion, it was not in a position, for the reasons set out in paragraphs 243 to 251 above, to base its analysis of the APA on elements subsequent to its conclusion. It is therefore necessary to exclude those seven contracts from the comparison exercise. (2) Contracts concluded with undertakings which do not roast coffee 289As has been set out in paragraphs 232 to 236 above, SMBV is a roaster of green coffee that pays Alki a royalty to use the roasting IP.290In recital 295 of the contested decision, the Commission acknowledged that, of the 10 third companies that concluded a contract with the Starbucks group, certain of them did not roast coffee. It is commonly known, however, that a company which does not roast coffee will not pay a royalty to the Starbucks group for the use of the roasting IP in order to produce roasted coffee.291In addition, in the contested decision, the Commission did not provide elements indicating that the contracts under which the third party did not produce roasted coffee would be comparable with the contract concluded between SMBV and Alki. It is true that that finding does not rule out that the Commission could have based its analysis on the transactions of an undertaking which did not exercise exactly the same functions as SMBV or which was in a different factual situation. In that case, the onus would have been on it to justify such a choice and to explain the adjustments that it would have made in its analysis so as to take into consideration the differences between the undertakings.292Therefore, a contract concluded with an undertaking that was not a roaster could not be used, in the case at hand, without adjustments or amendments, for the purposes of the comparison exercise to demonstrate that the level of the royalty paid by SMBV to Alki should have been zero.293In that regard, the contracts concluded with unaffiliated manufacturing companies 5, 6 and 7 did not concern, according to their description in the contested decision, the roasting of green coffee. Given that, under the contracts at issue, unaffiliated manufacturing companies 5, 6 and 7 did not exercise the function of coffee roaster, it must be concluded that the contracts concluded with the said undertakings could not be used, in the case at hand, for the purposes of the comparison exercise. (3) Contracts with undertakings that did not engage in the sale of roasted coffee to stores or to consumers 294As has been set out in paragraph 235 above, the stock that SMBV purchased from SCTC and sold to stores appears on SMBV’s balance sheet because SMBV is the entity responsible for contracting and invoicing with stores. It follows that SMBV became the owner of the stock of green coffee that it roasted and sold to stores. It must be stated, however, that, if SMBV was a stand-alone company, it would not have been in a position to produce its coffee according to the Starbucks group’s specifications without having obtained the right to use the roasting IP. Therefore, it would not have been able to produce its roasted coffee without paying a royalty.295On the contrary, as has been set out in paragraph 236 above, a toll manufacturer or a supplier processes raw materials or semi-finished products on behalf of the contractor. Consequently, the roasting IP does not represent for it a technical specification for which it will not pay a royalty to the contractor.296In that regard, first, it must be noted that, in the defence in Case T‑636/16, the Commission maintains that, as regards their contractual relationship with the Starbucks group, unaffiliated manufacturing companies 1, 8 and 9 operated under toll-manufacturer agreements and that they mainly produced coffee products such as flavoured coffee, powder for a coffee-based product protected by a registered trade mark or soluble coffee. According to the Commission, unaffiliated manufacturing companies 1, 8 and 9 did not acquire title to the Starbucks components. In addition, the Commission recognised that the agreements with unaffiliated manufacturing companies 1, 8 and 9 differ from the coffee roasting agreement between SMBV and Alki.297Second, in terms of the contract concluded between the Starbucks group and unaffiliated manufacturing company 4, the Commission specified, in recital 148, third indent, of the contested decision, that that manufacturing company subcontracted coffee roasting. In that regard, Starbucks claims that unaffiliated manufacturing company 4 purchases green coffee from the Starbucks group and then roasts it in accordance with the brand curves and recipes for mixing beans provided. It then sells all of its roasted coffee to a subsidiary wholly owned by the Starbucks group, which sells the roasted coffee on to stores.298It follows from that description that unaffiliated manufacturing company 4 did not sell the coffee it roasted to stores. It merely provided roasted coffee, as a subcontractor, to a Starbucks group company engaged in the sale of coffee. In those conditions, the roasting IP constituted a mere technical specification for manufacture. Therefore, the fact that unaffiliated manufacturing company 4 did not pay a royalty to use the roasting IP to the Starbucks group does not mean that SMBV did not have to pay a royalty to Alki.299Third, with regard to unaffiliated manufacturing company 10, the Commission explains in its submissions in Case T‑636/16 that that company manufactured and roasted green coffee beans, purchased directly from green coffee suppliers, and sold all Starbucks-branded coffee products to a single entity of the Starbucks group engaged in their sale.300It follows from that description that unaffiliated manufacturing company 10 did not, therefore, sell its roasted coffee to stores, but to a Starbucks group company engaged in its sale. In those conditions, the roasting IP constituted a mere technical specification for manufacture. It is therefore unsurprising that that company did not pay a royalty to the Starbucks group to use the roasting IP.301The Commission retorts that both unaffiliated manufacturing companies 4 and 10 and SMBV manufacture coffee products of which they are not the independent supplier on the market and that, therefore, they are in comparable situations. However, that argument is unconvincing. It must be recalled that, in order to determine whether SMBV has benefited from an advantage within the meaning of Article 107(1) TFEU, it is appropriate to compare SMBV’s situation, under the measure in question, with the situation of a comparable undertaking exercising its activities autonomously in conditions of free competition (see paragraphs 148 and 149 above). The object of comparison in such an analysis is thus a stand-alone company in SMBV’s situation, namely, a company that roasts coffee and sells it to stores, on the market.302In view of those differences between the situation of SMBV and that of unaffiliated manufacturing companies 1, 4, 8, 9 and 10 and in the absence of additional elements indicating that there was nevertheless comparability between the contracts at issue, it was thus necessary to reject the analysis of the comparability of the contracts concluded between the Starbucks group and those companies. (4) Contracts concerning products other than roasted coffee 303In recital 295 of the contested decision, the Commission recognised that, of the 10 third companies that concluded a contract with the Starbucks group, certain of them produced ready-to-drink beverages or other products and ingredients for drink preparation and that, therefore, not all of the 10 third companies produced roasted coffee. According to the same recital, the contracts which concerned the roasting of green coffee were those concluded with unaffiliated manufacturing companies 2, 3, 4 and 10.304As has been set out in paragraph 296 above, the Commission recognised that, as regards their contractual relationship with the Starbucks group, unaffiliated manufacturing companies 1, 8 and 9 mainly produced coffee products such as flavoured coffee, powder for a coffee-based product protected by a registered trade mark or soluble coffee. Moreover, the Commission recognised that the agreements with unaffiliated manufacturing companies 1, 8 and 9 differ, in that regard, from the coffee roasting agreement between SMBV and Alki.305In addition, it should be recalled that the Commission maintains, in the defence in Case T‑636/16, that its assessment of the third-party agreements does not, in principle, rely on the agreements concluded with unaffiliated manufacturing companies 5, 6 and 7, due to the differences in the licensed know-how – the roasting IP as opposed to the ready-to-drink production know-how – and the place of those companies in the supply chain – the fact that SMBV roasts coffee beans and them sells them on to distributors or third-party manufacturers, whereas unaffiliated manufacturing companies 5, 6 and 7 produce coffee-related products that they sell directly to their customers, in this case mainly supermarkets.306So far as concerns the contractual relationships between the Starbucks group and unaffiliated manufacturing companies 1, 5, 6, 7, 8 and 9, it must be pointed out that, in the contested decision, the Commission does not provide elements indicating that the contracts under which the third party does not produce roasted coffee to be sold to stores related or unrelated to the Starbucks group are comparable to that concluded between SMBV and Alki. It is apparent in particular from recitals 298 and 300 of the contested decision that, in the context of the comparison exercise between the royalty paid by SMBV to Alki and the royalties provided for, depending on the case, in the 10 contracts concluded between the Starbucks group and the third parties, the Commission considered that the element relevant for comparability was the question of whether the third party directly exploited the IP on the market by selling products to final consumers.307However, unaffiliated manufacturing companies 1, 5, 6, 7, 8 and 9 did not have, according to the Commission, a roasting function which involved the same product as SMBV’s coffee roasting function. The Commission therefore has not managed to demonstrate that those contracts were sufficiently comparable with the roasting contract concluded between SMBV and Alki.308Consequently, in the case at hand, for that reason, the contracts between the Starbucks group and unaffiliated manufacturing companies 1, 5, 6, 7, 8 and 9 must also be excluded from the comparison exercise. (5) Contract which provides for the payment of a royalty for the use of the roasting IP 309In respect of the contract concluded between the Starbucks group and unaffiliated manufacturing company 3, the Commission maintained, in the second indent of recital 148 of the contested decision, that, under a roasting licence arrangement, unaffiliated manufacturing company 3 provided coffee roasting services. Coffee was sold to the Starbucks group and to a joint venture, held by unaffiliated manufacturing company 3 and the Starbucks group (‘the joint venture’), that was operating Starbucks stores in a country outside the European Union. Unaffiliated manufacturing company 3 paid the Starbucks group a royalty for the roasting of coffee, the amount of which was fixed, for a certain quantity of green coffee produced and sold to the joint venture.310In recital 301 of the contested decision, the Commission added that unaffiliated manufacturing company 3 paid a royalty to the Starbucks group only when it sold its production to the joint venture. In that case, according to the Commission, unaffiliated manufacturing company 3 ‘directly exploit[ed] the roasting IP on the market through a related party’, so that the royalty payment ‘appears’ to cover the distribution of Starbucks-branded products to third parties by the joint venture. According to that Commission, that conclusion is confirmed by the fact that, when unaffiliated manufacturing company 3 sold the roasted coffee on to the Starbucks group, rather than to the joint venture, and the distribution and exploitation on the market of the brand was ensured by the Starbucks group, no royalty was paid by unaffiliated manufacturing company 3 to Starbucks for the roasting IP.311In that regard, it must be found that it is settled between the Commission and Starbucks that, when unaffiliated manufacturing company 3 sells its roasted beans to the joint venture for a given territory, it pays the Starbucks group a roasting licence fee at a fixed amount per quantity of roasted and packaged coffee and that, when it sells its roasted beans to Starbucks [confidential] no roasting licence fee is paid.312That finding clearly contradicts the Commission’s theory that unaffiliated manufacturing company 3 did not pay a royalty under its licensing agreement concluded with the Starbucks group if it did not exploit the roasting IP directly in respect of end consumers on the market. As Starbucks argues – rightly – the obligation of unaffiliated manufacturing company 3 to pay a royalty depends solely on its sales of roasted coffee to stores in the territory concerned, irrespective of whether the stores distribute the roasted coffee to end consumers or not.313In that context, the Commission contends that there is a difference between the situation of unaffiliated manufacturing company 3 and that of SMBV, which lies in the fact that unaffiliated manufacturing company 3 and Starbucks stores in the territory concerned are controlled by the same party, namely, the parent company of unaffiliated manufacturing company 3. The Commission adds that the payment of a royalty by unaffiliated manufacturing company 3 ‘appears’ to be made on behalf of the joint venture, rather than remuneration for the use of the roasting IP by unaffiliated manufacturing company 3.314First of all, it must be stated that, as has been set out in paragraphs 194 to 196 above, it is, in principle, for the Commission to provide proof, in the contested decision, of the existence of aid.315That obligation is not met if the Commission merely makes prima facie findings, such as, in the case at hand, when it is limited to finding that the payment of a royalty ‘appears’ to cover the distribution of Starbucks-branded products to third parties or it ‘appears’ to be made on behalf of the joint venture.316Next, it should be noted that the difference between SMBV’s situation and that of unaffiliated manufacturing company 3 noted by the Commission, namely, the fact that unaffiliated manufacturing company 3 sold its roasted coffee through the joint venture to Starbucks stores present in the territory concerned, does not call into question the fact that a roasting licence fee was paid, at a fixed amount per quantity of roasted and packaged coffee, by unaffiliated manufacturing company 3 to the Starbucks group. [confidential]317Last, the Commission itself maintains, in its submissions, that, since unaffiliated manufacturing company 3 and the joint venture are related parties, it is not possible to make a direct comparison to the relationship between SMBV and Starbucks stores in the EMEA region. That finding undermines all the more the Commission’s theory that the contractual relationships between unaffiliated manufacturing company 3 and the Starbucks group are comparable to those between SMBV and Alki and permit the conclusion that the royalty should be zero.318In summary, it follows from the foregoing that, contrary to what the Commission asserted in the contested decision, unaffiliated manufacturing company 3 was a roaster that paid a royalty to the Starbucks group for the use of a roasting IP.319Accordingly, for the reasons set out in paragraphs 289 to 318 above, it must be held that the Commission has not managed to demonstrate that a comparison between, on the one hand, the contractual relationships between Alki and SMBV and, on the other hand, the contractual relationships between the Starbucks group and unaffiliated manufacturing companies 1 and 3 to 10 permit the conclusion that the level of the royalty paid by SMBV to Alki should have been zero. (6) Contract concluded with unaffiliated manufacturing company 2 320It is apparent from recital 148, first indent, of the contested decision that, in order to subcontract the roasting of coffee, the Starbucks group entered into two types of agreements with unaffiliated manufacturing company 2, which were amended at several instances. First, pursuant to a technology licence agreement, concluded before 2008, an affiliate of the Starbucks group granted a non-exclusive licence to unaffiliated manufacturing company 2 to use, inter alia, Starbucks’ technology and know-how to produce and sell roasted coffee to selected third parties with which Starbucks entered into supply agreements, namely, in essence, unaffiliated manufacturing company 5. In return, unaffiliated manufacturing company 2 was to perform services to ensure that the roasted coffee was of high quality. To that end, unaffiliated manufacturing company 2 was to comply, inter alia, with certain quality assurance standards established by Starbucks. The technology licence agreement stipulated that unaffiliated manufacturing company 2 did not have to pay any fees for the licence. Second, a green coffee supply agreement stipulated that unaffiliated manufacturing company 2 had the obligation to buy green coffee exclusively from the Starbucks group for a fixed fee per a certain quantity. The technology licence agreement and the supply agreement were concluded with two different entities within the Starbucks group.321In recitals 300 and 302 of the contested decision, the Commission added that unaffiliated manufacturing company 2 did not pay a royalty under its licensing agreement concluded with the Starbucks group if it did not exploit directly on the market the roasting IP by selling products to end consumers. However, it must be stated that it is apparent from the description in recital 148 of the contested decision that unaffiliated manufacturing company 2 did not sell its roasted coffee to end consumers.322As regards the question of whether unaffiliated manufacturing company 2 was in a situation comparable to that of SMBV, it must be held that the contractual arrangement between unaffiliated manufacturing company 2 and the Starbucks group is closely linked to that concluded between unaffiliated manufacturing company 5 and the Starbucks group. Several years before the APA’s conclusion, unaffiliated manufacturing company 5 and SMBV concluded a supply agreement in which the Starbucks group undertook to supply roasted coffee beans, concentrate and other coffee ingredients to unaffiliated manufacturing company 5.323At a later stage, but before the APA’s conclusion, unaffiliated manufacturing company 5 and SMBV concluded a [confidential] delegation agreement [confidential] to which unaffiliated manufacturing company 2 acceded on the same day. [confidential]324[confidential]325326It follows from those provisions that the role of unaffiliated manufacturing company 2 was different from that of SMBV, which, according to the Commission, was a roaster that engaged also in the sale of roasted coffee to Starbucks stores. According to the delegation agreement, unaffiliated manufacturing company 2 supplied unaffiliated manufacturing company 5, for the purposes of enabling the Starbucks group to meet its contractual obligations towards the latter, as followed from the supply agreement.327In that context, it must be recalled that, in the contested decision, the Commission categorised the contractual arrangement between the Starbucks group and unaffiliated manufacturing company 2 as a subcontract (see paragraph 320 above). However, as has been set out in paragraph 236 above, such a subcontractor is limited to carrying out roasting in accordance with the instructions of the contractor in order to meet its contractual obligation to provide roasted coffee. In those conditions, the roaster is merely following the ordering party’s technical requirements.328It must be pointed out that the Commission does not provide, in the contested decision, sufficient evidence indicating that such a subcontract would be comparable to that concluded between SMBV and Alki for the purposes of determining the level of the royalty.329In any event, even supposing that, for the purposes of the determination of the level of the royalty, the contractual arrangements between the Starbucks group and unaffiliated manufacturing company 2 were comparable to those concluded between SMBV and Alki, the Commission is limited, in recital 302 of the contested decision, to rejecting Starbucks’ argument that the higher mark-up on green coffee beans that unaffiliated manufacturing company 2 paid to the Starbucks group represented a ‘disguised’ remuneration for the roasting IP. In that context, first, it asserted that the mark-up ‘appears’ to have been passed on entirely to unaffiliated manufacturing company 5. Second, it maintained that there ‘[we]re no indications that any mark-up to a purchase price would not be passed on directly to [unaffiliated manufacturing company 5] or otherwise affect the commercial conditions between [unaffiliated manufacturing company 5] and [unaffiliated manufacturing company 2], as this contractual arrangement was not concluded independently of the contractual arrangement between [the Starbucks group] and [unaffiliated manufacturing company 5]’.330However, the considerations set out in paragraph 302 of the contested decision have no bearing on the finding according to which the position of unaffiliated manufacturing company 2 as ‘subcontractor’ is not sufficient to conclude that SMBV, as a seller of its roasted coffee, should not have paid any royalty for the use of the roasting IP.331In addition, regarding the question of whether the higher mark-up on green coffee beans paid by unaffiliated manufacturing company 2 to the Starbucks group represented the remuneration for a coffee roasting IP, it must be noted that the Commission’s argument that the higher mark-up on coffee beans paid by unaffiliated manufacturing company 2 ‘appears’ to be transferred to unaffiliated manufacturing company 5 is speculative and does not rule out, as such, the possibility that a remuneration for the use of the roasting IP was actually paid to the Starbucks group by unaffiliated manufacturing company 2.332On the contrary, a number of elements raise doubts about the Commission’s argument that, in the case at hand, unaffiliated manufacturing company 2 paid no remuneration to the Starbucks group for the use of the roasting IP.333First, it must be stated that, at first sight, the level of the price of the green coffee beans provided by SMBV and paid by unaffiliated manufacturing company 2 to the Starbucks group appears to be high in the light of the figures Starbucks cites in footnote 189 of the application in Case T‑636/16. The Commission does not dispute those figures. Moreover, in recital 302 of the contested decision, the Commission did not dispute the Starbucks correspondents’ assertion that that price was high.334Second, the Commission submits that it found in the contested decision that the technology licence agreement stipulated that unaffiliated manufacturing company 2 ought not to pay any royalty for the use of the roasting IP. It considers that, consequently, it was for the Kingdom of the Netherlands and Starbucks to prove that the difference in the prices of green coffee represented a ‘disguised’ remuneration for the roasting IP, which they have not managed to do.335It must be recalled that the 1995 and 2010 versions of the OECD Guidelines, on which the Commission bases its comparability analysis, expressly provide, in paragraph 6.17 thereof, that the compensation for the use of intangible property may be included in the price charged for the sale of goods when, for example, one enterprise sells unfinished products to another and, at the same time, makes available its experience for further processing of those products. In that context, it must be noted that the Commission maintains – rightly – that a price difference is, in principle, different from a royalty, which potentially has different tax consequences, which is moreover restated, in essence, in paragraph 6.19 of the 2010 version of the OECD Guidelines.336In the case at hand, it is clear from the contested decision that Starbucks had argued during the administrative procedure that the higher mark-up on the costs of green coffee beans that unaffiliated manufacturing company 2 paid to the Starbucks group represented a remuneration for the roasting IP.337In those circumstances, the Starbucks correspondents’ arguments, raised during the administrative procedure, could not be rejected on the basis of the mere finding that the technology licence agreement stipulated that unaffiliated manufacturing company 2 ought not to pay any royalty for the use of the roasting IP.338Third, while the Commission is right to argue that the supply of green coffee beans and the sublicensing of IP are separate transactions on the basis of two contracts concluded with two different counterparties within the Starbucks group, the fact remains that the technology licence agreement between the Starbucks group and unaffiliated manufacturing company 2 indicates, [confidential].339Fourth, the Commission adds, in essence, that the difference in price between the green coffee beans unaffiliated manufacturing company 2 buys and those that SMBV buys can have various explanations, such as, first of all, the strong bargaining power of Starbucks [confidential]; then, the fact that unaffiliated manufacturing company 2 does not buy its green coffee beans directly from SCTC but from Starbucks [confidential] – which buys them from SCTC and sells them on to it – which could also lead to an extra mark-up on the cost to cover the value added by Starbucks [confidential], or, last, the differences in delivery terms.340First of all, it must be noted that the Commission’s argument that Starbucks [confidential] had a bargaining power that was so strong compared to unaffiliated manufacturing company 2 that it could demand a far higher price than that which it was capable of obtaining from [confidential] SMBV is unconvincing.341Next, while the Commission contends that the fact that unaffiliated manufacturing company 2 does not buy its green coffee beans directly from SCTC but from Starbucks [confidential] – which buys them from SCTC and sells them on to it – could also lead to an additional mark-up on the cost to cover [confidential], it does not explain [confidential]. Starbucks retorts, in that respect, that SCTC takes care of the entire procurement process, including transportation from the port of origin to the port of destination, whereby the coffee beans are delivered to unaffiliated manufacturing company 2 without any processing whatsoever. Moreover, according to Starbucks, for reasons of administrative efficiency, [confidential]. That argument of the Commission should therefore also be rejected.342Last, the Commission argues that there is a difference in the delivery terms of green coffee beans enjoyed by unaffiliated manufacturing company 2 and SMBV. It contends that Starbucks [confidential] sells green coffee beans to unaffiliated manufacturing company 2 CIF (cost, insurance and freight) at the port of entry in the territory in which that manufacturing company carries out its economic activity, while the green coffee beans that SMBV obtains from SCTC are delivered FOB (free on board) at the port of Amsterdam (Netherlands). However, it must be pointed out, first, that the Commission does not quantify its contention that the difference in costs for an FOB delivery as opposed to a CIF delivery may be considerable. Second, Starbucks, for its part, claims that the difference in costs between an FOB delivery and a CIF delivery is too low to explain the ‘higher mark-up’. The Commission has therefore not managed to substantiate its contention that the ‘higher mark-up’ could not represent, even in part, a remuneration for the use of the roasting IP, since it was due entirely to the difference in delivery terms between the contracts in question.343In those circumstances, neither the succinct reasoning set out in recital 302 of the contested decision nor the other explanations provided by the Commission – which Starbucks disputes – allowed the Commission to conclude that the contracts between the Starbucks group and unaffiliated manufacturing company 2 demonstrated, to a requisite legal standard, that that undertaking paid no remuneration to the Starbucks group for the use of the roasting IP.344It follows that, on the basis of what has been set out in the contested decision, the Commission has not managed to demonstrate to a requisite legal standard that the contract between the Starbucks group and unaffiliated manufacturing company 2 indicates that the royalty paid by SMBV to Alki should have been zero.345In summary, it follows that the Commission has not managed to demonstrate, on the basis of its comparison with the contracts concluded with the 10 unaffiliated manufacturing companies, that the royalty should have been zero. The contracts concluded with unaffiliated manufacturing companies 1, 3, 4, 7, 8, 9 and 10 were concluded subsequent to the adoption of the APA. The contracts concluded with unaffiliated manufacturing companies 5, 6 and 7, for their part, involve undertakings which do not roast coffee. The contracts concluded with unaffiliated manufacturing companies 1, 4, 8, 9 and 10 are not resale contracts. The contracts concluded with unaffiliated manufacturing companies 1, 5, 6, 7, 8 and 9 involve products other than roasted coffee and the contract concluded with unaffiliated manufacturing company 3 mentions the possibility of the payment of a royalty. Regarding the analysis of the contract concluded with unaffiliated manufacturing company 2, the Commission’s succinct and speculative arguments do not suffice to demonstrate that that company did not pay any remuneration to the Starbucks group for the use of the roasting IP.346Accordingly, it is apparent from the considerations set out in paragraphs 288 to 345 above that the Commission has not demonstrated that applying the CUP method on the basis of a comparison with the contracts concluded between the Starbucks group and the 10 unaffiliated manufacturing companies would have led to the conclusion that the royalty paid by SMBV to Alki for the roasting IP, had it been set in market conditions, ought to have been zero. (g) Arrangements between Starbucks’ competitors and third-party roasters 347The Commission also compared the royalty paid by SMBV to Alki with what was provided for in a number of arrangements between Starbucks and third-party roasters. The Commission found that it was apparent from that comparability analysis that no royalty for the use of the roasting IP ought to have been paid by SMBV to Alki.348It is apparent from recital 309 of the contested decision that, for the purposes of assessing whether SMBV paid an arm’s length royalty to Alki for the roasting IP, the Commission compared the arrangement between Alki and SMBV to a number of arrangements between Starbucks’ competitors and third-party roasters. In that context, the Commission made reference to the responses of Melitta, Dalmayr and Company Y.349Starbucks disputes the analysis conducted by the Commission. It is of the view that the arrangements concerning Melitta and Company X are ‘toll or contract manufacturer agreements, which – unlike SMBV – supply the finished products back to their principal and not directly to the principal’s customers’. That, in its view, makes those arrangements inherently different from the roasting agreement and, therefore, examining them is irrelevant to the present case. It is thus appropriate to examine whether those three contractual relationships were comparable to the roasting agreement between SMBV and Alki.350First, so far as concerns Melitta, the Commission indicated, in recital 306 of the contested decision, that that competitor company of Starbucks explained to the Commission that when outsourcing the roasting of coffee it did not perceive royalties from third parties, even though it put its roasting curves at their disposal.351In that regard, it must be noted that it is apparent from recitals 207 and 208 of the contested decision that, in certain conditions where roasting capacities were exhausted, Melitta outsourced the roasting of coffee. However, it does not follow from that description that the third party roaster did in fact sell roasted coffee to stores or to other customers.352It must thus be held that, according to the findings set out in the contested decision, Melitta’s situation is not comparable to that of SMBV.353Second, regarding Company Y, which belongs to a group of companies, the Commission indicated, in recitals 211 and 307 of the contested decision, that that company’s roasting was ensured by a group company designated as a toll manufacturer and that that company did not pay any royalty to the group.354It must be stated that it is apparent from that description that the roaster of the group to which Company Y belonged operated as a toll manufacturer. The roaster processed green coffee on behalf of another company within the group to which Company Y belonged. This means that the roaster did not sell roasted coffee to stores or to other customers.355It thus follows from the findings made in the contested decision that Company Y’s situation is not comparable to that of SMBV.356Third, as regards Dallmayr, it is indicated in recital 308 of the contested decision that that competitor considered the payment of a royalty by a company providing roasting to be unusual, as it would have expected the customers to pay the roaster, not the other way around. It is apparent from recitals 204 and 205 of the contested decision that Dallmayr stated that coffee roasting was performed either as a stand-alone business or vertically integrated within a company. It stated that the sourcing function was ‘typically’ integrated with the roasting function. Dallmayr thus considered the payment of a royalty by a third party that provided the roasting services to be rather unusual. In fact, Dallmayr would have expected the customer to pay the roaster, not the other way around.357In that regard, it must be noted that Dallmayr merely states that it considers the payment of a royalty in the area of roasting to be ‘rather unusual’. At the same time, that statement does not preclude such a royalty from being provided for. Dallmayr’s declarations therefore do not rule out the existence of a royalty such as that paid by SMBV.358It is thus apparent from the considerations set out in paragraphs 347 to 357 above that the Commission has not demonstrated that the arrangements between Starbucks’ competitors and third-party roasters, identified in the contested decision, were relevant for the purposes of the analysis of SMBV’s situation. After all, the findings made in the contested decision in that regard do not support the conclusion that those arrangements were comparable to the roasting agreement. Accordingly, even supposing it were proved that no royalty was paid under the arrangements between Starbucks’ competitors and third-party roasters, that circumstance would not suffice to demonstrate that no royalty for the roasting IP ought to have been paid by SMBV to Alki.359For the reasons set out in paragraphs 279 to 358 above, it is therefore appropriate to hold that the Commission has not demonstrated, to the standard required by the case-law cited in paragraphs 194 to 196 above, that the royalty ought to have been zero. Therefore, it is necessary to uphold, on that basis, the actions of the Kingdom of the Netherlands and of Starbucks to the extent that they concern the second line of reasoning of the contested decision. Accordingly, it is not necessary to examine the arguments of the Kingdom of the Netherlands and of Starbucks by which they dispute the rejection of their arguments raised, during the administrative procedure, to justify the royalty’s existence (see paragraph 230 above). (h) Argument that the level of the royalty should have been lower than the level endorsed by the APA 360As has been set out in paragraph 229 above, the Commission indicated, in the contested decision, that the variable nature of the royalty payment during the period from 2006 to 2014 gave a ‘first indication’ that the level of that payment bore no relation to the value of the roasting IP. In that regard, the Commission explained, during the hearing, that it was apparent from recitals 287 to 289 and from footnote 146 of the contested decision that the royalty should have been set at a lower level than that endorsed by the APA.361First of all, it must be noted that, in recital 287 of the contested decision, the Commission merely reproduced certain findings made in the opening decision, but without drawing any consequence whatsoever for the contested decision. Next, in recital 288 of the contested decision, the Commission explained that, for the period from 2006 to 2014, it calculated the annual amount of the royalty paid by SMBV to Alki as a percentage of the annual sales of roasted coffee by SMBV to stores, which, in its view, confirmed its doubts about the fluctuation of the royalty. Last, in recital 289 of the contested decision, the Commission added that the variable nature of the royalty payment gave a ‘first indication’ that the level of that payment bore no relation to the value of the IP for which it was being paid. Footnote 146 of the contested decision mentions, in essence, that, ‘for illustration ... no contract [examined by the Commission] was identified whereby remuneration was paid for coffee roasting technology licen[sed] on the market’.362It must therefore be pointed out that neither recitals 287 to 289 of the contested decision nor footnote 146 of that decision contains any argument according to which the level of the royalty ought to have been lower than the level endorsed by the APA. Those recitals merely state, first, that the variability of the royalty indicate that it was not linked to the value of the roasting IP, and, second, that that royalty in no way had to be paid.363On the contrary, it should be held that it apparent, inter alia, from recitals 290, 318, 339 and 445 of the contested decision that the Commission found that the royalty should have been precisely zero. A fortiori, in recital 340 of the contested decision, the Commission stated that the level of the royalty did not need to be estimated and that, in other words, the profits paid by SMBV to Alki as a royalty for the roasting IP should have been fully taxable in the Netherlands.364It follows from those considerations that the contested decision does not contain any consideration that would have been identifiable by the Kingdom of the Netherlands and Starbucks whereby the royalty should have been set at a lower level than that endorsed by the APA.365In any event, even assuming that it followed reasonably clearly from the contested decision that the royalty should have been set at a lower level than the level endorsed by the APA, the Kingdom of the Netherlands and Starbucks dispute, in essence, the Commission’s argument that the level of the royalty is dissociated from its economic value.366In that context, it should be noted that, indeed, it cannot be denied that the variable nature of the royalty raises questions regarding the economic rationality of the royalty. In the case at hand, the Kingdom of the Netherlands and Starbucks have not provided any convincing explanation justifying the choice of an unusual method to determine the level of the royalty.367However, the residual nature of that royalty simply means that it was calculated, in principle, from the determination of the level of other relevant charges and incomes as well as from an estimate of the level of SMBV’s taxable profit. If those parameters were correctly identified, the mere residual nature of the royalty would not preclude the level of the residual royalty from corresponding to its economic value.368It must be held that the findings made in recitals 287 to 289 of the contested decision were not sufficient to demonstrate that the royalty should have been set at a lower level than that endorsed by the APA for the entire period between 2006 and 2014, inter alia on the ground that the contested decision does not specify what is the level of royalty that the Commission would have regarded as appropriate.369In addition, it must be noted that, in the context of the finding made in recital 289 of the contested decision, the Commission made reference to footnote 146 of the contested decision, which indicated the following:‘[A]n analysis using RoyaltyStat, at 2Q 2015, shows that out of the 168 agreements available through the database across sector whereby only technology was licen[sed], the median value of the royalty was 5 % of sales (based on 143 of these agreements where the licence fee was determined as a percentage of the value of sales rather than amount paid per unit sold). Among all the contracts available through the RoyaltyStat database, no contract was identified whereby remuneration was paid for coffee roasting technology licen[sed] on the market. Such technology was only licen[sed] out in certain instances in combination with trademarks.’370In that regard, it must be stated, first, that those considerations were made only ‘for illustration’, second, that while the Commission argues that a royalty was paid ‘across sector whereby only technology was licen[sed]’ and that there were examples of a ‘licen[sing] out in certain instances in combination with trademarks’, it nevertheless does not explain what the appropriate level of such a royalty would be and, third, that the Commission has not explained the reasons why it is of the view that the data relating to 2015 were reasonably foreseeable at the time of the APA’s conclusion in 2008.371The Commission has thus not substantiated to a requisite legal standard its assertion that, for the entire period between 2006 and 2014, the level of the royalty was not linked to the value of the IP for which it had been paid and that, as a result, an economic advantage had been conferred on SMBV.372It follows that it is necessary to reject the Commission’s argument that it demonstrated in the contested decision that the royalty should have been set at a lower level than that endorsed by the APA.373Accordingly, it is appropriate to uphold the second part of the third plea in Case T‑760/15 and the fourth part of the second plea in Case T‑636/16, to the extent that the Kingdom of the Netherlands and Starbucks dispute that the Commission demonstrated, under the second line of reasoning, that the royalty paid by SMBV to Alki should have been zero and that it resulted in an advantage within the meaning of Article 107(1) TFEU, without it being necessary to examine Starbucks’ argument that the Commission was obliged to determine an arm’s length range for the royalty. 3. Annual determination of the costs of green coffee beans (third line of reasoning) 374The Kingdom of the Netherlands and Starbucks raise, in essence, two complaints against the analysis conducted by the Commission under the third line of reasoning of the contested decision, according to which the level of the price of green coffee beans was overvalued when the question of whether their price was in conformity with the arm’s length principle had not been examined in the APA. By the first complaint, Starbucks claims that the third line of reasoning concerns an element of SMBV’s costs that was outside the scope of the contested measure as defined in the contested decision. By the second complaint, the Kingdom of the Netherlands and Starbucks dispute the finding that the level of the mark-up applied to the costs of green coffee beans sold by SCTC to SMBV was not in conformity with an arm’s length level. (a) Whether the price of green coffee beans was outside the scope of the contested measure 375With regard to the first complaint, Starbucks claims, in essence, that the Commission’s third line of reasoning, relating to the price of green coffee beans, concerns an element of SMBV’s costs that was outside the scope of the contested measure as defined in the contested decision. Starbucks notes that the Commission did not examine the matter of the price of green coffee from the perspective of the time of the APA’s conclusion, that is to say, in April 2008. It adds, in the reply, that certain arguments raised in the defence in Case T‑636/16 indicate that the tax advantages identified by the Commission resulting from the price of green coffee beans for the years 2011 to 2014 cannot be attributed to the APA. The alleged tax advantages resulting from the price of green coffee beans cannot be attributed to the APA, but only to the annual assessments endorsing those prices, and thus fall outside the scope of the ‘contested decision’.376The Commission argues that it is clear from the contested decision as well as from the defence in Case T‑636/16 that the price for green coffee beans should have been examined in order to establish whether the level of that price was too high and led to a reduction in SMBV’s taxable profit.377As regards the scope of the contested measure as established by the contested decision, it must be stated that, according to the wording of Article 1 of the contested decision, the measure which constitutes aid within the meaning of Article 107(1) TFEU and which was implemented by the Kingdom of the Netherlands in infringement of Article 108(3) TFEU is the APA, ‘entered into by the Netherlands on 28 April 2008 with [SMBV]’. It is apparent from that provision and from the definition set out in recital 40 of the contested decision that the contested measure is therefore made up solely of the APA.378In that regard, it must be noted that it follows from the provisions of the APA (see paragraphs 12 to 16 above) that that agreement determines the method for calculating SMBV’s remuneration for its production and distribution activities, which serves to establish the taxable base for SMBV’s payment of Netherlands corporate income tax. In that context, although the APA makes reference to the price of green coffee beans paid by SMBV to SCTC by noting that those costs are excluded from SMBV’s cost base, it does not resolve the question of what level of transfer pricing should be set for the purchase of green coffee beans. It is necessary to distinguish the question of whether the cost of green coffee beans is part of the cost base for the calculation of the taxable base from the question of what is the amount of the transfer price of those transactions which was actually determined for a given year. The APA does not contain any element, however, enabling that amount to be determined, meaning that the Netherlands authorities did not validate, in the framework of the APA, any transfer pricing method or price level in respect of green coffee beans.379It must be specified that, in the absence of determination of price level for the purchase of green coffee beans in the APA, the annual setting of the price of coffee beans, in particular for the years from 2011 to 2014, should have been carried out, if necessary, in the context of annual tax assessments.380It follows that the APA did not make provision for determining annually the level of the costs of green coffee beans and that was, consequently, outside the scope of the contested measure. That finding is not called into question by the Commission’s arguments.381First, the Commission is of the view that the APA, which constitutes the contested measure, should have predetermined transfer pricing for green coffee beans from the 2011 fiscal year onwards. According to recital 447 of the contested decision, SMBV’s taxable profits resulting from the costs of green coffee beans for the fiscal years from 2011 onwards should have been set at a higher level. It is apparent from recitals 360 and 361 of the contested decision that, according to the Commission, the transfer pricing report failed to examine whether the price of green coffee beans, paid by SMBV to SCTC, was at arm’s length. According to the Commission, that ‘means’ that the method proposed in that report for determining SMBV’s taxable profits confers a selective advantage on it. In addition, the Commission maintained, in recital 348 of the contested decision, that the APA should have prescribed an arm’s length price in 2008 from which no deviation would have been possible in 2011, including an increase in the mark-up, unless those prices were replaced or amended in the APA.382However, it must be pointed out that the transfer pricing report contains no examination of the transfer pricing applicable for specific transactions such as the price of green coffee beans requested by SCTC of SMBV. On the contrary, it sets out the method for calculating SMBV’s remuneration for its production and distribution activities, which constitutes the taxable base for the purpose of Netherlands corporate income tax.383The APA consists merely of the acquisition of confirmation, in advance, of the tax treatment of a taxpayer. An anticipatory decision such as the APA does not necessarily cover all aspects of a taxpayer’s tax treatment, but may deal only with certain specific issues. It is moreover apparent from page 28 of the transfer pricing report that the Starbucks group’s tax advisor considered that the transactions relating to green coffee were different transactions from those for which the APA had been requested.384First, the Commission has not provided any evidence indicating that, under Netherlands law – the relevant law in this regard – the question of whether the level of the price of green coffee beans paid by SMBV to SCTC was at arm’s length should have been examined in the APA.385Second, the mere fact that the APA does not predetermine a level of transfer price for green coffee beans does not in itself mean that the APA, in setting the method for determining SMBV’s remuneration, conferred an advantage on SMBV for its production and distribution activities.386Second, the Commission observes, in its submissions, that the technical implementation of the APA, via the annual tax assessments, also constitutes the grant of aid. However, such a finding does not follow from the contested decision. The Commission refers in that regard to Article 1 of the contested decision, which makes reference to the fact that, on the basis of the APA, SMBV ‘[is] enable[d] ... to determine its corporate income tax liability in [the Kingdom of] the Netherlands on a yearly basis for a period of 10 years’. The Commission adds that the contested decision makes numerous references to SMBV’s taxable profit as determined by the APA. In its view, the APA has no value unless it is used ‘to prepare those tax declarations’. In that regard, it cites recital 225 of the contested decision, which states that the APA entails an acceptance by the Netherlands tax administration of a profit allocation proposed by Starbucks on the basis of which SMBV determines the amount of its corporate income tax liability to the Netherlands on a yearly basis.387Contrary to the assertions of the Commission as described above, it must be held that the annual tax assessments relating to SMBV do not implement the APA in a purely technical manner. While it is certainly true that the APA and the transfer pricing report on which it is based predetermine the method for calculating SMBV’s taxable profit on the basis of Netherlands corporate income tax, they in no way allowed for a forecast of the income and annual charges declared by SMBV with a view to the actual transactions that took place during the year in question.388Additionally, the Commission’s assertion that the technical implementation of the APA via the annual tax assessments also constitutes the grant of aid is incorrect. The annual tax assessments implementing the APA are not part of the measure at issue as defined by the Commission – the APA – as is apparent from Article 1 of the contested decision. More specifically, the APA did not determine SMBV’s taxable profit on the basis of the costs of green coffee beans nor did it deal with the issue of the annual determination of the costs of green coffee beans. In addition, nowhere in the contested decision did the Commission criticise the Netherlands authorities for having conferred a selective advantage on SMBV on account of the exclusion of the costs of green coffee beans from the taxable base, but merely disputed the fact that the level of their price had not been verified by the Netherlands tax authorities.389In any event, it should be stated that there was nothing preventing the Commission from defining the contested measure more broadly so as to cover the annual tax assessments relating to SMBV, yet it limited the scope of the contested measure to the APA alone.390Furthermore, it has been set out in paragraph 248 above that the APA could be revoked or modified during its validity, from 2007 to 2017. It must be noted that, in the contested decision, the Commission did not find that the fact that the Netherlands authorities had not revoked or modified the APA during its validity on the ground that the costs of green coffee beans were excessive had conferred an advantage on SMBV.391Accordingly, it is necessary to uphold the complaint that the third line of reasoning concerns an element of SMBV’s costs that was outside the scope of the contested measure. In so far as the level of the costs of green coffee beans for the fiscal years from 2011 onwards was not part of the contested measure, the Commission was not entitled to request the Kingdom of the Netherlands, in accordance with Article 2(1) of the contested decision, read in conjunction with recitals 447 and 448 thereof, to recover the difference between the amount actually paid by way of corporate income tax and the amount that would have been due had the taxable profit of SMBV resulting from the costs of green coffee beans for the fiscal years from 2011 onwards been set at a higher level. (b) Whether the level of the mark-up applied to the costs of green coffee beans sold by SCTC to SMBV was not in conformity with an arm’s length level 392In any event, assuming that the third line of reasoning concerns an element of SMBV’s costs that was covered by the contested measure, it must be stated that the second complaint set out in paragraph 374 above would have to be upheld. From the outset, it should be recalled that the cost of the green coffee beans purchased by SMBV is excluded from the cost base of SMBV determined in the APA. In essence, the price of green coffee beans to be paid by SMBV to SCTC is made up of the costs of SCTC’s goods and a mark-up on those costs.393The contested decision explains that, for the period from 2005 to 2010, the average mark-up on the costs of the green coffee beans delivered by SCTC was [confidential]%, compared to [confidential]% for the period from 2011 to 2014. The corresponding average gross margin on the cost of goods (‘COGS’) for the period from 2005 to 2010 was [confidential]%, whereas the average gross margin on COGS for the period from 2011 to 2014 was [confidential]%. According to the contested decision, Starbucks claimed that the mark-up of [confidential]% applicable on average for the period from 2005 to 2010 corresponded to an arm’s length mark-up. The Commission next assumed that the increase in the mark-up from 2011 onwards could have constituted a remuneration recorded by SMBV on the coffee roasting activities. As the [confidential]% mark-up was also within the range for the supply function put forward by Starbucks during the administrative procedure, the Commission concluded that the [confidential]% mark-up on the costs of green coffee beans during the period from 2005 to 2010 was at arm’s length. Since Starbucks had not provided, according to the contested decision, any ‘valid’ justification for the increase in the average mark-up to [confidential]% from 2011 onwards, the Commission considered that no corresponding deduction to SMBV’s accounting profits as a result of that increase ought to be accepted from that period onwards.394However, to arrive at a reliable approximation of an arm’s length mark-up for the period from 2011 onwards, the Commission accepted increasing the [confidential]% mark-up for the period from 2005 to 2010 by the costs of the C.A.F.E. Practices programme and up to the amount of the costs of [confidential]. According to the Commission, those costs represented [confidential]% of the costs of green coffee beans purchased by SCTC at the end of 2014 and translated into [confidential]% of the price charged to SMBV. An arm’s length mark-up recorded by SCTC for the period from 2011 onwards would therefore be up to [confidential]% of the costs of green coffee beans purchased by SCTC, corresponding to a gross margin of up to [confidential]% on SCTC’s COGS, charged by SCTC to SMBV.395The Commission concluded that the [confidential]% average mark-up on the costs of green coffee beans supplied by SCTC to SMBV effectively applied from 2011 to 2014 did not reflect a reliable approximation of a market-based outcome in line with the arm’s length principle.396First, it must be stated that, as has been indicated in paragraphs 243 to 251 above, in the circumstances of the case at hand, the Commission was required to refrain from any assessment based on a situation subsequent to the APA’s conclusion. The Commission does not explain, however, in the contested decision, how the high level of the costs of green coffee beans for the fiscal years from 2011 onwards, which it discusses in recitals 342 to 359 of that decision, would have been foreseeable at the time of the APA’s adoption, when that was SMBV’s situation from 2011 onwards. The Commission has thus not demonstrated that it was entitled to rely on the fact that SCTC had applied a higher mark-up on the costs of green coffee beans for the fiscal years from 2011 onwards.397Second, even assuming that the gradual increase in the mark-up from 2011 onwards was foreseeable at the time of the APA’s conclusion, it must be stated that the Commission’s approach is unconvincing. As Starbucks rightly contends, the Commission suggests that the mark-up for SCTC should have been set at the level of the average profit before tax that SCTC earned on its inter-company sales in the years before 2008, when such previous inter-company (‘controlled’) transactions cannot serve as a benchmark for ‘marke[t] based’ transfer prices.398In that regard, it should be noted that the Commission maintains that the price that SMBV paid to SCTC was too high from 2011 onwards. It must be recalled that that price is one paid within the Starbucks group. To determine a transfer price, however, the Commission should have compared the price paid by SMBV to SCTC to a price for green coffee beans that a stand-alone company would have paid on the market. It should have determined a price range for green coffee beans that a stand-alone roaster in a comparable situation to SMBV’s would have paid on the market. However, instead of determining and examining such an uncontrolled transaction, the Commission limited its analysis to the controlled transaction in question and simply verified the plausibility of the structure of the costs and mark-ups of the other (integrated) party to the controlled transaction in question, namely, of SCTC.399By way of illustration, it should be recalled that the 2010 version of the OECD Guidelines, to which the Commission repeatedly refers in the contested decision, set out the following in paragraphs 3.24 and 3.25 thereof:‘3.24A comparable uncontrolled transaction is a transaction between two independent parties that is comparable to the controlled transaction under examination. It can be either a comparable transaction between one party to the controlled transaction and an independent party (“internal comparable”) or between two independent enterprises, neither of which is a party to the controlled transaction (“external comparable”).3.25Comparisons of a taxpayer’s controlled transactions with other controlled transactions carried out by the same or another MNE group are irrelevant to the application of the arm’s length principle and therefore should not be used by a tax administration as the basis for a transfer pricing adjustment or by a taxpayer to support its transfer pricing policy.’400In that context, the Commission acknowledges that, in recitals 342 to 361 of the contested decision, the purpose of the analysis had not been to perform a rigorous transfer pricing analysis to establish the arm’s length price for green coffee at the time that the APA had been requested. Nevertheless, as has been set out in paragraph 154 above, it was for the Commission to justify the choice of the transfer pricing method it deemed appropriate in the case at hand in order to examine the level of transfer pricing for an intra-group transaction.401The Commission’s assertion that, for the purposes of its assessment, it had no need to identify comparable external transactions for green coffee beans since it had ‘understood’ that the [confidential]% average mark-up for the period from 2005 to 2010 would correspond to an arm’s length mark-up in 2008 does not suffice as justification in that regard. The purpose of the comparison of the controlled transaction with comparable external transactions, for the period after 2011, is to determine whether the controlled transaction was at arm’s length and the fact that another controlled transaction is presumed to be at arm’s length, for the period between 2005 and 2010, does not enable the examination of comparable external transactions for the period after 2011 to be avoided. The mere fact that, according to the Commission, the Starbucks correspondents did not provide any valid justification for the increase in the mark-up from 2011 onwards does not prove that the price of the green coffee beans paid by SMBV to SCTC for the fiscal years from 2011 onwards was set at a higher level than the prices that other comparable operators on the market would have had to pay.402Those considerations suffice to conclude that the second complaint set out in paragraph 374 above should also be upheld.403Consequently, as has been set out in paragraphs 391 and 402 above, it is necessary to uphold the complaint that the third line of reasoning concerns an element of SMBV’s costs that was outside the scope of the contested measure and that, moreover, the Commission has not demonstrated, by that line of reasoning, the existence of an advantage within the meaning of Article 107(1) TFEU in favour of SMBV.404Accordingly, it is necessary to uphold the plea alleging that, under its first to third lines of reasoning, the Commission has not demonstrated that the APA conferred an advantage on SMBV, within a meaning of Article 107(1) TFEU. E. Dispute of the subsidiary reasoning regarding the existence of a tax advantage in favour of SMBV (recitals 362 to 408 of the contested decision) 405The fourth plea in Case T‑760/15 and the third part of the second plea in Case T‑636/16 concern the Commission’s subsidiary reasoning on the existence of an advantage, consisting in demonstrating that, even assuming that the TNMM could be used for the purposes of determining SMBV’s taxable profits, the detailed rules for the application of that method to SMBV, as validated in the APA, would be erroneous.406That subsidiary reasoning is divided into two parts. In the first part, the Commission found that the choice of SMBV as the ‘tested party’ for the purposes of applying the TNMM, rather than Alki, was incorrect (fourth line of reasoning). In the second part, the Commission took the view that, even assuming that the tested party was indeed SMBV, the profit margin of SMBV obtained after applying the TNMM is not at arm’s length. First, the Commission considered that the choice of operating costs as profit level indicator was incorrect (fifth line of reasoning). Second, it found that, in any event, the adjustments applied to the profit margin in order to increase SMBV’s comparability with comparable undertakings were inappropriate (sixth line of reasoning).407The TNMM, to which the Commission refers in recitals 72 to 74 of the contested decision, is an indirect transfer pricing method. It consists in determining, from an appropriate base, the net profit realised by a taxpayer in a controlled transaction or in controlled transactions that are closely linked or continuous. To determine that appropriate base, it is necessary to choose a profit level indicator, such as costs, sales or assets. The net profit indicator obtained by the taxpayer in a controlled transaction must be determined by reference to the net profit indicator realised by the same taxpayer or a stand-alone undertaking in comparable uncontrolled transactions. The TNMM involves identifying a party to the transaction for which an indicator is tested.408The Kingdom of the Netherlands and Starbucks, which maintain that the TNMM was applied correctly, dispute all the criticisms made by the Commission as part of its subsidiary reasoning on the existence of an advantage.409First, the first part of the fourth plea in Case T‑760/15 and the first complaint of the third part of the second plea in Case T‑636/16 concern the identification of SMBV as the least complex entity.410Second, the second and third parts of the fourth plea in Case T‑760/15 and the second complaint of the third part of the second plea in Case T‑636/16 concern the identification of SMBV’s main functions and the determination of SMBV’s profits on the basis of operating costs.411Third, the fourth part of the fourth plea in Case T‑760/15 and the third complaint of the third part of the second plea in Case T‑636/16 concern the choice of adjustments intended to increase SMBV’s comparability with comparable undertakings. It will be appropriate to examine each of those complaints in turn.412Moreover, Starbucks argues that the Commission’s subsidiary reasoning on the existence of an advantage (recitals 362 to 408 of the contested decision) is vitiated by inadequate reasoning. It complains that the Commission criticised the way in which the TNMM was applied but did not prove that a better application of that method would have resulted in a higher profit for SMBV. 1. Identification of SMBV as the most complex entity (fourth line of reasoning) 413By the first part of the fourth plea in Case T‑760/15, the Kingdom of the Netherlands claims that the Commission’s argument that, since SMBV was the most complex entity, it could not be identified as the tested party for the purpose of applying the TNMM is erroneous. It maintains that the choice of SMBV for the application of the TNMM was correct. First, the mere fact that Alki was the holder of the roasting IP as well as the Starbucks brand for the EMEA region justified not designating it as the tested party for the purpose of applying the TNMM. Second, SMBV’s functions are less complex than Alki’s. None of the arguments relied on by the Commission in the contested decision relating to the functions and risks assumed by SMBV is such as to call that finding into question. In addition, the Kingdom of the Netherlands maintains that the Commission did not calculate the profit that ought to have been allocated to Alki if the TNMM had been applied to it and, consequently, that it did not demonstrate that the application of the TNMM it advocates would have led to a higher profit for SMBV.414Under the first complaint of the third part of the second plea in Case T‑636/16, Starbucks argues that SMBV was rightly classified in the transfer pricing report as being the less complex entity as compared to Alki. First, it argues that SMBV carries out routine, low-risk coffee roasting and conditioning activities as well as administrative and logistical support. Second, Starbucks considers that Alki is necessarily the more complex entity, since it exploits the roasting IP – which the Commission does not dispute – and it bears the risks in relation to SMBV’s activities, in accordance with the terms of the roasting agreement. Starbucks criticises the Commission for not having carried out a proper analysis of SMBV’s or Alki’s roles.415In addition, Starbucks claims that the contested decision is vitiated by inadequate reasoning. It argues that the Commission has not demonstrated that its misclassification of SMBV as the less complex entity conferred an advantage on it. It also argues that the contested decision does not state what SMBV’s taxable income would have been had Alki been classified as the less complex entity, or how it should have been applied to Alki.416The Commission disputes those arguments. It maintains that it demonstrated, to a requisite legal standard, in the contested decision, that the choice of SMBV as tested entity for the purposes of the application of the TNMM was incorrect and did not enable a reliable approximation of an arm’s length outcome to be reached.417First, the Commission argues that the circumstance that the transfer pricing report does not contain a complete functional analysis of SMBV and Alki is sufficient to consider that the method used in the APA does not enable an arm’s length outcome to be reached. Second, the Commission maintains that the OECD Guidelines do not support the position of the Kingdom of the Netherlands and Starbucks on the choice of tested party. Third, the Commission contends that the complexity of the tested party is relative to that of the other entity involved in the transaction to be tested and that, in that perspective, Alki is less complex than SMBV. Fourth, the Commission maintains that the argument that it failed to conduct a proper functional analysis of SMBV and Alki is inadmissible, in so far as it is a new argument put forward for the first time in the reply. It contends that, in any event, that argument is unfounded.418Fifth, regarding the inadequate reasoning raised by Starbucks, the Commission retorts that it concluded, in recital 377 of the contested decision, that, as the TNMM’s application was premissed on a flawed assumption, it did not enable a reliable approximation of a market-based outcome to be achieved and thus conferred an advantage on SMBV. It specifies that, had Alki been identified as the more complex entity, the analysis of its functions would have shown that it was not entitled to any remuneration, such that all the profits would have remained with SMBV.419In essence, the parties are in disagreement, first, on whether the transfer pricing report, as validated in the APA, correctly identified SMBV as being the tested entity for the purposes of the TNMM and, second, on whether the Commission stated sufficient reasons why it considered that the error in the identification of the tested party led to a reduction in SMBV’s taxable profit.420It is necessary to examine in the first place, irrespective of whether the tested entity was SMBV or Alki, whether the Commission has satisfied its obligation to state reasons.421In that regard, it is settled case-law that the statement of reasons required by Article 296(2) TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgments of 15 July 2004, Spain v Commission, C‑501/00, EU:C:2004:438, paragraph 73 and the case-law cited, and of 22 January 2013, Salzgitter v Commission, T‑308/00 RENV, EU:T:2013:30, paragraphs 112 and 113 and the case-law cited).422In the case at hand, the Commission set out, in Section 9.2.3.4 of the contested decision, that the choice of SMBV as tested entity for the purposes of the application of the TNMM conferred an advantage on SMBV.423First of all, it noted, in recital 364 of the contested decision, that the transfer pricing report should have included a comparison of each of the parties in the related transactions.424Next, the Commission considered, in recitals 365 to 368 of the contested decision, that the choice of SMBV as tested party was not in line with the requirements of the 1995 and 2010 versions of the OECD Guidelines, pursuant to which the tested party is the one whose functions are the least complex among the entities that are party to the controlled transaction.425Last, after an analysis of the functions of SMBV and Alki, the Commission concluded that the transfer pricing report had erroneously classified SMBV as having the less complex function compared to Alki (recitals 369 to 376 of the contested decision).426In recital 377 of the contested decision, the Commission concluded that, since the methodology for determining SMBV’s tax base in the transfer pricing report was premissed on the flawed assumption that SMBV should be the tested party for the application of the TNMM, that methodology does not result in a reliable approximation of a market-based outcome in line with the arm’s length principle. The Commission adds that, since the APA’s endorsement of that methodology leads to a lowering of SMBV’s tax liability under the general Netherlands corporate income tax system as compared to stand-alone companies whose taxable profit under that system is determined by the market, the APA should be considered to confer a selective advantage on SMBV for the purposes of Article 107(1) TFEU.427As has been set out in paragraph 201 above, the mere finding of non-observance of the methodological requirements for the determination of transfer pricing is not sufficient to establish that there is State aid within the meaning of Article 107 TFEU. The Commission must also demonstrate that the methodological errors that it identified do not enable an approximation of an arm’s length outcome to be reached and that they resulted in a reduction of the taxable profit compared to a profit that would have been calculated in accordance with the arm’s length principle.428Accordingly, in the examination of advantage within the meaning of Article 107 TFEU, in order to satisfy its obligation to state reasons as set out in paragraph 421 above, the Commission was obliged to set out the reasons why it had found that the error as to the choice of the tested entity had had the effect of reducing the level of SMBV’s taxable profit in such proportions that it did not correspond to a reliable approximation of an arm’s length outcome, thereby leading to a reduction in SMBV’s tax burden.429It must be stated, however, that Starbucks is right to claim that the contested decision contains no element allowing an understanding of the reasons why the Commission found that the error in the identification of the tested entity for the purposes of the application of the TNMM conferred an advantage on SMBV.430First, while the Commission indicated in recital 377 of the contested decision that the error regarding the tested entity had conferred an advantage on SMBV, that recital does not contain sufficient reasons. As is apparent from paragraph 422 above, the Commission merely asserted that the error regarding the determination of the tested entity led to a reduction in taxable profit. It provides no element to establish that the application of the TNMM to Alki and the allocation of residual profits to SMBV led to a higher taxable profit for SMBV.431Second, the other recitals of the contested decision contain no element enabling an understanding of the reasons for which the Commission found that SMBV’s taxable profit would have been higher had the TNMM been applied to Alki rather than to SMBV.432In the light of those considerations, it must be stated that the Commission did not set out the reasons why it considered that the choice of SMBV as tested party for the purposes of the application of the TNMM had led to a reduction in SMBV’s taxable profit. Therefore, the Commission did not demonstrate how that error conferred an advantage on SMBV, in breach of its obligation to state reasons, as follows from Article 296(2) TFEU.433In any event, it must also be stated that the Commission’s reasoning on the choice of tested entity is erroneous. Even assuming that the Commission could review the APA in the light of the 1995 version of the OECD Guidelines, as were available in April 2008, and that it could infer the existence of an advantage from the non-conformity with the requirements contained in those guidelines, those guidelines do not lay down a strict rule on the identification of the tested party.434More specifically, as the Kingdom of the Netherlands and Starbucks rightly argue, paragraph 3.43 of the 1995 OECD Guidelines indicates that the associated company, to which the TNMM is applied, must be the company for which reliable data on the most directly comparable transactions can be identified. It is next specified that that will often entail selecting the associated enterprise that is the least complex of the enterprises involved in the controlled transaction and that does not own valuable intangible property or unique assets. It follows that the guidelines do not necessarily oblige choosing the least complex entity, but merely advocate choosing the entity for which the most reliable data are available.435The Commission does not, however, prove that more reliable data were available to apply the TNMM to Alki. It is necessary inter alia to note that, first, the purpose of the APA is to determine the level of taxable profit of SMBV and not that of Alki and that, second, Alki was a third party to the procedure aimed at determining SMBV’s fiscal situation in the Netherlands.436Moreover, the existence of that recommendation in no way means that the choice of either entity as tested entity will necessarily have an impact on the transfer price obtained and that the choice of the more complex entity as tested entity does not enable an arm’s length outcome to be achieved.437If the choice of the least complex entity as tested party purports to limit errors, it is not at all inconceivable that applying the TNMM to the more complex entity might lead to an arm’s length outcome. In addition, in so far as the residual profits are allocated to the other party, the outcome should in theory be the same no matter which entity is tested.438Accordingly, it is necessary to uphold the first part of the fourth plea in Case T‑760/15 and the first complaint of the third part of the second plea in Case T‑636/16, without it being necessary to examine Starbucks’ argument seeking to dispute the admissibility of certain arguments put forward by the Commission. 2. Analysis of SMBV’s functions and determination of SMBV’s profit on the basis of operating costs (fifth line of reasoning) 439By the second and third parts of the fourth plea in Case T‑760/15, the Kingdom of the Netherlands argues that the Commission erroneously considered, first, that SMBV’s main functions were the resale of coffee-derived products and non-coffee products as opposed to the roasting of coffee and, second, that operating costs were not the appropriate profit level indicator.440First, the Kingdom of the Netherlands claims, in essence, that the Commission was wrong to consider that SMBV’s main function was resale rather than roasting. Second, the Kingdom of the Netherlands maintains that, since the Commission wrongly considered that SMBV’s main function was resale, its finding that the appropriate profit level indicator was sales is also incorrect. Third, the Kingdom of the Netherlands argues that the alternative comparability analysis proposed by the Commission in recitals 395 to 398 of the contested decision does not prove that the determination of SMBV’s profits on the basis of turnover would have resulted in a higher taxable profit for SMBV.441Under the second complaint of the third part of its second plea, Starbucks also criticises the Commission for wrongly considering that SMBV’s main function was the resale of non-coffee products rather than the roasting of coffee and thereby inferring that sales, and not operating costs, were the appropriate profit level indicator. It maintains in that regard that operating costs were the right profit level indicator for SMBV. In addition, Starbucks claims that the Commission has not demonstrated that the error in determining SMBV’s functions conferred an advantage on it, in so far as the Commission’s comparability analysis is vitiated by significant errors.442The Commission maintains that it correctly demonstrated that SMBV’s main function was resale and that, therefore, the relevant profit level indicator for SMBV was sales and not operating costs.443In the first place, the Commission contends that SMBV acted primarily as a reseller.444In the second place, the Commission disputes the arguments of the Kingdom of the Netherlands and of Starbucks purporting to demonstrate that it erroneously considered that sales were the relevant profit level indicator. It argues that, having established that SMBV’s main function was resale, it was right to criticise the Netherlands authorities for having validated the use of operating costs as profit level indicator and that it was entitled to regard sales as the relevant profit level indicator.445Furthermore, the Commission states that the profit from sales of products unrelated to coffee must be allocated to SMBV and cannot be paid, via a royalty, to Alki, which is not in a position allowing it to generate profits from the resale of non-coffee products.446In the third place, the Commission disputes the arguments of the Kingdom of the Netherlands and of Starbucks that its analysis of the points of comparison is vitiated by a number of errors.447In the fourth place, the Commission disputes the criticisms made by the Kingdom of the Netherlands and Starbucks according to which it did not demonstrate that a better application of the TNMM would have resulted in a higher taxable profit for SMBV.448First, the Commission argues that those criticisms are irrelevant to the assessment of the validity of the contested decision. It did not seem necessary to it to propose a recovery method for its subsidiary reasoning when it did not agree with using the TNMM in SMBV’s case.449Second, the Commission maintains that those remarks are unfounded, given that it carried out an analysis on the basis of SMBV’s reselling function and calculated a remuneration for SMBV on the basis of a sales margin. Recital 400 of the contested decision, in which it acknowledged that that calculation was not intended to calculate SMBV’s arm’s length remuneration, does not call into question the fact that its comparability analysis was carried out to demonstrate that a better application of the TNMM would have given rise to a higher taxable profit for SMBV.450In essence, the parties are in disagreement on whether the Commission demonstrated that the errors it identified in respect of the analysis of SMBV’s functions and the choice of profit level indicator conferred an advantage on SMBV.451As a preliminary point, it must be found that, although, in the application in Case T‑760/15, those issues are the subject of two separate complaints dealt with in different sections, the issues of the identification of SMBV’s functions and the choice of profit level indicator are indissociable. It follows from recitals 386 and 400 of the contested decision that those two questions come under the same evidence according to which the APA conferred an advantage on SMBV.452As a first step, the Commission found that SMBV’s main function was the resale of non-coffee products and not coffee roasting (recitals 380 to 386 of the contested decision).453As a second step, on the basis of that finding, the Commission asserted that sales were a more appropriate profit level indicator than operating costs (recitals 387 to 391 of the contested decision). The Commission considered, in essence, that, for the period from 2008 to 2014, the choice of operating costs as profit level indicator did not reflect the significant increase in SMBV’s sales and profit derived from its reselling activity. The Commission inferred that the profit derived from the sales was unduly shifted to Alki by means of the royalty, as Alki was not in a position to generate those profits.454The indissociable nature of those two steps set out in paragraphs 452 and 453 above is apparent, first, from the fact that the Commission draws no conclusion on the existence of a selective advantage from the finding of the single error in the identification of SMBV’s functions and, second, from the fact that the Commission inferred the error in the choice of profit level indicator for SMBV’s profits from the error in the identification of SMBV’s functions.455As a third step, the Commission also sought to ‘illustrate’ the impact of the error in the determination of SMBV’s main functions and choice of profit level indicator for SMBV’s profits. In order to do that, it conducted its own functional analysis departing from the premiss that SMBV’s main function was resale (recitals 392 to 400 of the contested decision).456For the sake of clarity, it must be noted that, by that reasoning, first, the Commission does not call into question the choice of the TNMM in the case at hand and, second, it does not claim that the profit level indicator used in the APA – operating costs – should have included factors other than costs, but maintains that a profit level indicator wholly separate from costs should have been used in the APA.457In order to examine whether the Commission has managed to demonstrate that the choice of profit level indicator had led to an outcome not in conformity with the arm’s length principle, it is thus appropriate to examine, first of all, the demonstration by the Commission in the first and second steps (recitals 380 to 391 of the contested decision), and then its comparability analysis conducted in the third step of its reasoning (recitals 392 to 400 of the contested decision). (a) Choice of profit level indicator 458In the contested decision, the Commission found that SMBV’s main function was the resale of non-coffee products. It based its reasoning primarily on the fact that, in 2007, only [confidential]% of SMBV’s income was derived from the sale of roasted coffee. By comparison, [confidential]% of SMBV’s income was derived from the sale of non-coffee products, which corresponded to what Starbucks identified as the provision of logistics and administrative services, and that a significant portion of SMBV’s employees were active in that activity.459On the basis of that finding, the Commission took the view that sales were the appropriate profit level indicator. In recital 387 of the contested decision, it first of all noted that, according to paragraph 2.87 of the 2010 version of the OECD Guidelines, sales or operating costs related to distribution might be an appropriate profit level indicator. Next, in recital 388 of the contested decision, the Commission found that, in the case at hand, sales were a more adequate indicator of SMBV’s profit generating reselling function, since its profits were generated and recorded through a margin on products distributed. In addition, according to the Commission, between 2008 and 2014, SMBV’s total sales practically tripled, while the ‘gross margin’ more than doubled over that same period and, by comparison, SMBV’s operating costs increased by only 6%. It thereby inferred that operating costs could not be regarded as an adequate profit level indicator. On the basis of that finding, in recital 389 of the contested decision, the Commission asserted that the payment of royalties to Alki, corresponding to residual profit, had the effect of shifting the profit SMBV derived from resale to Alki, when Alki, owing to its limited operating capacity, was not in a position to generate profits from that activity. It therefore concluded that the entirety of the profits should have been attributed to SMBV.460It must nevertheless be held that, even had the Commission not erred in finding that SMBV’s main function was the resale of non-coffee products, its analysis does not suffice to demonstrate that a profit level indicator based on operating costs could not lead to an arm’s length outcome.461First, it should be noted that, as the Commission itself found in recital 387 of the contested decision, it is apparent from paragraph 2.87 of the 2010 version of the OECD Guidelines that sales or operating costs related to distribution might be an appropriate profit level indicator. It follows that, even assuming the Commission’s premiss whereby SMBV’s main function was the resale of non-coffee products were correct, it is not inconceivable, in principle, that operating costs could constitute an appropriate profit level indicator.462To the extent that the Kingdom of the Netherlands disputes the Commission’s assessment that the resale of non-coffee products constituted an appropriate base for determining SMBV’s net profit, it should be recalled that it is apparent from the OECD Guidelines, on which the Commission based its analysis, and in particular from paragraphs 1.42, 3.2 and 3.26 of the 1995 version thereof, which correspond, in essence, to paragraphs 2.57, 2.58 and 3.9 of the 2010 version, that the TNMM consists in determining, from an appropriate base, the net profit realised by a taxpayer in a controlled transaction or in controlled transactions that are closely linked or continuous. It follows that the TNMM serves to determine the level of transfer pricing for a type of transaction or for closely linked or continuous transactions on the basis of an analysis of the main functions related to that transaction or to those transactions. However, its purpose is not to determine the level of profit for an undertaking’s overall activity, consisting in types of varied transactions, on the basis of the identification of a single main function, by disregarding the other functions performed by that undertaking. Such a practice would not be in line with paragraph 3.4 of the 1995 version of the OECD Guidelines, which corresponds to paragraph 2.7 of the 2010 version of those guidelines, which provides the following:‘In no case should transactional profit methods be used so as to result in over-taxing enterprises mainly because they make profits lower than the average, or in under-taxing enterprises that make higher than average profits. There is no justification under the arm’s length principle for imposing additional tax on enterprises that are less successful than average when the reason for their lack of success is attributable to commercial factors.’463In that context, first, it must be borne in mind that, in the contested decision, the Commission argued that SMBV’s functions relating to the resale of coffee-related products and those relating to roasting were not of negligible importance. Consequently, both of those functions – and not one or the other – had to be taken into account for the purposes of determining SMBV’s remuneration.464Second, in any event, in the contested decision, the Commission did not demonstrate that, in the circumstances of the case at hand, all of SMBV’s intra-group transactions that were relevant to the determination of its taxable profit were closely linked or continuous, such that a single pricing level could be determined for their remuneration.465That finding is sufficient to reject the position of the Commission according to which sales of non-coffee products were a profit level indicator that could be used for the entirety of SMBV’s activity.466Second, in any event, the arguments of the Commission seeking to call into question, in the case at hand, the use of operating costs as profit level indicator are unconvincing.467First, it must be stated that the Commission’s analysis, set out in recitals 388 and 389 of the contested decision, is based on data subsequent to the APA’s conclusion. As has been found in paragraph 251 above, however, in the circumstances of the case at hand, the Commission could not base its analysis on information that was not available or reasonably foreseeable in April 2008, when the APA was concluded. In the present case, the Commission has not demonstrated that the data relating to SMBV’s sales and its costs over the period from 2008 to 2014 were reasonably foreseeable, such that it was not entitled to base its analysis on those data.468Second, even supposing that the data relating to SMBV’s activity between 2008 and 2014 could be used by the Commission, it must be stated that the assertion that SMBV’s sales tripled while its operating costs increased by only 6% over the same period does not suffice to call into question the choice of operating costs as profit level indicator.469It must be recalled that, as has been found in paragraph 458 above, the Commission’s argument is based on the premiss that SMBV’s main function is the resale of non-coffee products. First, however, the figures relied on by the Commission concern, as it itself indicates, SMBV’s total sales and ‘gross margin’, which necessarily includes sales of coffee and coffee-related products. In addition, regarding ‘gross margin’, it is equal to gross profit, that is to say, sales turnover minus costs of goods sold, divided by sales (see footnote 70 of the contested decision) and thus does not constitute a rate indicating the profitability of sales before deduction of fixed costs. The Commission does not explain how those figures might be usable or relevant in the present case. Nor does it provide any evidence in support of those figures, or any indication as to their source.470Third, the profit level indicator proposed by the Commission, namely, total sales, does not appear to be appropriate for determining SMBV’s remuneration, either.471As has been set out in paragraph 458 above, the Commission based its line of argument on the premiss that [confidential]% of SMBV’s income was derived from the function of reselling non-coffee products. It thereby inferred that that function was SMBV’s main function.472However, it is important to note that that figure on which the Commission based its reasoning concerns SMBV’s income, and not profits. It must be stated that a high proportion of income does not necessarily translate into a high proportion of profits, such that that finding alone is not sufficient to prove that SMBV’s main function is the resale of non-coffee products.473Furthermore, the probative value of that figure is all the more debatable given that, as has been found in paragraphs 275 to 277 above, the Commission should have taken into account the fact that a portion of the income and profits was derived from the sale of roasted coffee by third parties.474In the light of the findings made in paragraphs 458 to 473 above, it must be held that the Commission has not demonstrated to a requisite legal standard that the choice of operating costs as profit level indicator did not allow a reliable approximation of a market-based outcome to be reached.475Since the Commission has not demonstrated that the choice of profit level indicator was incorrect, it could not take the view, in recital 389 of the contested decision, that a portion of SMBV’s profits, relating to its resale activity, was unduly shifted to Alki by means of the royalty. It has not demonstrated that SMBV’s profit would have been higher than the level of profit determined under the application of the APA. (b) Commission’s comparability analysis 476As has been found in paragraph 455 above, it must be stated that the Commission carried out, in recitals 392 to 399 of the contested decision, its own comparability analysis departing from the premiss that SMBV’s main function was the resale of non-coffee products.477The Commission sought to determine the arm’s length range for SMBV, by comparing it to undertakings whose main function was the wholesale of coffee-derived products and using sales as profit level indicator.478In order to do so, the Commission reproduced the analysis of the tax advisor with a corrected group of comparable companies, which it referred to as a ‘corrected peer group’, identified on the basis of SMBV’s resale functions, then calculated, from the corrected peer group, the range of return on sales that corresponded, in the light of its analysis, to an arm’s length outcome. The interquartile range obtained for the return on sales corresponded to a range of between 1.5% and 5.5%. The Commission then applied it to SMBV’s results obtained from 2007 to 2014. It found that, for each of the years covered by the APA, SMBV’s tax base calculated on the basis of the APA was lower than the quartile range of SMBV’s tax base, as followed from applying the method selected by the Commission.479The Commission’s approach consisting, first, in conducting its own analysis and, second, in comparing SMBV’s situation under the APA with the results of its analysis is such as to satisfy the Commission’s requirements regarding the demonstration of the existence of an advantage. The results of the Commission’s analysis demonstrate that SMBV’s taxable profit, as obtained under the APA for the years 2007 to 2014, is lower than SMBV’s taxable profit, as calculated for the years 2007 to 2014, applying the arm’s length range obtained by the Commission, from the corrected peer group.480However, in the first place, it must be held that, as the Kingdom of the Netherlands and Starbucks argue, the Commission’s comparability analysis is lacking in reliability.481First, it must be pointed out that, in recital 400 of the contested decision, the Commission clarified that the ‘purpose of [its analysis] ... [wa]s not to calculate an arm’s length remuneration for the functions performed by SMBV within the Starbucks group’. It thus ‘acknowledge[d] that the range presented above [wa]s not backed by a sufficient comparability analysis’. Such a clarification – made by the Commission itself – weakens the probative value of its analysis for demonstrating that the errors identified as regards SMBV’s functions and the choice of profit level indicator led to an advantage being conferred on SMBV.482Second, the impossibility, alleged by Starbucks, of replicating the corrected peer group search, done by the Commission, and of obtaining the same results as the Commission is such as to confirm the lack of reliability of the Commission’s comparability analysis. When Starbucks’ tax advisor attempted to replicate the Commission’s comparability analysis using the same criteria as the Commission, it obtained a list of 87 companies. Of the 12 companies identified by the Commission for the purpose of its comparability analysis, however, only 3 were present in the list of 87 companies.483It is true that the Commission tried to replicate, at the stage of the defence in Case T‑636/16, the corrected peer group search, in order to demonstrate the reliability of its comparability analysis. However, even supposing that using the ‘Orbis’ database instead of the ‘Amadeus’ database had made no difference, since the first database contains the same data as the second, it must be pointed out that five of the companies identified in recital 394 of the contested decision did not appear when it replicated its search of comparable companies. The Commission has moreover admitted this, in paragraph 179 of its defence in Case T‑636/16.484The arguments relied on by the Commission to justify that difference in results between its own comparability analysis and the replication of that analysis are therefore incapable of undermining the finding of lack of credibility and reliability of its comparability analysis. The Commission maintains that that difference in results is explained by the fact that those five companies were reclassified in the database subsequent to its comparability analysis.485First, it is apparent from Starbucks’ reply – without being contradicted on that point by Commission in the rejoinder in Case T‑636/16 – that it is possible to consult the historical versions of the ‘Orbis’ and ‘Amadeus’ databases, such that the change in the companies’ situation should not have any impact on the replicability of the Commission’s comparability analysis. Therefore, since those historical versions of the ‘Amadeus’ database cannot be updated retroactively, the results could not have been different from those obtained in the Commission’s comparability analysis.486Second, Starbucks claims that the Commission used, both for its own comparability analysis and for the replication of the comparability analysis, versions of the ‘Amadeus’ and ‘Orbis’ databases dating from 2015 and 2017, respectively, which the Commission does not call into question. It follows that the Commission’s analysis is based on versions of the databases subsequent to 2008. To the extent that, as the Commission itself maintains, the classification of companies can vary depending on the version of the database, the results of the comparability analysis could be distorted by using a more recent version. Furthermore, as is apparent from paragraphs 243 to 251 above, only information that was available on the day of the adoption of the APA could be taken into account by the Commission.487Therefore, the circumstances, on the one hand, that the Commission was not in a position to replicate its comparability analysis and, on the other hand, that those five companies represented a significant portion of the corrected peer group, used for the comparability analysis, as well as the resulting impossibility for the Kingdom of the Netherlands and Starbucks or for this Court to know the precise method used by the Commission in its reasoning and to reproduce that analysis in order to verify whether it correctly identified the comparable companies are such as to call into question its reliability and credibility.488In the second place, in any event, it must be held that, as the Kingdom of the Netherlands and Starbucks argue, the Commission’s analysis is vitiated by a number of errors.489First, it must be stated that the corrected peer group used by the Commission for its comparability analysis is inconsistent with the findings it made as to SMBV’s functions and is not such as to prove that the errors it identified led to a reduction in SMBV’s taxable profit.490It is important to point out, first, that the Commission found, in the contested decision, that SMBV’s main function was the resale of non-coffee products. In recital 382 of the contested decision, the Commission clearly stated that SMBV’s main function was resale, [confidential]% of the company’s income in 2007 having derived from that activity. In recital 384 of that decision, the Commission clarified its position according to which the majority of SMBV’s activities related to the sale or resale of non-coffee products, such as cups and paper napkins. That finding is, moreover, supported by the Commission’s submissions, in which the Commission asserts that SMBV’s main function is reselling non-coffee products and that it is the main reason why it criticised the Starbucks group’s tax advisor for having chosen operating costs as profit level indicator.491Second, the Commission set out in recitals 393 and 394 of the contested decision that, as SMBV’s functions had been incorrectly identified in the transfer pricing report, the peer group used to apply the TNMM, identified by the NACE (Nomenclature générale des activités économiques dans les Communautés européennes) code ‘processing of tea and coffee’ was inappropriate. The Commission then reproduced the analysis carried out in the transfer pricing report, using the corrected peer group, identified by the NACE code ‘wholesale of coffee, tea, cocoa and spices’. It then excluded companies mainly distributing products other than tea and coffee from the corrected peer group. The result was a corrected peer group made up of 12 companies, each engaged in roasting, as the Commission found in recital 394 of the contested decision.492It must be pointed out that the companies making up the corrected peer group have different functions than SMBV’s main function, as identified by the Commission, namely, the resale of non-coffee products. This means that those companies are not in a comparable situation to SMBV’s. Those companies therefore cannot be regarded as relevant for calculating the profit SMBV would generate under market conditions. Consequently, the alternative comparability analysis consisting in replicating the tax advisor’s analysis by using a corrected peer group engaged in the sale of coffee and roasting is necessarily incorrect.493Second, it must be held, as Starbucks argues, that, even supposing that the corrected peer group could be used by the Commission, the results of the comparability analysis carried out by the Commission are necessarily distorted, since it compared incomparable data, comparing the operating profits of comparable companies with SMBV’s taxable profit.494In that regard, first, it must be noted that it is settled between the parties that the interquartile range calculated by the Commission for the period from 2005 to 2007, corresponding to a range of between 1.5% and 5.5% of sales, was calculated on the basis of the operating profits of the companies comprising the corrected peer group. That finding is moreover supported by Table 12 of the contested decision. Second, it is settled that it is SMBV’s taxable profit, determined under the APA, and not its operating profit that the Commission compared with the operating profit of the comparable companies from the corrected peer group. That is moreover apparent from Table 13 of the contested decision.495The Commission does not dispute, however, that operating profits are not comparable to pre-tax profits, merely asserting that it replicated the analysis of the Starbucks group’s tax advisor. Furthermore, it must be stated that operating profits and taxable profits are two separate notions which are reflected, in principle, in the recording of different amounts in the corresponding accounting tables, as is apparent from recital 82 of the contested decision and from Table 1 of that decision.496The circumstance that the Commission asserted, in recital 397 of the contested decision, that it compared SMBV’s taxable profit calculated on the basis of the APA with the taxable profit calculated on the basis of the interquartile range determined by the Commission cannot call into question the finding made in paragraph 493 above. Given that the interquartile range was calculated on the basis of the operating profits of comparable undertakings, the result obtained in respect of SMBV when applying that range corresponds not to its taxable profit, but to its operating profit.497It follows that the comparison of SMBV’s taxable profit with the interquartile range obtained from the operating profit of the companies of the corrected peer group is necessarily distorted.498Moreover, for the year 2007-2008, the 1.2% figure is fairly close to the lower part of the range calculated by the Commission. In view of the numerous approximations in the Commission’s analysis, that result does not demonstrate a situation clearly contrary to market conditions. It should be borne in mind that, where the Commission checks whether the taxable profit of an integrated undertaking in application of a tax measure corresponds to a reliable approximation of a taxable profit realised under market conditions, it may determine the existence of an advantage within the meaning of Article 107(1) TFEU only provided that the discrepancy between the two factors of comparison goes beyond inaccuracies inherent to the method used to obtain that approximation.499Furthermore, even assuming that the error consisting in comparing SMBV’s taxable profit with the operating profit of comparable companies was indeed contained in Starbucks’ transfer pricing report – which Starbucks disputes – the existence of that error in the transfer pricing report does not prevent the Court from verifying that the contested decision is not vitiated by error. In addition, if the Commission deemed problematic the fact that operating profits were compared with taxable profits, it ought to have examined that matter in the contested decision.500It is therefore necessary to consider, on the basis of the findings made in paragraphs 480 to 499 above, that the comparability analysis conducted by the Commission in recitals 392 to 399 of the contested decision, first, lacks reliability and, second, is vitiated by a number of errors.501Consequently, in the light of the considerations set out in paragraphs 457 to 500 above, it is necessary to uphold the complaints of the Kingdom of the Netherlands and of Starbucks according to which the Commission has not demonstrated that the APA’s validation of SMBV’s functions and of the choice of profit level indicator, proposed in the transfer pricing report, conferred an advantage on SMBV. Accordingly, it is no longer necessary to examine whether the Commission was correct to find that the identification of SMBV’s functions and the choice of profit level indicator used in the APA were erroneous. It is therefore not necessary to examine the argument of Starbucks disputing the admissibility of certain arguments put forward by the Commission. 3. Choice of adjustments (sixth line of reasoning) 502Under the fourth part of the fourth plea in Case T‑760/15, and the third complaint of the third part of the second plea in Case T‑636/16, the Kingdom of the Netherlands and Starbucks claim, in essence, that the Commission has not demonstrated that the adjustments proposed in the transfer pricing report to increase the comparability between SMBV and the comparable companies were such as to confer an advantage on SMBV.503The Kingdom of the Netherlands argues that the Commission erroneously found that two of the adjustments proposed in the transfer pricing report for increasing the comparability between SMBV and the 20 comparable unrelated companies did not enable an approximation of an arm’s length outcome to be reached. First, the exclusion, from the relevant cost base, of the costs of products related and unrelated to coffee is justified inter alia by the fact that SMBV acts as service provider, does not perform any purchasing function and does not bear stock-related risks, unlike the comparable companies. Second, the mark-up adjustment is justified by the fact that the mark-up before adjustment concerns operating profits, whereas the objective of the APA was to determine taxable profits. That adjustment had the effect of increasing the mark-up.504First, Starbucks adds that, in the contested decision, the Commission did not call into question the adjustments applied to the cost base, chosen as profit level indicator. Therefore, the argument of the Commission set forth in paragraph 183 of the defence in Case T‑636/16, according to which the cost-base adjustment is inappropriate due to the absence of risk transfer from SMBV to Alki, is inadmissible since it does not appear in the contested decision. Second, it considers that the figures presented by the Commission in paragraphs 184 and 185 of the defence in Case T‑636/16, purporting to show that SMBV’s taxable income would have been higher if a mark-up had been applied on total costs, are also inadmissible in so far as they do not appear in the contested decision.505So far as concerns the adjustments at issue, Starbucks alleges inadequate reasoning. The Commission merely asserts that the adjustments were not appropriate, without demonstrating how SMBV’s taxable profit would have been higher if more appropriate adjustments had been made.506The Commission disputes those arguments. It maintains that the two adjustments proposed in the transfer pricing report are inadequate and lead to a reduction in SMBV’s taxable profit. It argues that the Kingdom of the Netherlands and Starbucks have not demonstrated that it committed an error of assessment.507First, regarding the adjustments applied to the cost base, the Commission argues that it did indeed challenge that point in recitals 319 to 332 of the contested decision, asserting that Alki could not bear any of SMBV’s entrepreneurial risk. The Commission refers also to recitals 59 and 159 of the contested decision, which explain that the cost-base adjustment is justified, according to the transfer pricing report, by SMBV’s status as toll manufacturer, and not assuming any risk. In addition, the Commission disputes the arguments of the Kingdom of the Netherlands and of Starbucks according to which SMBV’s profit could be calculated on the basis of operating costs and not total costs.508Second, the Commission notes that, although the adjusted mark-up led to a higher percentage, that percentage was applied to a much narrower cost base. It adds that, given that the cost of green coffee beans, the remuneration paid to third parties and non-coffee products should have been included in the cost base, there was no reason to apply the ‘working capital adjustment’. Even assuming that the Starbucks group’s tax advisor, having prepared the transfer pricing report, committed no error in excluding those different costs from the cost base, the ‘working capital adjustment’ would not have been appropriate, either. In addition, the Commission argues that it adequately explained, in recitals 402 to 406 of the contested decision, how the ‘working capital adjustment’, together with the cost-base adjustment, lowered SMBV’s annual corporate income tax liability.509First of all, it must be pointed out that, in recitals 407 and 408 of the contested decision, the Commission considered that, even if SMBV’s functions and the profit level indicator had been correctly identified, two adjustments proposed in the transfer pricing report meant that the methodology proposed in the transfer pricing report did not result in an arm’s length outcome.510Based on the finding that the two adjustments were erroneous, the Commission concluded that, by accepting that methodology, which led to a lowering of SMBV’s tax liability under the general Netherlands corporate income tax system as compared to stand-alone companies whose taxable profit under that system is determined in market conditions, the APA conferred a selective advantage on SMBV for the purposes of Article 107(1) TFEU.511It should be noted that it is thus apparent from recitals 407 and 408 of the contested decision that the Commission’s approach, consisting in comparing SMBV’s taxable profit under the APA with that of a stand-alone company whose profit under the general Netherlands corporate income tax system is determined in market conditions, appears, at first sight, to satisfy the requirements incumbent on the Commission regarding the existence of an advantage.512However, it should be recalled that it follows from the considerations set out in paragraphs 151 and 152 above that, in order to determine whether the APA conferred an advantage on SMBV in the case at hand, it is for the Commission to show that the transfer pricing method endorsed in the APA led to a reduction of SMBV’s tax burden and, more specifically, to show that the level of SMBV’s profits, calculated under the transfer pricing method, is reduced to such an extent that it cannot be regarded as being a reliable approximation of a market-based outcome. As has been found in paragraph 498 above, where the Commission checks whether the taxable profit of an integrated undertaking in application of a tax measure corresponds to a reliable approximation of a taxable profit realised under market conditions, it may determine the existence of an advantage within the meaning of Article 107(1) TFEU only provided that the discrepancy between the two factors of comparison goes beyond inaccuracies inherent to the method used to obtain that approximation.513It is therefore appropriate to examine whether the Commission has sufficiently shown that the two adjustments made by the Starbucks group’s tax advisor conferred an advantage on SMBV. (b) Cost-base adjustment 514The first adjustment proposed in the transfer pricing report concerns the cost base (the ‘cost-base adjustment’). It consists in excluding certain costs from the cost base used as profit level indicator for the purposes of the application of the TNMM. However, it must be stated that it is apparent from recitals 406 and 407 of the contested decision that the criticisms identified by the Commission concern only the exclusion of the costs of unaffiliated manufacturing company 1 from the cost base used for the application of the TNMM. In essence, the Commission found that there was no explanation why the costs of unaffiliated manufacturing company 1 were excluded when they had been taken into account in the preceding APA.515In the first place, it should be recalled that, contrary to what the Commission argues, the conclusion in recital 407 of the contested decision, according to which the adjustments proposed in the transfer pricing report and validated in the APA confer an advantage on SMBV, is explicitly limited to excluding the costs of unaffiliated manufacturing company 1 from SMBV’s cost base. It is not apparent from the text of the contested decision that the Commission based the finding of advantage on the exclusion of other costs from the cost base used as SMBV’s profit level indicator.516The circumstance, relied on by the Commission, that that institution called into question, in recitals 319 to 332 of the contested decision, the fact that SMBV’s entrepreneurial risks were transferred to Alki does not permit the conclusion that it considered, for those reasons, that certain costs had been erroneously excluded from the cost base used as profit level indicator. That finding is supported by the circumstance that the issue of the adjustments is presented by the Commission itself as being a line of reasoning (see recital 407 of the contested decision) subsidiary to the line of reasoning examined in recitals 319 to 332 of the contested decision.517Moreover, contrary to what the Commission essentially maintains, it is not apparent from recitals 59 and 159 of the contested decision that that decision based the finding that the APA had conferred an advantage on SMBV on the cost-based adjustments. So far as concerns recital 59 of the contested decision, it must be stated that, although it does refer to the said adjustments, it merely presents the content of the transfer pricing report. As regards recital 159 of the contested decision, that recital – which is in the section introducing the administrative procedure – merely indicates that the Commission had expressed doubts as to the adjustments proposed in the transfer pricing report, without it being possible to infer the Commission’s position in the context of the contested decision.518On the basis of the findings made in paragraphs 515 to 517 above, it must therefore be held that the Commission did not contend in the contested decision – let alone prove – that the cost-based adjustment, apart from the exclusion of the costs of unaffiliated manufacturing company 1, had conferred an advantage on SMBV. Accordingly, it is necessary to reject the arguments of the Commission, presented in the defence, according to which the use of operating costs instead of total costs (including the cost of coffee beans, the fees paid to third parties and the costs of non-coffee products) led to a reduction in SMBV’s taxable base.519In the second place, regarding the exclusion of the costs of unaffiliated manufacturing company 1, the Commission found, in recital 406 of the contested decision, that the transfer pricing report had accepted a considerable reduction in the cost base, by excluding those costs.520The Commission, however, is limited to asserting, in recital 406 of the contested decision, without any further clarification, that those costs had been taken into account in the previous arrangement for determining SMBV’s tax base, used prior to the APA’s conclusion, and that the exclusion of those costs had not been reasoned. It is not clear from the text of the contested decision to what the Commission is referring when it invokes an absence of reasoning of the exclusion of costs, and in particular whether it considers that such explanations should have been contained in the APA or provided during the administrative procedure.521In that regard, first, it must be held that the finding as to the insufficient justification of the adjustment, whether it be by the Starbucks correspondents or by the Netherlands authorities, does not suffice to demonstrate, as such, that that adjustment was erroneous, or that it led to a reduction in SMBV’s tax burden.522Second, in any event, it must be held that it is apparent from recital 407 of the contested decision that the Commission’s examination of the erroneous nature of the exclusion of the costs of unaffiliated manufacturing company 1 is a subsidiary analysis that would be at issue if SMBV’s main function was indeed the roasting of coffee.523First, it is apparent from the Commission’s defence in Case T‑636/16 that unaffiliated manufacturing company 1 mainly manufactured products such as flavoured coffee, powder for a coffee-based product protected by a registered trademark or soluble coffee and that it roasted green coffee beans only in ‘limited volumes’. The Commission did not, however, explain how the costs of unaffiliated manufacturing company 1 were relevant to calculating SMBV’s taxable profit, as roaster.524Second, it must be stated that the arguments put forward by the Commission in its submissions regarding the exclusion of the costs of unaffiliated manufacturing company 1 are based on the premiss that SMBV’s main activity is resale. Those different arguments must therefore be rejected.525Third, it is apparent from the transfer pricing report that the tax advisor excluded from the cost base, used for the purposes of applying the TNMM, the costs relating to activities for which SMBV does not provide added value. The Kingdom of the Netherlands and Starbucks moreover contend, in their respective submissions, that the exclusion of the costs of unaffiliated manufacturing company 1 is justified by the fact that SMBV does not provide any added value. They maintain that the costs relating to the transaction between SMBV and unaffiliated manufacturing company 1 merely pass through SMBV’s accounts, but cannot be attributed to SMBV’s activity. The purchase of the products of unaffiliated manufacturing company 1 thus constitutes a neutral transaction for the determination of that company’s taxable profit.526In that regard, it must be stated that it is not ruled out that the income derived from the products provided by unaffiliated manufacturing company 1 are equivalent to the costs of unaffiliated manufacturing company 1, such that SMBV does not generate any profit from that company’s products. The Commission, however, has not demonstrated that SMBV added any value to the products of unaffiliated manufacturing company 1 and that it did indeed generate profit from the exploitation of those products, such that the costs of unaffiliated manufacturing company 1 should necessarily have been taken into account for the purposes of the application of the TNMM.527Nor does the Commission demonstrate that the differences cited in the transfer pricing report between the functions of SMBV and of the 20 companies on the basis of which the comparability analysis was conducted do not justify the application of the adjustment involving the exclusion of the costs of unaffiliated manufacturing company 1.528To the extent that the Commission does not provide evidence showing that SMBV generated profit from the transaction with unaffiliated manufacturing company 1 or that the mark-up should apply to a cost base including the costs of unaffiliated manufacturing company 1, it must be held that it was not entitled to conclude that the exclusion of those costs was erroneous and led to a reduction in SMBV’s profit.529In the third place, it must be stated that, as Starbucks argues, the figures contained in the table produced in paragraph 184 of the Commission’s defence in Case T‑636/16, which are calculations based on the figures contained in Table 3 of the contested decision, cannot be taken to support the Commission’s position. First, those figures relate to SMBV’s total costs (operating expenses and COGS) and not only to the operating costs to which the costs of unaffiliated manufacturing company 1 would have been added. Second, those figures demonstrate only that the level of profits would have been higher if the cost base had been broader and do not support the proposition that SMBV would have made a profit from exploiting the products of unaffiliated manufacturing company 1.530In the fourth place, it must be noted that the exclusion of the costs of unaffiliated manufacturing company 1 was combined with the adjustment – increasing – of the rate of return. It therefore cannot necessarily be concluded that the adjustments applied in the APA, taken as a whole, necessarily led to a reduction in SMBV’s taxable base. The Commission, however, has not quantified the costs of unaffiliated manufacturing company 1 or, at least, the proportion of SMBV’s costs they represent. It is thus not apparent from the contested decision that the costs of unaffiliated manufacturing company 1 represent such a proportion of SMBV’s costs that merely excluding them would have an impact on SMBV’s profits to such an extent that their level would no longer be representative of a profit resulting from an arm’s length situation.531In the light of those observations, it must be held that the Commission has not managed to demonstrate that the exclusion of the costs of unaffiliated manufacturing company 1 conferred an advantage on SMBV, without it being necessary to examine whether the Commission vitiated its decision by a failure to state reasons. (c) ‘Working capital adjustment’ (1) Scope of the adjustment at issue 532With regard to the scope of the second adjustment, it must be stated that, in recital 407 of the contested decision, the Commission maintained that the application of the ‘working capital adjustment’ meant that the method proposed in the transfer pricing report did not result in a reliable approximation of a market-based outcome in line with the arm’s length principle. In that regard, it must be noted that neither the transfer pricing report nor the APA uses the expression ‘working capital adjustment’.533First of all, in the contested decision, the Commission maintained that, in the transfer pricing report, the Starbucks group’s tax advisor proposed a conversion mark-up adjustment, presented by the Netherlands authorities as a ‘working capital adjustment’ (recital 401 of the contested decision). It follows from that finding that the expression ‘working capital adjustment’ as used in the contested decision must be understood in the sense used by the Netherlands authorities during the administrative procedure.534Next, it is apparent from recital 403 of the contested decision that the Commission had expressed doubts on the ‘working capital adjustment’ in recitals 101 to 113 of the opening decision. First, it should be noted that, in recitals 101 and 102 of the opening decision, the Commission discussed the ‘raw material cost mark-up’, while the adjustment relating to the exclusion of the costs of green coffee from the cost base was discussed in recitals 99 and 100 of the opening decision. The contested decision therefore does not refer, in recital 403 thereof, to the latter adjustment. That finding is moreover supported by point (iii) of recital 269 and by footnote 130 of the contested decision.535It is true that recitals 103 to 113 of the opening decision also concern, in part, the adjustment relating to the exclusion of the costs of green coffee from the cost base. However, according to recital 107 of the opening decision, the arguments of the Netherlands regarding the ‘working capital adjustment’ are set out in recital 59 of the same decision. According to recital 59 of the opening decision, the Netherlands authorities stated that ‘the adjustment in this case [was] a combination of two comparability adjustments: it combine[d] a working capital adjustment for raw materials inventory on the return of the comparable companies with an adjustment for the raw material costs in the cost base of the comparable companies’. It is apparent from the description of the arguments of the Kingdom of the Netherlands during the administrative procedure that, for it, the expression ‘working capital adjustment’ concerned only the ‘raw materials cost adjustment’, identified in the transfer pricing report.536Last, it must be pointed out that, in recital 407 of the contested decision, the Commission itself notes a difference between the ‘working capital adjustment’ and the exclusion of the costs of unaffiliated manufacturing company 1 from SMBV’s tax base.537It must therefore be concluded that the expression ‘working capital adjustment’, used in recital 407 of the contested decision, makes reference to the ‘raw materials cost adjustment’, identified in the transfer pricing report.538In any event, even supposing that the expression ‘working capital adjustment’, used in recital 407 of the contested decision, were also be understood as making reference to the raw materials cost adjustment in SMBV’s cost base, it must be held that recitals 401 to 406 of the contested decision contain no argument on the cost base other than the one involving the exclusion of the costs of unaffiliated manufacturing company 1. It has already been found, in paragraphs 514 to 531 above, however, that the Commission has not managed to demonstrate that the exclusion of those costs conferred on advantage on SMBV. In recitals 404 and 405 of the contested decision, the Commission simply rejects the arguments of the Kingdom of the Netherlands on the relevance of a comparability study on the basis of total costs and a scientific article. Moreover, recitals 401 to 403 of the contested decision contain no reference to SMBV’s cost base. (2) Complaint alleging the absence of a reduction in SMBV’s tax burden 539In the first place, it should be recalled that, in so far as, first, the ‘working capital adjustment’ corresponds to the raw materials cost adjustment in the cost base, identified in the transfer pricing report (see paragraph 537 above) and, second, the argument regarding the exclusion of the costs of unaffiliated manufacturing company 1 has been rejected (see paragraphs 514 to 531 above), that adjustment translated into an increase in the cost base mark-up from [confidential]% to [confidential]%. The use of a higher mark-up for the purposes of determining SMBV’s taxable profit could not lead to a reduction in SMBV’s taxable profit. That adjustment alone, taken in isolation, is thus not such as to confer an advantage on SMBV.540It follows that the Commission has not managed to show that the ‘working capital adjustment’ had the effect of lowering the level of SMBV’s profits or, consequently, that that adjustment conferred an advantage on that company.541In the second place, it should be stated that the Commission’s reasoning regarding the ‘working capital adjustment’, set out in recitals 401 to 405 of the contested decision, is not capable of showing that the ‘working capital adjustment’ had the effect of lowering the level of SMBV’s profits and that it had, consequently, conferred an advantage on that company.542First of all, in so far as the Commission based its reasoning on the finding that the method used to determine the ‘working capital adjustment’ did not take into account the amount of the working capital of the comparable undertakings, or that of SMBV, it is sufficient to state that the Commission does not explain how that fact could demonstrate a lowering of the level SMBV’s profits.543Next, although the Commission found that there was no constant relation between the COGS used in the adjustment and working capital needs, it should be noted that the Commission has not explained how that fact could concretely demonstrate a lowering of the level of SMBV’s profits.544In addition, by its assertions that the ‘working capital adjustment’ made by the Starbucks group’s tax advisor is not suited to the declared purpose of adjusting for differences in working capital use, the Commission is limited to general and approximate considerations, such as its contention that that adjustment is ‘ill-fitted’ or that ‘a company with a high amount of raw material cost might have low working capital needs if it processes its stock efficiently’.545Last, regarding the finding, in recitals 402 to 405 of the contested decision, that there is no justification for the ‘working capital’ adjustment in the set of facts presented in the transfer pricing report or in any of the arguments raised by the Kingdom of the Netherlands in the context of the administrative procedure, it must be held that the mere finding of the absence of such justification similarly does not demonstrate that the ‘working capital adjustment’ led to a reduction in SMBV’s taxable profit.546It follows that, contrary to what the Commission concluded in recital 407 of the contested decision, it has not proved that the ‘working capital adjustment’ led to a reduction in SMBV’s taxable profit.547That finding cannot be called into question by the Commission’s arguments. It must be stated that it is apparent from recital 407 of the contested decision that the Commission’s examination of the ‘working capital adjustment’ is a subsidiary analysis that would be at issue if SMBV’s main function was indeed the roasting of coffee. The arguments put forward by the Commission, however, in its submissions, regarding the ‘working capital’ adjustment, are based on the premiss that SMBV’s main activity is resale. Those various arguments must therefore be rejected.548In the light of the considerations set out in paragraphs 502 to 547 above, it is necessary to uphold the complaints of the Kingdom of the Netherlands and of Starbucks according to which the Commission has not demonstrated that the APA’s validation of the working capital adjustment and that relating to the exclusion of the costs of unaffiliated manufacturing company 1 conferred an advantage on SMBV.549Accordingly, it is necessary to uphold the plea alleging that, under its fourth to sixth lines of reasoning, the Commission has not demonstrated that the APA conferred an advantage on SMBV, within the meaning of Article 107(1) TFEU. F. Whether the APA derogated from Article 8b of the CIT and from the transfer pricing decree (reasoning in respect of the limited reference system, recitals 409 to 412 of the contested decision). 550The Kingdom of the Netherlands claims that it puts forward its pleas regarding the absence of an advantage in the case at hand against both the Commission’s main position – the first six lines of reasoning – and its reasoning in respect of the limited reference system, in which the Commission concluded that there was an advantage, in the present case, under Article 8b of the CIT and under the transfer pricing decree. Starbucks, for its part, argues that the Commission should have examined the APA in the light of Article 8b(1) of the CIT and the transfer pricing decree, which it did not do.551The Commission maintains that it assessed, in recitals 409 to 412 of the contested decision, the APA against Article 8b(1) of the CIT and that it found, following that assessment, that the APA conferred a selective advantage on SMBV.552It must be observed in that regard that, as a further subsidiary point, in Section 9.2.4 of the contested decision, entitled ‘Subsidiary line of reasoning: Selective advantage due to a derogation from the [transfer pricing] Decree’ (recitals 409 to 412 of the contested decision), the Commission found that the APA conferred an advantage on SMBV under an assessment based on the limited reference system of Article 8b(1) of the CIT and the transfer pricing decree (recital 412 of the contested decision).553In recital 410 of the contested decision, the Commission stated that, ‘in a subsidiary line of reasoning, ... the SMBV APA also grant[ed] SMBV a selective advantage in the context of the more limited reference system composed of group companies applying transfer pricing to which Article 8b(1) of the CIT and the [transfer pricing] Decree appl[ied]’. In recital 411 of the contested decision, the Commission recalled that Article 8b(1) of the CIT and the transfer pricing decree had established ‘the “arm’s length principle” under Dutch tax law, according to which transactions between intra-group companies should be remunerated as if they were agreed to by independent companies negotiating under comparable circumstances at arm’s length’. In the same recital, the Commission noted that the preamble to the transfer pricing decree explained that the OECD Guidelines applied directly to the Netherlands. In recital 412 of the contested decision, the Commission referred to the reasoning set out in recitals 268 to 274 of the contested decision, which summarise the first six lines of reasoning, to conclude that the APA also gave rise to a selective advantage under the more limited reference system of Article 8b(1) of the CIT and the transfer pricing decree.554It is clear from those findings that the Commission concluded that the APA at issue conferred a selective advantage on SMBV, since it resulted in a lowering of the tax liability as compared to the situation where the arm’s length principle laid down in Article 8b CIT and in the transfer pricing decree was properly applied.555It must be noted that the Commission based that conclusion on its examination of the APA conducted as part of its primary analysis. It thus asserted that it had already demonstrated, in Section 9.2.3.1 of the contested decision, that the APA did not enable a reliable approximation of an arm’s length outcome to be reached.556It is true that the reasoning set out in recitals 409 to 412 of the contested decision concerns, first and foremost, an argument of the Kingdom of the Netherlands and of Starbucks on the choice of reference system, forming part of the analysis of the selectivity of the measure at issue.557However, it must be pointed out that the Kingdom of the Netherlands and the Commission are of the view that recital 412 of the contested decision must be interpreted as meaning that the latter concluded, on the basis of an examination under the relevant national law – Article 8b(1) of the CIT and the transfer pricing decree – that the APA conferred an advantage on SMBV, the analysis conducted by the Commission in the first six lines of reasoning applying mutatis mutandis. That finding is moreover supported by the wording of recital 416 of the contested decision.558Without it being necessary, in the case at hand, to take a position on the exact nature and scope of the reasoning in respect of the Commission’s limited reference system, set out in recitals 409 to 412 of the contested decision, it is sufficient to state that, assuming that, by that reasoning, the Commission has examined the errors it had identified in the context of the first six lines of reasoning under Article 8b of the CIT and the transfer pricing decree, which fall under the arm’s length principle under Netherlands law, the Commission has not demonstrated, for the same reasons as those set out in paragraphs 173 to 549 above, which apply mutatis mutandis to such an examination, that the APA had conferred an advantage on SMBV, within the meaning of Article 107(1) TFEU. G. Conclusion 559First, it follows from paragraphs 404 and 549 above that the six lines of reasoning of the contested decision did not suffice to demonstrate that the APA had conferred an advantage on SMBV, within the meaning of Article 107(1) TFEU.560Second, it follows from paragraphs 550 to 558 above that the Commission has not demonstrated that the APA derogated from Article 8b of the CIT and from the transfer pricing decree and that it had thus conferred an advantage on SMBV, within the meaning of Article 107(1) TFEU.561It therefore follows from all the foregoing that the Commission has not managed, by any of the lines of reasoning set out in the contested decision, to demonstrate to a requisite legal standard the existence of an advantage within the meaning of Article 107(1) TFEU. Accordingly, it is necessary to annul the contested decision in its entirety, without it being necessary to examine the other pleas raised by the Kingdom of the Netherlands and by Starbucks. IV. Costs 562Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Kingdom of the Netherlands and of Starbucks, in accordance of the forms of order sought by the applicants.563In accordance with Article 138(1) of the Rules of Procedure, Ireland shall bear its own costs.On those grounds,hereby: 1. Joins Cases T‑760/15 and T‑636/16 for the purposes of the judgment; 2. Annuls Commission Decision (EU) 2017/502 of 21 October 2015 on State aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks; 3. Orders the European Commission to bear its own costs and to pay those incurred by the Kingdom of the Netherlands, Starbucks Corp. and Starbucks Manufacturing Emea BV; 4. Orders Ireland to bear its own costs. Van der WoudeTomljenovićBieliūnasMarcoulliKornezovDelivered in open court in Luxembourg on 24 September 2019.E. CoulonRegistrarM. van der WoudePresidentTable of contentsI. Background to the dispute and legal frameworkA. National legislative frameworkB. Advance pricing arrangementC. Background to the dispute1. Administrative procedure before the Commission2. Contested decision(a) Description of the contested measure(b) Assessment of the contested measure(c) Recovery of the State aid(d) ConclusionII. Procedure and forms of order soughtA. Written part of the procedure in Case T‑760/151. Composition of the formation of the Court and priority treatment2. Interventions3. Applications for confidential treatment4. Forms of order soughtB. Written part of the procedure in Case T‑636/162. Applications for confidential treatment3. Forms of order soughtC. Joinder for the purposes of the oral part of the procedure, and the oral part of the procedureIII. LawA. Procedural matters1. Joinder of the present cases for the purposes of the decision closing the proceedings2. Request that Starbucks’ observations on the report for the hearing be withdrawn from the case file3. Admissibility of Annex A.7 to the application in Case T‑760/15B. Pleas raised and structure of the examination of the present actionsC. Existence of an arm’s length principle in the field of State aid control and compliance with the principle of Member States’ fiscal autonomyD. Dispute as to the principal reasoning regarding the existence of a tax advantage in favour of SMBV (recitals 275 to 361 of the contested decision)1. Choice of the TNMM in the case at hand and the lack of examination of the intra-group transaction for which the APA had in reality been requested (first line of reasoning)(a) Preliminary observations(b) Burden of proof(c) Intensity of review to be conducted by the Court(d) Failure to identify and analyse the royalty paid by SMBV to Alki in the APA(e) Necessity of prioritising the CUP method over the TNMM2. Whether the royalty paid by SMBV to Alki should have been zero (second line of reasoning)(b) SMBV’s royalty-related functions(c) Normal taxation rules under Netherlands law(d) Use of evidence by the Commission that was not available when the APA was concluded(e) Whether the roasting IP represented a value for SMBV(1) Whether SMBV exploited the roasting IP directly on the market(2) Whether SMBV has been loss-making on its roasting activities(f) Comparison with coffee roasting agreements concluded by Starbucks with third parties and against similar licensing arrangements ‘on the market’(1) Contracts concluded subsequent to the APA(2) Contracts concluded with undertakings which do not roast coffee(3) Contracts with undertakings that did not engage in the sale of roasted coffee to stores or to consumers(4) Contracts concerning products other than roasted coffee(5) Contract which provides for the payment of a royalty for the use of the roasting IP(6) Contract concluded with unaffiliated manufacturing company 2(g) Arrangements between Starbucks’ competitors and third-party roasters(h) Argument that the level of the royalty should have been lower than the level endorsed by the APA3. Annual determination of the costs of green coffee beans (third line of reasoning)(a) Whether the price of green coffee beans was outside the scope of the contested measure(b) Whether the level of the mark-up applied to the costs of green coffee beans sold by SCTC to SMBV was not in conformity with an arm’s length levelE. Dispute of the subsidiary reasoning regarding the existence of a tax advantage in favour of SMBV (recitals 362 to 408 of the contested decision)1. Identification of SMBV as the most complex entity (fourth line of reasoning)2. Analysis of SMBV’s functions and determination of SMBV’s profit on the basis of operating costs (fifth line of reasoning)(a) Choice of profit level indicator(b) Commission’s comparability analysis3. Choice of adjustments (sixth line of reasoning)(b) Cost-base adjustment(c) ‘Working capital adjustment’(1) Scope of the adjustment at issue(2) Complaint alleging the absence of a reduction in SMBV’s tax burdenF. Whether the APA derogated from Article 8b of the CIT and from the transfer pricing decree (reasoning in respect of the limited reference system, recitals 409 to 412 of the contested decision).G. ConclusionIV. Costs( *1 ) Languages of the case: Dutch and English.( 1 ) Confidential information omitted. | c484a-333a5cb-4af8 | EN |
The General Court confirms the Commission’s decision on the aid measure granted by Luxembourg to Fiat Chrysler Finance Europe | 24 September 2019 ( *1 )(State aid — Aid granted by Luxembourg — Decision declaring the aid incompatible with the internal market and unlawful and ordering its recovery — Tax ruling — Advantage — Arm’s length principle — Selectivity — Presumption — Restriction of competition — Recovery)In Cases T‑755/15 and T‑759/15, Grand Duchy of Luxembourg, represented initially by D. Holderer and T. Uri, subsequently by T. Uri, acting as Agents, and initially by D. Waelbroeck, S. Naudin and A. Steichen, subsequently by D. Waelbroeck and A. Steichen, lawyers,applicant in Case T‑755/15,supported by Ireland, represented initially by E. Creedon, G. Hodge and A. Joyce, subsequently by G. Hodge, M. Browne and A. Joyce, and finally by A. Joyce and J. Quaney, acting as Agents, and by P. Gallagher and M. Collins, Senior Counsel, B. Doherty and S. Kingston, Barristers,intervener, Fiat Chrysler Finance Europe, established in Luxembourg (Luxembourg), represented by J. Rodríguez, Solicitor, G. Maisto and M. Engel, lawyers,applicant in Case T‑759/15, Ireland, represented initially by E. Creedon, G. Hodge, K. Duggan and A. Joyce, subsequently by G. Hodge, K. Duggan, M. Browne and A. Joyce, and finally by A. Joyce and J. Quaney, acting as Agents, and by M. Collins and P. Gallagher, Senior Counsel, S. Kingston and B. Doherty, Barristers,v European Commission, represented by P.-J. Loewenthal and B. Stromsky, acting as Agents,defendant,APPLICATIONS pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2016/2326 of 21 October 2015 on State aid SA.38375 (2014/C ex 2014/NN) which Luxembourg granted to Fiat (OJ 2016 L 351, p. 1),THE GENERAL COURT (Seventh Chamber, Extended Composition),composed of M. van der Woude, President, V. Tomljenović (Rapporteur), E. Bieliūnas, A. Marcoulli and A. Kornezov, Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written part of the procedure and further to the hearing on 21 June 2018,gives the following Judgment I. Background to the dispute A. The tax ruling issued to FFT by the Luxembourg tax authorities 1On 14 March 2012, the tax adviser of Fiat Chrysler Finance Europe, formerly Fiat Finance and Trade Ltd (‘FFT’), sent a letter to the Luxembourg tax authorities requesting a tax ruling. [confidential] ( 1 )2On 3 September 2012, the Luxembourg tax authorities issued a tax ruling in favour of FFT (‘the tax ruling at issue’). The ruling was contained in a letter which stated that, ‘with respect to [the] letter dated [14 March 2012] regarding the intra-group financing activity of [FFT], [it is] hereby [confirmed] that the transfer pricing analysis hereafter has been realised in accordance with the Circular 164/2 of the 28 January 2011 and respects the arm’s length principle’.3The letter of 3 September 2012 also made clear that the decision contained therein was to be binding on the tax authorities for a period of five years (that is from tax year 2012 to tax year 2016). B. The administrative procedure before the Commission 4On 19 June 2013, the European Commission sent the Grand Duchy of Luxembourg an initial request for detailed information on its national practice regarding tax rulings. That initial request for information was followed by a lengthy exchange of correspondence between the Grand Duchy of Luxembourg and the Commission until, on 24 March 2014, the Commission adopted a decision requiring information to be provided to it by the Grand Duchy of Luxembourg.5On 11 June 2014, the Commission decided to initiate the formal investigation procedure under Article 108(2) TFEU (‘the opening decision’) in respect of the tax ruling at issue. Between the date of the opening decision and 15 July 2015, there was a further lengthy exchange of correspondence between the Commission and the Grand Duchy of Luxembourg, as well as FFT, with particular regard to the tax ruling at issue. C. The contested decision 6On 21 October 2015, the Commission adopted Decision (EU) 2016/2326 on State aid SA.38375 (2014/C ex 2014/NN) which Luxembourg granted to Fiat (OJ 2016 L 351, p. 1, ‘the contested decision’). 1. Description of the contested measure 7In Section 2 of the contested decision, entitled ‘Description of the aid measure’, the Commission first described FFT, the beneficiary of the tax ruling at issue, which was part of the Fiat/Chrysler automobile group (‘Fiat/Chrysler group’). It stated that FFT provided treasury services and financing to the Fiat/Chrysler group companies established in Europe, excluding those established in Italy, and that it operated from Luxembourg, where its head office was located. The Commission stated that FFT was involved, in particular, in market funding and liquidity investments, relations with financial market actors, financial coordination and consultancy services to the group companies, cash management services to the group companies, short-term or medium-term inter-company funding, and coordination with the other treasury companies (recitals 34 to 51 of the contested decision).8The Commission then described the tax ruling at issue, stating that it had been issued by the Luxembourg tax administration on 3 September 2012. It indicated that that ruling followed (i) the letter of 14 March 2012 from FFT’s tax adviser to the Luxembourg tax administration, containing a request for approval of an advance transfer pricing arrangement, and (ii) a transfer pricing report containing a transfer pricing analysis, prepared by the tax adviser in support of FFT’s request for a tax ruling (‘the transfer pricing report’) (recitals 9, 53 and 54 of the contested decision).9The Commission described the tax ruling at issue as endorsing a method for arriving at a profit allocation to FFT within the Fiat/Chrysler group, which enabled FFT to determine its corporate income tax liability to the Grand Duchy of Luxembourg on a yearly basis. It pointed out that the tax ruling at issue had been binding for a period of five years, from the 2012 tax year until the 2016 tax year (recitals 52 and 54 of the contested decision).10The Commission noted that, according to the transfer pricing report, the most appropriate method for determining the taxable profit of FFT was the transactional net margin method (‘the TNMM’). This method entails, according to the Commission, taking into consideration the net margins earned in comparable transactions by independent enterprises. This choice was justified, according to that report, by the fact that FFT was providing financial services only to Fiat/Chrysler group companies. The Commission added that, according to the transfer pricing report, the remuneration due to FFT, which constituted the taxable profit, had to be determined by reference to the capital needed by FFT to perform its functions and to bear its risks, in relation to the assets in use (recitals 55 and 56 of the contested decision).11Specifically, the Commission found that the transfer pricing report, as endorsed by the tax ruling at issue, proposed calculating the overall remuneration due to FFT for its financing and treasury activities and the risks that it bore, such remuneration consisting of the following two components (recital 70 of the contested decision):–a ‘risk remuneration’, calculated by multiplying FFT’s hypothetical regulatory capital of EUR 28500000, estimated by applying the Basel II framework by analogy, by the pre-tax expected return of 6.05%, estimated using the Capital Asset Pricing Model (‘CAPM’);a ‘functions remuneration’, calculated by multiplying what is designated as FFT’s capital used to perform the functions, estimated as EUR 93710000, by the market interest rate applied to short-term deposits, estimated to be 0.87%.12In addition, the Commission noted that the tax ruling at issue had endorsed the proposal in the transfer pricing report not to remunerate the portion of FFT’s equity designated as supporting FFT’s financial investments in Fiat Finance North America Inc. (‘FFNA’) and Fiat Finance Canada Ltd (‘FFC’) (recital 69 of the contested decision). 2. Description of the Luxembourg rules on transfer pricing 13The Commission indicated that the tax ruling at issue had been issued on the basis of Article 164(3) of the Luxembourg Income Tax Code (loi du 4 décembre 1967 concernant l’impôt sur le revenu (Law of 4 December 1967 on income tax), as amended, ‘the Tax Code’) and Circular L.I.R. No 164/2 of 28 January 2011, issued by the director of Luxembourg taxes (‘the Circular’). In that regard, first, the Commission noted that that article established the arm’s length principle under Luxembourg tax law, according to which transactions between intra-group companies (‘integrated companies’) were to be remunerated as if they had been agreed to by independent companies negotiating under comparable circumstances at arm’s length (‘stand-alone companies’). Second, it added that the Circular explained in particular how to determine an arm’s length remuneration specifically in the case of intra-group financing companies (recitals 74 to 83 of the contested decision). 3. Description of the OECD Guidelines 14The Commission outlined the transfer pricing guidelines of the Organisation for Economic Cooperation and Development (OECD) and indicated that transfer prices referred to prices charged for commercial transactions between various entities belonging to the same corporate group. It stated that, in order to avoid a situation where multinational companies had a financial incentive to allocate as little profit as possible to jurisdictions where their profits were subject to higher taxation, tax administrations should only accept transfer prices between integrated companies when, in accordance with the arm’s length principle, transactions are remunerated as if they were agreed to by stand-alone companies negotiating under comparable circumstances at arm’s length. The Commission pointed out that that principle was to be found in Article 9 of the OECD Model Tax Convention on Income and on Capital (‘the OECD Model Tax Convention’) (recitals 84 to 87 of the contested decision).15The Commission recalled that the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, adopted by the OECD’s Committee on Fiscal Affairs on 27 June 1995 and updated on 22 July 2010 (‘the OECD Guidelines’), set out five methods for approximating an arm’s length pricing of transactions and profit allocation between integrated companies. Only two of those methods were relevant for the contested decision (recitals 88 and 89 of the contested decision).16The first of these is the comparable uncontrolled price (‘CUP’) method, which is a traditional transaction method. The Commission noted that the CUP method compares the price charged for the transfer of property or services in a transaction between two associated enterprises to the price charged for the transfer of property or services in a comparable transaction between independent enterprises conducted under comparable circumstances (recital 90 of the contested decision).17The second method is the TNMM, which is an indirect method used to approximate an arm’s length pricing of transactions and profit allocation between companies of the same group. The Commission described that method as one that involves estimating what would be an arm’s length profit for an entire activity, rather than for specific transactions. It explained that, in that context, a profit level indicator would be selected, such as costs, turnover or fixed investment, to which would be applied a profit ratio reflecting that observed in comparable uncontrolled transactions (recital 91 of the contested decision). 4. Assessment of the contested measure 18In Section 7 of the contested decision, entitled ‘Assessment of the contested measure’, the Commission concluded that State aid had been granted.19After recalling the conditions for a finding of State aid, according to which, in order for a measure to be categorised as State aid within the meaning of Article 107(1) TFEU, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient; and, fourth, it must distort or threaten to distort competition, the Commission found that the first condition had been fulfilled in this case. In that regard, it stated that the tax ruling at issue was imputable to the Grand Duchy of Luxembourg. Moreover, the Commission found that that ruling had given rise to a loss of State resources, since any reduction of FFT’s tax liability had resulted in a loss of tax revenue that would otherwise have been available to the Grand Duchy of Luxembourg (recitals 185 to 188 of the contested decision).20As regards the second and fourth conditions, the Commission found that since FFT was part of a group operating in all Member States, any aid in its favour was liable to affect intra-Union trade. Moreover, it found that, in so far as the tax ruling at issue relieved FFT of a tax liability, that ruling improved its financial position and, as a result, distorted or threatened to distort competition (recital 189 of the contested decision).21As regards the third condition for a finding of State aid, the Commission considered that the tax ruling at issue conferred a selective advantage on FFT, in so far as it had resulted in a lowering of FFT’s tax liability in Luxembourg by deviating from the tax which FFT would have been liable to pay under the ordinary corporate income tax system (recital 190 of the contested decision).22As a preliminary point, the Commission observed that the case-law had established a three-step analysis to be used in determining whether a tax measure is selective. The first step is to identify the common or normal regime applicable in the Member State (‘the reference system’). In the second step, it is necessary to determine whether the tax measure in question constitutes a derogation from that system, in so far as it differentiates between economic operators who, in the light of the objectives intrinsic to the system, are in a comparable factual and legal situation. The Commission then recalled that, in the third step, if the measure constitutes a derogation from the reference system, the State must establish whether that measure is justified by the nature or the general scheme of the reference system (recital 192 of the contested decision).23As regards the first step, identification of the reference system, the Commission considered that, in the present case, this was the general Luxembourg corporate income tax system, the objective of which was to tax the profits of all companies subject to tax in Luxembourg. It stated in that regard that the general Luxembourg corporate income tax system applied to domestic companies and foreign companies resident in Luxembourg, including Luxembourg branches of foreign companies. The Commission considered that the fact that there was a difference in determining the taxable profits of stand-alone companies and integrated companies had no bearing on the objective of the general Luxembourg corporate income tax system, which aimed to tax the profits of all companies resident in Luxembourg, whether or not integrated, and that both types of company are in a similar factual and legal situation in the light of the intrinsic objective of that system. The Commission rejected all the arguments put forward by the Grand Duchy of Luxembourg and by FFT to the effect that Article 164 of the Tax Code or the Circular constituted the relevant reference system, and also their argument that the reference system for determining whether the tax ruling at issue was selective had to be limited to undertakings subject to transfer pricing rules (recitals 193 to 215 of the contested decision).24As regards the second step, the Commission stated that whether a tax measure constituted a derogation from the reference system would generally coincide with identification of the advantage granted to the beneficiary under that measure. In its view, where a tax measure results in an unjustified reduction of the tax liability of a beneficiary who would otherwise be subject to a higher level of tax under the reference system, that reduction constitutes both the advantage granted by the tax measure and the derogation from the reference system. The Commission also noted that, according to the case-law, in the case of an individual measure, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective (recitals 216 to 218 of the contested decision).25The Commission went on to state that a tax measure which results in a group company charging transfer prices that do not resemble prices which would be charged between independent undertakings under the arm’s length principle confers an advantage on that company, in so far as it results in a reduction of its taxable base and thus its tax liability under the ordinary corporate income tax system, which, according to the Commission, the Court of Justice had accepted. Therefore, the Commission explained that it was required to verify whether the methodology accepted by the Luxembourg tax administration by way of the tax ruling at issue for the determination of FFT’s taxable profits in Luxembourg departed from a methodology that led to a reliable approximation of a market-based outcome, and thus from the arm’s length principle. In that case the tax ruling at issue would be deemed to confer a selective advantage on FFT for the purposes of Article 107(1) TFEU (recitals 222 to 227 of the contested decision).26Consequently, the Commission found that the arm’s length principle necessarily formed part of its assessment, under Article 107(1) TFEU, of tax measures granted to integrated companies, irrespective of whether a Member State had incorporated that principle into its national legal system. The Commission then explained, in response to the arguments raised by the Grand Duchy of Luxembourg during the administrative procedure, that it had not examined whether the tax ruling at issue complied with the arm’s length principle, as laid down in Article 164(3) of the Tax Code or in the Circular, but that it had sought to determine whether the Luxembourg tax administration had conferred a selective advantage on FFT for the purposes of Article 107(1) TFEU (recitals 228 to 231 of the contested decision).27In the first place, the Commission considered that several of the methodological choices approved by the Grand Duchy of Luxembourg and underlying the transfer pricing analysis in the tax ruling at issue resulted in a reduction of the corporate income tax that stand-alone companies would have been obliged to pay (recitals 234 to 240 of the contested decision).28First, in relation to the capital to be remunerated, the Commission did not consider the tax adviser’s chosen profit level indicator, namely FFT’s hypothetical regulatory capital, to be appropriate in the application of the TNMM for estimating an arm’s length remuneration for the functions performed by FFT. The Commission went on to find that, by taking into account the hypothetical regulatory capital of EUR 28.5 million, instead of the accounting equity, which was EUR 287.5 million in 2011, on the basis of which the CAPM was applied, the tax adviser had divided FFT’s taxable remuneration by 10. The Commission made clear that it had rejected all the arguments of the Grand Duchy of Luxembourg and FFT in that respect (recitals 248 to 266 of the contested decision).29Second, as regards the application of the Basel II framework in order to determine the hypothetical regulatory capital, the Commission considered that the Grand Duchy of Luxembourg had made errors that led to FFT’s hypothetical regulatory capital being underestimated and resulted in a lowering of FFT’s tax liability (recitals 267 to 276 of the contested decision).30Third, the Commission found that the tax adviser had made several deductions from FFT’s remaining capital that departed from a market-based outcome. First of all, it observed that if the hypothetical regulatory capital had been correctly estimated, it was likely that no capital in excess of regulatory capital would have been found. Next, the Commission took the view that the tax adviser’s decision to isolate the equity component designated as ‘equity supporting the financial investments in FFNA and FFC’ and to accord it a zero remuneration for the purpose of estimating FFT’s tax base was inappropriate. The Commission indicated that it did not regard the Grand Duchy of Luxembourg’s arguments on this point as convincing (recitals 277 to 291 of the contested decision).31Fourth, the Commission considered that the tax adviser’s choice of a beta of 0.29 when using the CAPM to determine the return on capital to be applied to FFT’s hypothetical regulatory capital resulted in a profit allocation to FFT that was not in line with the arm’s length principle (recitals 292 to 301 of the contested decision).32Among the conclusions reached by the Commission in the light of those findings are: (i) the appropriate level of remuneration for the financing and treasury functions of FFT should be established on the basis of FFT’s accounting equity; (ii) 2012 was an appropriate reference year for assessing FFT’s tax base in Luxembourg; (iii) the pre-tax return on equity of 6.05% (and the post-tax return of 4.3%) accepted by the tax ruling at issue and calculated using the CAPM was well below the required returns on capital in the financial sector, which had remained consistently at or above 10%; and (iv) the required post-tax return on equity was 10%, applied to the full amount of the accounting equity (recitals 302 to 311 of the contested decision).33In the second place, the Commission rejected FFT’s argument that there was no advantage for the Fiat/Chrysler group because any increase in the tax base in Luxembourg would have been offset in full by an increased tax deduction in other Member States (recitals 312 to 314 of the contested decision).34In the third place, as a subsidiary point, the Commission found that, in any event, the tax ruling at issue also granted a selective advantage under the more limited reference system, invoked by the Grand Duchy of Luxembourg and by FFT, consisting of Article 164(3) of the Tax Code and the Circular, which laid down the arm’s length principle in Luxembourg tax law (recitals 315 to 317 of the contested decision).35In the fourth place, the Commission rejected FFT’s argument that, in order to prove selective treatment benefiting FFT as a result of the tax ruling at issue, the Commission should have compared that ruling to the practice of the Luxembourg tax administration under the Circular and, in particular, to the tax rulings granted to other financing and treasury companies that the Grand Duchy of Luxembourg had submitted to the Commission as part of a representative sample of its tax ruling practice (recitals 318 to 336 of the contested decision).36In the fifth place, neither the Grand Duchy of Luxembourg nor FFT had, according to the Commission, advanced any possible justification for the selective treatment of FFT as a result of the tax ruling at issue. Nor had the Commission identified any ground justifying the preferential treatment from which FFT had benefited (recitals 337 and 338 of the contested decision).37The Commission thus concluded, in the light of the foregoing considerations, that the tax ruling at issue had conferred a selective advantage on FFT in that it had resulted in a lowering of FFT’s tax liability, principally, under the general Luxembourg corporate income tax system as compared to stand-alone companies and, as a subsidiary point, under the tax regime applicable to integrated companies (recitals 339 and 340 of the contested decision).38Finally, the Commission considered that the beneficiary of the advantage at issue was the Fiat/Chrysler group as a whole, in so far as FFT formed an economic unit with the other entities within the group, and that those entities had benefited from the tax reduction granted to FFT, given that that tax reduction necessarily had the effect of reducing the pricing conditions of its intra-group loans (recitals 341 to 345 of the contested decision).39In the light of all of the foregoing considerations, the Commission concluded that the tax ruling at issue constituted State aid and that the aid in question was operating aid (recitals 346 and 347 of the contested decision).40In Section 8 of the contested decision, entitled ‘Compatibility of the aid’, the Commission concluded that the aid granted to FFT was incompatible with the internal market. In this respect, it noted that the Grand Duchy of Luxembourg had not invoked any of the derogations provided for in Article 107(2) and (3) TFEU and, moreover, that the aid in question, which had to be considered to be operating aid, could not normally be considered compatible with the internal market (recitals 348 to 351 of the contested decision).41In Section 9 of the contested decision, entitled ‘Unlawfulness of the aid’, the Commission observed that the Grand Duchy of Luxembourg had not notified it, in accordance with Article 108(3) TFEU, of any plan to grant the tax ruling at issue, nor had it complied with the standstill obligation laid down in that provision. Consequently, the tax ruling at issue constituted unlawful State aid, put into effect in contravention of that provision (recitals 352 and 353 of the contested decision).42In Section 10 of the contested decision, entitled ‘Recovery’, the Commission stated, first, that the arguments advanced by the Grand Duchy of Luxembourg as to observance of the principles of protection of legitimate expectations and legal certainty were without merit (recitals 354 to 364 of the contested decision).43Second, the Commission pointed out that it was not required to state the exact amount of the aid to be recovered, and that it was sufficient for the contested decision to include information enabling the addressee to work out the amount itself without overmuch difficulty. In the present case, the Commission proposed one possible methodology in the contested decision for eliminating the selective advantage granted to FFT by the tax ruling at issue, and made clear that it would also be prepared to accept another method of calculation should the Grand Duchy of Luxembourg propose one before the deadline for implementation of the contested decision, provided that that method resulted in a reliable approximation of a market-based outcome (recitals 365 to 369 of the contested decision).44Third, the Commission found that, in the first instance, the Grand Duchy of Luxembourg was required to recover from FFT the unlawful and incompatible aid granted by means of the tax ruling at issue. Should FFT not have been in a position to repay the aid in full, the Grand Duchy of Luxembourg was to recover the balance from Fiat Chrysler Automobiles NV, the successor of Fiat SpA, since it was that entity which controlled the group to which FFT belonged (recital 370 of the contested decision).45In conclusion, the Commission found that the Grand Duchy of Luxembourg had, by way of the tax ruling at issue, unlawfully granted State aid to FFT and to the group to which it belonged, in breach of Article 108(3) TFEU, that that aid was incompatible with the internal market and that, consequently, the Grand Duchy of Luxembourg was required to recover it from FFT or, in the event of FFT failing to repay the full amount of the aid, from Fiat Chrysler Automobiles (recital 371 of the contested decision).46The operative part of the contested decision is worded as follows: ‘Article 1 The tax ruling [at issue], which enables [FFT] to determine its tax liability in Luxembourg on a yearly basis for a period of five years, constitutes aid within the meaning of Article 107(1) [TFEU] that is incompatible with the internal market and that was unlawfully put into effect by [the Grand Duchy of] Luxembourg in breach of Article 108(3) [TFEU]. Article 2 1. [The Grand Duchy of] Luxembourg shall recover the incompatible and unlawful aid referred to in Article 1 from [FFT].2. Any sums that remain unrecoverable from [FFT], following the recovery described in the paragraph 1, shall be recovered from Fiat Chrysler Automobiles NV.3. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries until their actual recovery.4. The interest shall be calculated on a compound basis in accordance with Chapter V of Regulation (EC) No 794/2004. Article 3 1. Recovery of the aid granted referred to in Article 1 shall be immediate and effective.2. [The Grand Duchy of] Luxembourg shall ensure that this Decision is implemented within four months following the date of notification of this Decision. Article 4 1. Within two months following notification of this Decision, [the Grand Duchy of] Luxembourg shall submit to the Commission information regarding the methodology used to calculate the exact amount of aid.2. [The Grand Duchy of] Luxembourg shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid granted referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. Article 5 This Decision is addressed to the Grand Duchy of Luxembourg.’ II. Procedure and forms of order sought A. The written part of the procedure and the forms of order sought in Case T‑755/15 47By application lodged at the Court Registry on 30 December 2015, the Grand Duchy of Luxembourg brought the action in Case T‑755/15 seeking annulment of the contested decision. 1. Composition of the formation of the Court and priority treatment 48By document lodged at the Court Registry on 6 June 2016, the Grand Duchy of Luxembourg requested that the case be heard and determined by a Chamber sitting in extended composition. The Court took formal note, pursuant to Article 28(5) of its Rules of Procedure, of the fact that Case T‑755/15 had been referred to the Fifth Chamber, Extended Composition.49Following a change in the composition of the Chambers of the Court on 26 September 2016, the Judge-Rapporteur was assigned, pursuant to Article 27(5) of the Rules of Procedure, to the Seventh Chamber, Extended Composition, to which Case T‑755/15 was accordingly allocated.50Since a member of the Seventh Chamber, Extended Composition, of the General Court was unable to sit in the present case, the President of the General Court, by decision of 6 February 2017, designated the Vice-President of the General Court to complete the Chamber.51By decision of 12 December 2017, the President of the Seventh Chamber, Extended Composition, of the General Court approved the proposal of the Judge-Rapporteur that Case T‑755/15 be given priority under Article 67(2) of the Rules of Procedure. 2. Request that the case be dealt with under the expedited procedure 52By separate document lodged at the Court Registry on 30 December 2015, the Grand Duchy of Luxembourg requested that Case T‑755/15 be dealt with under the expedited procedure provided for in Article 151 of the Rules of Procedure. On 2 February 2016, the Court decided not to grant that request. 3. Interventions 53By document lodged at the Court Registry on 6 April 2016, the United Kingdom of Great Britain and Northern Ireland applied for leave to intervene in support of the form of order sought by the Commission.54By document lodged at the Court Registry on 7 April 2016, Ireland applied for leave to intervene in support of the form of order sought by the Grand Duchy of Luxembourg.55By order of 25 May 2016, the President of the Fifth Chamber of the General Court granted the applications to intervene of the United Kingdom and Ireland.56By document lodged at the Court Registry on 9 November 2016, the United Kingdom withdrew its intervention.57By order of 15 December 2016, the President of the Seventh Chamber, Extended Composition, of the General Court removed the United Kingdom as intervener from Case T‑755/15. 4. Applications for confidential treatment 58By documents lodged at the Court Registry on 29 April, 27 June and 24 October 2016, the Grand Duchy of Luxembourg requested that certain information contained in the application, in the reply, in the rejoinder and in certain annexes to those pleadings be treated as confidential vis-à-vis the United Kingdom and Ireland. By document lodged at the Court Registry on 3 January 2017, the Grand Duchy of Luxembourg informed the Court that it wished to maintain its applications for confidential treatment vis-à-vis Ireland, in the event of any joinder of Cases T‑755/15 and T‑759/15. 5. Forms of order sought 59The Grand Duchy of Luxembourg claims that the Court should:declare the present action admissible and well founded;principally, annul the contested decision;alternatively, annul the contested decision in so far as it orders the recovery of the aid;order the Commission to pay the costs.60Ireland, intervening in support of the form of order sought by the Grand Duchy of Luxembourg, claims that the Court should annul the contested decision in whole or in part.61The Commission contends that the Court should:declare the action unfounded;order the Grand Duchy of Luxembourg to pay the costs. B. The written part of the procedure and the forms of order sought in Case T‑759/15 62By application lodged at the Court Registry on 29 December 2015, FFT brought the action in Case T‑759/15 seeking annulment of the contested decision.63Following a change in the composition of the Chambers of the Court on 26 September 2016, the Judge-Rapporteur was assigned, pursuant to Article 27(5) of the Rules of Procedure, to the Seventh Chamber, Extended Composition, to which Case T‑759/15 was accordingly allocated.64On a proposal from the Seventh Chamber, the Court decided, on 15 February 2017, to refer the case to a Chamber sitting in extended composition.65Since a member of the Seventh Chamber, Extended Composition, of the General Court was unable to sit in the present case, the President of the General Court, by decision of 23 February 2017, designated the Vice-President of the General Court to complete the Chamber.66By decision of 12 December 2017, the President of the Seventh Chamber, Extended Composition, of the General Court approved the proposal of the Judge-Rapporteur that Case T‑759/15 be given priority under Article 67(2) of the Rules of Procedure.67By separate document lodged at the Court Registry on 29 December 2015, FFT requested that Case T‑759/15 be dealt with under the expedited procedure provided for in Article 151 of the Rules of Procedure. On 2 February 2016, the Court decided not to grant that request.68By document lodged at the Court Registry on 6 April 2016, the United Kingdom applied for leave to intervene in support of the form of order sought by the Commission.69By document lodged at the Court Registry on 7 April 2016, Ireland applied for leave to intervene in support of the form of order sought by FFT.70By order of 18 July 2016, the President of the Fifth Chamber of the General Court granted the applications to intervene of the United Kingdom and Ireland.7172By order of 15 December 2016, the President of the Seventh Chamber, Extended Composition, removed the United Kingdom as intervener from Case T‑759/15.73By documents lodged at the Court Registry on 20 May, 11 June, 27 July and 28 July 2016, FFT requested that certain information contained in the application, in the defence, in the reply and in certain annexes to those pleadings be treated as confidential vis-à-vis the United Kingdom and Ireland.74By document lodged at the Court Registry on 17 January 2017, FFT stated that it maintained its claims of confidentiality with regard to Ireland, in the event of the case being joined with Case T‑755/15.75FFT claims that the Court should:declare the action admissible;annul Articles 1 to 4 of the contested decision;76Ireland, intervening in support of the form of order sought by FFT, claims that the Court should annul the contested decision in whole or in part.77order FFT to pay the costs. C. Joinder for the purposes of the oral part of the procedure, and the oral part of the procedure in Cases T‑755/15 and T‑759/15 1. Joinder 78By document lodged at the Court Registry on 1 December 2016, the Grand Duchy of Luxembourg applied for Cases T‑755/15 and T‑759/15 to be joined for the purposes of the oral part of the procedure and of the decision which closes the proceedings.79By document lodged at the Court Registry on 1 December 2016, FFT also applied for Cases T‑755/15 and T‑759/15 to be joined for the purposes of the oral part of the procedure and of the decision which closes the proceedings.80By order of the President of the Seventh Chamber, Extended Composition, of the General Court of 27 April 2018, the parties having been heard, Cases T‑755/15 and T‑759/15 were joined for the purposes of the oral part of the procedure, in accordance with Article 68(1) of the Rules of Procedure. By the same order, it was decided to exclude the confidential information from the case file to be made available to Ireland. 2. Oral part of the procedure in Cases T‑755/15 and T‑759/15 81By letter lodged at the Court Registry on 7 February 2017, the Grand Duchy of Luxembourg requested that a hearing be held, in accordance with Article 106(2) of the Rules of Procedure.82By letter lodged at the Court Registry on 10 February 2017, FFT requested that a hearing be held, in accordance with Article 106(2) of the Rules of Procedure.83Acting on a report from the Judge-Rapporteur, the Court decided to open the oral part of the procedure in Cases T‑755/15 and T‑759/15. By way of measures of organisation of procedure under Article 89 of the Rules of Procedure, the Court asked the parties to answer questions in writing. The parties complied with those requests within the prescribed periods.84On 24 May 2017, FFT lodged a submission containing further evidence, on which the parties submitted their observations.85The parties presented oral argument and their answers to the questions put by the Court at the hearing on 21 June 2018. III. Law A. Joinder of the cases for the purposes of the present judgment 86In accordance with Article 19(2) of the Rules of Procedure, the President of the Seventh Chamber, Extended Composition, of the General Court referred the decision as to whether Cases T‑755/15 and T‑759/15 should be joined for the purposes of the decision closing the proceedings, which fell within his remit, to the Seventh Chamber, Extended Composition, of the General Court.87The parties having been heard at the hearing with respect to a possible joinder of the cases, it is appropriate for Cases T‑755/15 and T‑759/15 to be joined for the purposes of the decision which closes the proceedings, on account of the connection between them, in accordance with Article 68(1) of the Rules of Procedure. B. Pleas in law relied on and the structure of the examination of the present actions 88By the actions brought in Cases T‑755/15 and T‑759/15, annulment is sought of the contested decision in so far as it classifies the tax ruling at issue as State aid within the meaning of Article 107(1) TFEU and in so far as it orders the recovery of sums which have allegedly not been collected from FFT and the Fiat/Chrysler group by the Grand Duchy of Luxembourg as corporate income tax.89In support of its action, the Grand Duchy of Luxembourg puts forward three pleas in law.90The first plea in law, which covers, in essence, the condition for a finding of selective aid and the Commission’s competence in fiscal matters, is divided into three parts. First, the Grand Duchy of Luxembourg submits that, in the context of its examination of the selectivity of the contested measure, the Commission incorrectly considered the relevant reference framework to be the general corporate income tax regime (first part). Second, the Grand Duchy of Luxembourg claims that the Commission failed to demonstrate that the tax ruling at issue constituted a derogation from the reference framework used, or that it derogated from the arm’s length principle (second part). Third, the Grand Duchy of Luxembourg submits that the Commission infringed Articles 4 and 5 TEU and Article 114 TFEU by engaging in tax harmonisation in disguise, consisting in the imposition of a sui generis arm’s length principle (third part).91The second plea in law, which is divided into two parts, alleges infringement of Article 107(1) TFEU and of the Commission’s obligation to state reasons as provided for in Article 296 TFEU, in that the Commission failed to demonstrate that there was any advantage (first part) or any restriction of competition (second part).92The third plea in law, advanced in the alternative, alleges infringement of Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1). However, since that regulation has been repealed by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9), which was applicable at the date of the contested decision, this plea must be understood as alleging infringement of Article 16(1) of the latter regulation. The plea is divided into two parts. The Grand Duchy of Luxembourg claims that the Commission ordered recovery of the aid contrary to the principle of legal certainty (first part) and to its rights of defence (second part).93In support of its action, FFT puts forward four pleas in law.94The first plea in law, which is divided into two parts, alleges infringement of Article 107 TFEU. In support of the first part of its first plea, FFT submits that the Commission misapplied the concept of selective advantage. In that respect, it raises four complaints. The first alleges an error in the determination of the relevant reference framework. The second alleges an error in that an unprecedented and undefined concept of the arm’s length principle was applied. The third alleges that there was no proof that an advantage had been given to the Fiat/Chrysler group. The fourth complaint is that, even if the tax ruling at issue derogates from the general corporate income tax system, that derogation is justified. In support of the second part of its first plea, FFT claims that the Commission failed to show that the tax ruling at issue was liable to distort competition.95The second plea in law, which is also divided into two parts, alleges infringement of the second paragraph of Article 296 TFEU. FFT claims that the Commission failed to fulfil its obligation to state reasons through its failure to explain in the contested decision how it derived the arm’s length principle from EU law and what that principle is (first part). Next, it claims that the Commission failed to set out the reasons for its view that the tax ruling at issue distorted competition (second part).96The third plea in law alleges breach of the principle of legal certainty. FFT submits that the Commission’s formulation of the arm’s length principle introduces legal uncertainty and confusion as to when a tax ruling might breach the rules on State aid.97The fourth plea in law alleges breach of the principle of protection of legitimate expectations, in so far as the Commission did not assess the tax ruling at issue in the light of the relevant OECD rules.98It is apparent from all of the above that the Grand Duchy of Luxembourg and FFT are advancing, albeit in a different order, five series of pleas, alleging, in essence:in the first series, infringement of Articles 4 and 5 TEU, in so far as the Commission’s analysis would lead to tax harmonisation in disguise (third part of the first plea in Case T‑755/15);in the second series, infringement of Article 107 TFEU, of the obligation to state reasons provided for in Article 296 TFEU and breach of the principles of legal certainty and protection of legitimate expectations, in so far as the Commission considered that the tax ruling at issue conferred an advantage, notably on the ground that that tax ruling did not comply with the arm’s length principle (second part of the first plea and first part of the second plea in Case T‑755/15, second and third complaints in the first part of the first plea, first part of the second plea, third plea and fourth plea in Case T‑759/15);in the third series, infringement of Article 107 TFEU, in so far as the Commission found that that advantage was selective (first part of the first plea in Case T‑755/15 and first complaint in the first part of the first plea in Case T‑759/15);in the fourth series, infringement of Article 107 TFEU and of the obligation to state reasons provided for in Article 296 TFEU, in so far as the Commission found that the measure at issue restricted competition and distorted trade between Member States (second part of the second plea in Case T‑755/15 and second part of the first and second pleas in Case T‑759/15);in the fifth series, breach of the principle of legal certainty and infringement of the rights of the defence, in so far as the Commission ordered that the aid at issue be recovered (third plea in Case T‑759/15).99The Court will examine the pleas in the order of the series of pleas set out in paragraph 98 above. C. First series of pleas, alleging infringement of Articles 4 and 5 TEU, in so far as the Commission has allegedly engaged in tax harmonisation in disguise 100The Grand Duchy of Luxembourg claims, in essence, that the Commission exceeded its powers and infringed Articles 4 and 5 TEU by engaging in tax harmonisation in disguise, despite direct taxation falling within the exclusive competence of the Member States pursuant to Article 114 TFEU. It adds that the Commission established itself as a national ‘tax administrations appeal chamber’, by reviewing whether the tax ruling at issue was abnormal having regard to Luxembourg law and the OECD.101Ireland submits that the contested decision disturbs the division of powers between the European Union and the Member States established, in particular, by Article 3(6) TEU and Article 5(1) and (2) TEU, direct taxation being a matter that falls within the exclusive competence of the Member States. In its view, therefore, the Commission is engaging in harmonisation in disguise.102The Commission contests those arguments.103In essence, the parties disagree as to whether the Commission infringed the rules on the allocation of powers in so far as it allegedly engaged in tax harmonisation in disguise in the contested decision.104In that regard, it should be recalled that, according to settled case-law, while direct taxation, as EU law currently stands, falls within the competence of the Member States, they must nonetheless exercise that competence consistently with EU law (see judgment of 12 July 2012, Commission v Spain, C‑269/09, EU:C:2012:439, paragraph 47 and the case-law cited). Thus, intervention by the Member States in areas which have not been harmonised in the European Union, such as direct taxation, is not excluded from the scope of the rules on the monitoring of State aid. Accordingly, the Commission can classify a tax measure as State aid provided that the conditions for that classification are met (see, to that effect, judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 28; of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 81; and of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraphs 65 and 66).105It is true that, in the absence of EU rules governing the matter, it falls within the competence of the Member States to designate bases of assessment and to spread the tax burden across the different factors of production and economic sectors (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 97).106However, that does not mean that every tax measure, which affects, inter alia, the basis of assessment taken into account by the tax authorities, will escape the application of Article 107 TFEU. If such a measure in fact discriminates between companies that are in a comparable situation with regard to the objective of that tax measure and as a result confers selective advantages on the beneficiaries of the measure which favour ‘certain’ undertakings or the production of ‘certain’ goods, it can be considered State aid within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 104).107It follows from the foregoing that, since the Commission has the power to monitor compliance with Article 107 TFEU, it cannot be accused of having exceeded its powers when it examined the tax ruling at issue in order to determine whether it constituted State aid and, if it did, whether it was compatible with the internal market, within the meaning of Article 107(1) TFEU.108The Grand Duchy of Luxembourg is therefore wrong to claim that the Commission established itself as a tax appeal chamber for the Grand Duchy of Luxembourg, since the Commission merely exercised its powers under Article 107 TFEU in examining whether the tax ruling at issue complied with the law on State aid.109In those circumstances, it must be concluded that the Commission did not infringe Articles 4 and 5 TEU or Article 114 TFEU by adopting the contested decision.110That conclusion is not undermined by the arguments of the Grand Duchy of Luxembourg and Ireland.111First, in so far as the Grand Duchy of Luxembourg and Ireland claim that the Commission has engaged in tax harmonisation in disguise by disregarding the Luxembourg rules in order to conclude that the tax calculation did not comply with the arm’s length principle and by relying on rules that are not part of the Luxembourg tax system, that argument must be rejected as unfounded.112It does indeed follow from the case-law set out in paragraph 105 above that the Commission does not, at this stage of the development of EU law, have the power autonomously to define the ‘normal’ taxation of an integrated undertaking, disregarding national tax rules.113However, although ‘normal’ taxation is defined by the national tax rules and the actual existence of an advantage must be demonstrated by reference thereto, the fact remains that, as is recalled in paragraph 106 above, a tax measure which affects the tax base that is taken into account by the tax authorities may come within the scope of Article 107(1) TFEU. Thus, when considering whether the tax ruling at issue complied with the rules on State aid, the Commission did not engage in any ‘tax harmonisation’ but exercised the power conferred on it by Article 107(1) TFEU notably by verifying, in a specific case, whether that tax ruling conferred on its beneficiary an advantage as compared to ‘normal’ taxation, as defined by national tax law.114Second, the Grand Duchy of Luxembourg and Ireland claim that the contested decision creates ‘total legal uncertainty’, not only in the Member States but also in third countries, that that measure has been strongly criticised notably by leaders of the United States of America, that it is a ‘first’ which is illegal and that it will cause the Member States to notify all their tax rulings and to question existing tax rulings. Such arguments must be rejected as unfounded.115First, it does not follow from the contested decision that the Commission has concluded that every tax ruling necessarily constitutes State aid within the meaning of Article 107 TFEU. Provided that it does not grant any selective advantage, notably in that it does not result in a reduction of the tax burden of its beneficiary by derogating from the ‘normal’ taxation rules, such a tax ruling does not constitute State aid within the meaning of Article 107 TFEU and is not subject to a notification obligation under Article 2 of Regulation 2015/1589.116Second, contrary to what is maintained by the Grand Duchy of Luxembourg and Ireland, the contested decision does not create ‘total legal uncertainty’ in the Member States or third countries. It merely represents the application to the tax ruling at issue of Articles 107 and 108 TFEU, according to which a State measure which constitutes aid that is incompatible with the internal market is prohibited and the aid must be recovered.117It follows from all of the foregoing that the plea intended to establish that the Commission has engaged in tax harmonisation in disguise must be rejected as unfounded. D. Second series of pleas, alleging the absence of an advantage 1. Preliminary observations 118As a preliminary point, it must be borne in mind that, according to the case-law, classification as State aid requires all the conditions referred to in Article 107 TFEU to be fulfilled. It is thus established that, for a measure to be categorised as State aid within the meaning of that provision, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient; and, fourth, it must distort or threaten to distort competition (see judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40 and the case-law cited).119In the present case, it must be noted that, as is apparent from paragraphs 21 to 37 above, in the contested decision, the Commission examined the two criteria of the existence of an advantage and the selectivity of the measure at issue concurrently.120Specifically, principally, the Commission considered that the tax ruling at issue conferred a selective advantage on FFT with regard to the general Luxembourg corporate income tax system, because the methodology accepted in that tax ruling did not comply with the arm’s length principle, which necessarily formed part of the Commission’s assessment under Article 107(1) TFEU of tax measures granted to group companies, independently of whether a Member State had incorporated that principle into its national legal system, and according to which intra-group transactions should have been remunerated as if they had been negotiated between independent undertakings (‘the arm’s length principle as described by the Commission in the contested decision’) (see recitals 219 to 231 of the contested decision and, in particular, recital 228 of that decision). The Commission then set out, in recitals 234 to 311 of the contested decision, its reasoning according to which the methodology for determining FFT’s taxable profit, accepted by the tax ruling at issue, could not result in a reliable approximation of an outcome obtained under market conditions (arm’s length outcome).121Moreover, as a subsidiary point, the Commission considered that the tax ruling at issue conferred an advantage on FFT because it derogated from Article 164(3) of the Tax Code and the Circular, which established the arm’s length principle under Luxembourg law (see recitals 316 and 317 of the contested decision). The Commission then referred to its analysis, according to which the method validated by the tax ruling at issue could not result in a reliable approximation of a market-based outcome, as set out in the context of its main line of reasoning (see recitals 234 to 311 of the contested decision).122The Commission’s approach of examining the criteria of advantage and selectivity concurrently is not in itself incorrect, in so far as, as the Commission observes, both the advantage and the selective nature of that advantage are examined. Nevertheless, the Court considers it appropriate to consider, first of all, whether the Commission was entitled to conclude that there was an advantage, before going on, if necessary, to examine whether that advantage had to be considered to be selective.123In that regard, it must be noted that, although some of the arguments raised by the Grand Duchy of Luxembourg and FFT, including those put forward in the second part of the first plea of the Grand Duchy of Luxembourg, are presented as relating to the selectivity of the measure at issue, the Court considers that they are also intended to elicit a finding that the Commission wrongly concluded that the measure at issue conferred an advantage on FFT. The Court will therefore examine the arguments raised in the second part of the first plea of the Grand Duchy of Luxembourg in conjunction with the pleas challenging the Commission’s conclusion that the tax ruling at issue conferred an advantage on FFT.124In the light of these observations, the Court will examine the pleas put forward in support of the argument that FFT did not enjoy an advantage, distinguishing, first, the complaints made in respect of the Commission’s principal line of reasoning and, second, those relating to what was set out as a subsidiary line of reasoning. Third, the Court will examine the complaint by which the Grand Duchy of Luxembourg argues that the Commission has failed to prove the existence of an advantage at the level of the Fiat/Chrysler group. 2. The Commission’s principal line of reasoning, that the tax ruling at issue derogated from the general Luxembourg corporate income tax system 125The pleas put forward by the Grand Duchy of Luxembourg and FFT to challenge the examination of the advantage, the principal facet of the Commission’s approach, may be summarised as follows. First, the Grand Duchy of Luxembourg and FFT, supported by Ireland, dispute the existence of the arm’s length principle as described by the Commission in the contested decision and the Commission’s application of that principle as a criterion for assessing the existence of a selective advantage. Second, the Grand Duchy of Luxembourg disputes the Commission’s conclusion that the method validated by the tax ruling at issue for determining the amount of tax payable by FFT does not comply with the arm’s length principle. (a) Pleas alleging an error in the application of the arm’s length principle in the monitoring of State aid 126In essence, the Grand Duchy of Luxembourg and FFT claim that the Commission identified an arm’s length principle that is specific to EU law, in breach of the fiscal autonomy of the Member States, and that it examined the tax ruling at issue in the light of that principle, without taking account of Luxembourg law. They also submit that, by applying the arm’s length principle as described in the contested decision, the Commission breached the principles of legal certainty and protection of legitimate expectations, and failed to fulfil its obligation to state reasons.127128It will be recalled that, in recitals 219 to 231 of the contested decision, the Commission explained that it was entitled, in order to identify a selective advantage, to examine whether a tax ruling, such as that at issue, deviated from the arm’s length principle as described in the contested decision. It then outlined the scope of that arm’s length principle.129First and foremost, it must be noted that, as is apparent in particular from recitals 216, 231 and 311 of the contested decision, the examination in the light of the arm’s length principle as described by the Commission in the contested decision forms part of its principal analysis of the selective advantage. As is apparent from recitals 216, 219 and 301 of the contested decision, that analysis entails examining whether the tax ruling at issue derogates from the general Luxembourg corporate income tax system. It must be noted in that regard that the Commission had previously indicated, in recitals 194 to 199 of the contested decision, that the objective of the general Luxembourg corporate income tax system was to tax the profits of all companies resident in Luxembourg, whether or not integrated, and that both types of company are in a similar factual and legal situation in the light of that objective.130As regards the definition of the arm’s length principle, the Commission asserted, in recitals 222 and 225 of the contested decision, that, according to that principle, intra-group transactions should be remunerated as if they had been agreed to by independent companies. It added, in recital 226 of the contested decision, that the purpose of that principle was to ensure that intra-group transactions were treated for tax purposes by reference to the amount of profit that would have arisen if the same transactions had been executed by independent companies. The Commission moreover argued during the hearing that the arm’s length principle was, in its view, a tool for assessing the price level of intra-group transactions.131With regard to the legal nature of the arm’s length principle, the Commission considered, in recital 228 of the contested decision, that the arm’s length principle necessarily formed part of the assessment, under Article 107 TFEU, of tax measures granted to group companies, irrespective of whether the Member State had incorporated that principle into its national legal system. It stated that the arm’s length principle which it was applying was a general principle of equal treatment in taxation, which fell within the application of Article 107 TFEU. The Commission based that statement on the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416) concerning the tax regime for coordination centres in Belgium, in which the Court of Justice had held that the method for determining taxable income under that regime conferred a selective advantage on those centres. Specifically, the Commission referred to paragraph 96 of that judgment, in which the Court of Justice held that the effect of the method of assessment of the taxable income of the centres ‘[was] that the transfer prices [did] not resemble those which [were] charged in conditions of free competition’.132As regards the application of the arm’s length principle, in recital 227 of the contested decision, the Commission indicated that, ‘the Commission’s assessment of whether [the Grand Duchy of] Luxembourg [had] granted a selective advantage to FFT [had] therefore [to] consist in verifying whether the methodology accepted by the Luxembourg tax administration by way of the [tax ruling at issue] for the determination of FFT’s taxable profits in Luxembourg depart[ed] from a methodology that [led] to a reliable approximation of a market-based outcome and thus from the arm’s length principle’. It added, in recital 228 of the contested decision, that the arm’s length principle was used to establish whether the taxable profit of a group company for corporate income tax purposes had been determined on the basis of a methodology that approximated market conditions, so that that company was not treated favourably under the general corporate income tax system as compared to non-integrated companies whose taxable profit was determined by the market.133The Court must thus consider whether the Commission was entitled to analyse the measure at issue in the light of the arm’s length principle as described in the contested decision and set out in paragraphs 130 to 132 above, which consists in verifying whether intra-group transactions are remunerated as if they had been negotiated under market conditions.134As has been stated in paragraph 104 above, according to settled case-law, while direct taxation, as EU law currently stands, falls within the competence of the Member States, they must nonetheless exercise that competence consistently with EU law (see judgment of 12 July 2012, Commission v Spain,C‑269/09, EU:C:2012:439, paragraph 47 and the case-law cited). Thus, intervention by the Member States in matters of direct taxation, even if it relates to issues that have not been harmonised in the European Union, is not excluded from the scope of the rules on the monitoring of State aid.135It follows that the Commission can classify a tax measure as State aid provided that the conditions for that classification are met (see, to that effect, judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 28, and of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 81). Member States must exercise their competence in respect of taxation in accordance with EU law (judgment of 3 June 2010, Commission v Spain, C‑487/08, EU:C:2010:310, paragraph 37). Consequently, Member States must refrain from taking, in that context, any measure likely to constitute State aid that is incompatible with the internal market.136As regards the condition that the measure at issue must grant an economic advantage, it should be borne in mind that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 40 and the case-law cited; judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 21).137Specifically, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than that of other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU (judgment of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 14; see also judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 46 and the case-law cited).138In the case of tax measures, the very existence of an advantage may be established only when compared with ‘normal’ taxation (judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56). Accordingly, such a measure confers an economic advantage on its recipient if it mitigates the burdens normally included in the budget of an undertaking and which, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect (judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 22).139Consequently, in order to determine whether there is a tax advantage, the position of the recipient as a result of the application of the measure at issue must be compared with his position in the absence of the measure at issue (see, to that effect, judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraph 114), and under the normal rules of taxation.140In the context of determining the fiscal position of an integrated company which is part of a group of undertakings, it must be noted at the outset that the pricing of intra-group transactions carried out by that company is not determined under market conditions. That pricing is agreed to by companies belonging to the same group, and is therefore not subject to market forces.141Where national tax law does not make a distinction between integrated undertakings and stand-alone undertakings for the purposes of their liability to corporate income tax, that law is intended to tax the profit arising from the economic activity of such an integrated undertaking as though it had arisen from transactions carried out at market prices. In those circumstances, it must be held that, when examining, pursuant to the power conferred on it by Article 107(1) TFEU, a fiscal measure granted to such an integrated undertaking, the Commission may compare the fiscal burden of such an integrated undertaking resulting from the application of that fiscal measure with the fiscal burden resulting from the application of the normal rules of taxation under the national law of an undertaking placed in a comparable factual situation, carrying on its activities under market conditions.142Furthermore, and as the Commission correctly stated in the contested decision, those findings are supported by the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416) concerning Belgian tax law, which provided for integrated companies and stand-alone companies to be treated on equal terms. The Court of Justice recognised in paragraph 95 of that judgment the need to compare a regime of derogating aid with the ‘ordinary tax system, based on the difference between profits and outgoings of an undertaking carrying on its activities in conditions of free competition’.143In that context, although, through that fiscal measure granted to an integrated company, the national authorities have accepted a certain level of pricing for an intra-group transaction, Article 107(1) TFEU allows the Commission to check whether that pricing corresponds to pricing under market conditions, in order to determine whether, as a result, charges normally included in the budget of the undertaking concerned are mitigated, thus conferring on that undertaking an advantage within the meaning of that article. The arm’s length principle, as described by the Commission in the contested decision, is thus a tool for making that determination in the exercise of the Commission’s powers under Article 107(1) TFEU. The Commission also stated, correctly, in recital 225 of the contested decision, that the arm’s length principle was a ‘benchmark’ for establishing whether an integrated company was receiving, pursuant to a tax measure determining its transfer pricing, an advantage within the meaning of Article 107(1) TFEU.144It should also be stated that when the Commission uses that tool to check whether the taxable profit of an integrated undertaking pursuant to a tax measure corresponds to a reliable approximation of a taxable profit generated under market conditions, the Commission can identify an advantage within the meaning of Article 107(1) TFEU only if the variation between the two comparables goes beyond the inaccuracies inherent in the methodology used to obtain that approximation.145In the present case, the tax ruling at issue concerns the determination of FFT’s remuneration for its intra-group financing and treasury activities for the purpose of establishing its taxable profit under the Luxembourg Tax Code the objective of which, irrespective of whether the normal rules of taxation are to be broadly or narrowly defined, is to tax integrated and stand-alone undertakings in Luxembourg in the same way with regard to corporate income tax. The Commission was therefore in a position to verify whether FFT’s taxable profit pursuant to the tax ruling at issue was lower than its tax burden in the absence of that tax ruling and under the normal rules of taxation in Luxembourg law. Given that FFT is an integrated undertaking and that the Luxembourg Tax Code is intended to tax the profit resulting from the economic activity of such an integrated undertaking as if it had resulted from transactions carried out at market prices, it is necessary, in examining the tax ruling at issue, to compare FFT’s taxable profit as a result of the application of that tax ruling with the position, as it would be if the normal tax rules under Luxembourg law were applied, of an undertaking in a factually comparable situation, carrying on its activities in conditions of free competition. Against that background, although the tax ruling at issue accepted a certain level of pricing for intra-group transactions, it is necessary to check whether that pricing corresponds to prices that would have been charged under market conditions.146In that context, it must be stated that, with regard to the examination as to whether an integrated undertaking has obtained an advantage within the meaning of Article 107(1) TFEU, the Commission cannot be criticised for having used a methodology for determining transfer pricing that it considers appropriate in this instance in order to examine the level of transfer pricing for a transaction or for several closely connected transactions forming part of the contested measure. The Commission is nevertheless required to justify its choice of methodology.147Even though the Commission correctly observed that it cannot be formally bound by the OECD Guidelines, the fact remains that those guidelines are based on important work carried out by groups of renowned experts, that they reflect the international consensus achieved with regard to transfer pricing and that they thus have a real practical significance in the interpretation of issues relating to transfer pricing, as the Commission acknowledged in recital 87 of the contested decision.148Consequently, the Commission correctly concluded that it was entitled to examine, in the context of its analysis under Article 107(1) TFEU, whether intra-group transactions were remunerated as though they had been negotiated under market conditions. That finding is not called into question by the other arguments of the Grand Duchy of Luxembourg and FFT.149First, as regards FFT’s argument that the Commission failed to provide any legal basis for its arm’s length principle, it must admittedly be pointed out that, in recitals 228 and 229 of the contested decision, the Commission stated that the arm’s length principle as described in the contested decision existed independently of the incorporation of that principle into the national legal system. It also made clear that it had not examined whether the tax ruling at issue complied with the arm’s length principle laid down in Article 164(3) of the Tax Code or in the Circular, which incorporate the arm’s length principle into Luxembourg law. The Commission also confirmed that the arm’s length principle which it applied was distinct from that enshrined in Article 9 of the OECD Model Tax Convention.150However, the Commission also made clear, in recital 228 of the contested decision, that the arm’s length principle necessarily formed part of the examination, under Article 107(1) TFEU, of tax measures granted to group companies and that the arm’s length principle was a general principle of equal treatment in taxation, which fell within the application of Article 107 TFEU.151It is therefore apparent from the contested decision that the arm’s length principle, as described by the Commission, is a tool which it used, correctly, in the context of the examination carried out under Article 107(1) TFEU.152It is true that, at the hearing, the Commission stated that the arm’s length principle as described in the contested decision did not fall within EU law, or international law, but that it was inherent in the ordinary system of taxation as provided for by national law. Thus, according to the Commission, if a Member State chooses, in the context of its national tax system, the approach of the separate legal entity, according to which tax law is concerned with legal entities, and not with economic entities, the arm’s length principle is necessarily a corollary of that approach, which is binding in the Member State concerned, independently of whether the arm’s length principle has, expressly or impliedly, been incorporated into national law.153In that regard, the Grand Duchy of Luxembourg and FFT indicated at the hearing that, by those assertions, the Commission seemed to be changing its stance on the arm’s length principle as described in the contested decision. However, on the assumption that the interpretation put forward by the Grand Duchy of Luxembourg and FFT is found to be correct, it must be stated, in any event, that the Commission cannot change the legal basis of the arm’s length principle, as set out in the contested decision, at the hearing stage (see, to that effect, judgment of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 116). In all events, it must be noted that the clarification provided at the hearing does not call into question the finding in paragraph 151 above that it is apparent from the contested decision that the arm’s length principle is being applied in the context of the examination under Article 107(1) TFEU. It is, moreover, apparent from all of the written submissions of the Grand Duchy of Luxembourg and FFT that they understood the contested decision to mean that the arm’s length principle as described by the Commission in the contested decision was being applied in the context of the examination of a national tax measure under Article 107(1) TFEU.154The Court must therefore reject FFT’s argument that the Commission did not provide any legal basis for the arm’s length principle as described in the contested decision.155Second, in so far as FFT maintains that the Commission failed to define the content of the arm’s length principle as described in the contested decision, suffice it to note that it is apparent from the contested decision that that principle is a tool for checking that intra-group transactions are remunerated as though they had been negotiated between independent undertakings (see paragraph 151 above). That argument must therefore be rejected.156Third, the Grand Duchy of Luxembourg criticises the Commission, in essence, for having examined the tax ruling at issue in the light of the arm’s length principle as described in the contested decision even though that is a criterion that is extraneous to Luxembourg tax law. It maintains that the arm’s length principle as described by the Commission in the contested decision would enable the Commission to prescribe methodological standards for determining taxable profit which do not appear in national legislation, and that that would result in the harmonisation in disguise of direct taxation, contrary to the fiscal autonomy of the Member States. That argument must, however, be rejected.157Suffice it to note in that regard that, as has been stated in paragraphs 138 and 141 above, although ‘normal’ taxation is defined by the national tax rules and the actual existence of an advantage must be demonstrated by reference thereto, the fact remains that if those national rules provide that integrated companies are to be taxed on the same terms as stand-alone companies, Article 107(1) TFEU allows the Commission to check whether the pricing of intra-group transactions, accepted by the national authorities for determining the taxable base of an integrated undertaking, corresponds to prices that would have been charged at arm’s length.158Consequently, when the Commission examines whether the method validated by a national tax measure leads to an outcome that has been achieved in a manner consistent with the arm’s length principle as defined in paragraph 151 above, it is not exceeding its powers.159In addition, to the extent that the Grand Duchy of Luxembourg and FFT maintain that the Commission made an assessment in the light of the arm’s length principle without considering the existence of an advantage having regard to national tax law, suffice it to note that it is clear from recitals 231, 266, 276, 291, 301 and 339 of the contested decision that the Commission examined whether the tax ruling at issue resulted in a reduction of FFT’s tax burden as compared with the tax that it would otherwise have had to pay under Luxembourg rules of taxation. It did therefore examine whether the tax ruling at issue had resulted in a lowering of the tax burden under national legislation. While the Commission did, in that context, carry out its examination in the light of the arm’s length principle, it used that principle, as has been noted in paragraph 151 above, as a tool enabling it to verify whether FFT’s transfer pricing had been artificially lowered in comparison with a situation in which prices would have been established under market conditions. Consequently, the argument that the Commission substituted an extraneous rule for Luxembourg rules of tax law must be rejected.160Fourth, FFT and Ireland submit, in essence, that the Commission wrongly asserted, in the contested decision, that there was a general principle of equal treatment in taxation.161It is true that the Commission indicated, in recital 228 of the contested decision, that the arm’s length principle was a general principle of equal treatment in taxation, which fell within the scope of Article 107(1) TFEU. However, that wording must not be taken out of context and cannot be interpreted as meaning that the Commission asserted that there was a general principle of equal treatment in relation to tax inherent in Article 107(1) TFEU, which would give that article too broad a scope.162In any event, it is implicitly but necessarily evident from recitals 222 to 231 of the contested decision, and in particular from recitals 226 and 229 of that decision, that the arm’s length principle as described by the Commission in the contested decision was perceived by the Commission only as a tool enabling it to check that intra-group transactions are remunerated as though they had been negotiated between independent companies. The argument of FFT and Ireland does not alter the finding in paragraph 146 above that the Commission was entitled to examine, in the context of its analysis under Article 107(1) TFEU, whether intra-group transactions were remunerated as though they had been negotiated under market conditions.163Accordingly, the Court must reject the argument of FFT and Ireland in that respect.164Fifth, FFT claims that the Commission deviated in the contested decision from the conception of the arm’s length principle that it had used in the opening decision. It submits, in that regard, that the Commission had referred, in recitals 14 and 62 of the opening decision, to Article 9 of the OECD Model Tax Convention.165It must be pointed out in that regard that FFT does not draw any legal inference from its claim that the arm’s length principle as described by the Commission in the contested decision differs from the arm’s length principle to which the Commission referred in the opening decision. Consequently, that argument must be rejected as ineffective.166In any event, that argument must also be rejected as unfounded.167First, although the Commission referred, in recital 14 of the opening decision, to the ‘“arm’s length principle” as set [out] in Article 9 of the OECD Model Tax Convention’, that reference appeared in the section entitled ‘Introduction to transfer pricing rulings’. It is not evident from recital 14 of the opening decision, invoked by FFT, that the Commission based its provisional assessment on Article 9 of the OECD Model Tax Convention. Likewise, although the Commission referred, in recital 62 of the opening decision, invoked by FFT, to the OECD Guidelines, the Commission presents them only as a ‘reference document’ or as ‘appropriate guidance’. This presentation is no different from the Commission’s presentation of those guidelines in the contested decision.168Second, it must be noted that it is apparent from recitals 58 and 59 of the opening decision that, even at that stage of the procedure, the Commission explained its stance that it can apply the arm’s length principle, in the context of its review under Article 107 TFEU, for the purpose of examining whether a tax measure confers a selective advantage on an integrated undertaking.169In that regard, it must be noted that, in recital 61 of the opening decision, the Commission explained that a method of taxation applied to transfer pricing that does not comply with the arm’s length principle and leads to a lowering of the taxable base of its beneficiary would confer an advantage. It based that statement on the judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416), as it subsequently did in the contested decision.170Sixth, the Court must reject FFT’s argument that the Commission’s position on the arm’s length principle departed from its previous practice in taking decisions, in so far as that practice in other cases cannot affect the validity of a contested decision, which can be assessed only in the light of the objective rules of the FEU Treaty (see, to that effect, judgment of 20 May 2010, Todaro Nunziatina & C., C‑138/09, EU:C:2010:291, paragraph 21).171Seventh, inasmuch as FFT indicates that the Commission was very opaque with regard to the concept of the arm’s length principle adopted by the Commission, refusing to provide FFT with the slides the Commission had used at a conference on State aid in Brussels, that argument must be rejected as ineffective. The Commission’s position concerning the arm’s length principle can be seen from recitals 219 to 231 of the contested decision, and therefore the fact that it failed to provide slides after a conference has no bearing on the lawfulness of the contested decision.172Eighth, FFT submits that the arm’s length principle as described by the Commission in the contested decision is distinct from that used by the OECD. It submits that the OECD allows for ‘appropriate adjustments’, such as shareholdings in its subsidiaries not being taken into account in calculating the remuneration of FFT’s functions. According to FFT, that is, moreover, explained in the report by an economic consultancy company that is annexed to the application. That argument must be rejected as, in part, inadmissible and, in part, unfounded.173As regards the assertion that the arm’s length principle is distinct from that used by the OECD, FFT does not advance any specific argument, with the exception of that relating to the taking into account of its shareholdings. In so far as FFT claims that the Commission disregarded paragraph 2.74 of the OECD Guidelines, according to which appropriate adjustments must be made in applying the TNMM, it must be noted not only that the Commission, as has been stated in paragraph 147 above, is not formally bound by those guidelines but that, contrary to FFT’s contention, the Commission did not rule out the possibility of making ‘appropriate adjustments’. The Commission merely found that, in the present case, the exclusion of FFT’s shareholdings in FFNA and FFC was not justified, an issue which will, moreover, be examined in paragraphs 273 to 278 below.174Furthermore, in so far as FFT refers to the report of an economic consultancy company in which an expert put forward arguments to show that the Commission should not have taken into account FFT’s shareholdings in the subsidiaries, the reference to that line of argument is, in accordance with settled case-law, inadmissible, as it does not appear in the actual body of the application. It should be borne in mind that, according to the case-law, although the text of the application may be supported and supplemented in regard to specific points by references to particular passages in documents appended thereto, a general reference to other documents cannot compensate for the lack of essential information in the application itself, even if those documents are attached to the application, since the annexes have a purely evidential and instrumental function (see judgment of 30 January 2007, France Télécom v Commission, T‑340/03, EU:T:2007:22, paragraph 167 and the case-law cited).175Moreover, and in any event, even on the assumption that the Commission failed, wrongly, to make the ‘appropriate adjustments’ to which FFT refers, it should be noted that that would not alter the finding that FFT has not put forward any argument that would serve to explain why the arm’s length principle used by the Commission is allegedly incorrect. The fact that ‘appropriate adjustments’ are provided for by the OECD Guidelines to take account of each factual situation, and that the circumstances giving rise to such adjustments may exist in the present case, does not call into question the finding that, in essence, the arm’s length principle requires integrated undertakings to charge transfer prices that reflect those which would be charged under conditions of competition, which corresponds to the examination undertaken by the Commission in the contested decision.176Ninth, the Court must reject the argument of the Grand Duchy of Luxembourg that the arm’s length principle as described by the Commission in the contested decision is subjective and arbitrary. First, it is sufficient to note that the examination in the light of the arm’s length principle consists, as is evident from recital 231 of the contested decision, in examining whether the methodology for the determination of transfer pricing accepted in the tax ruling at issue can result in a reliable approximation of a market-based outcome. Second, the Commission refers broadly, for the purposes of its analysis, to the OECD Guidelines, about which there is a broad consensus. The Grand Duchy of Luxembourg and FFT do not, moreover, dispute that last point.177Tenth, FFT submits that the Commission failed to explain how it had derived the arm’s length principle as described in the contested decision, or the content of that principle, contrary to its obligation to state reasons, as laid down in Article 296 TFEU.178In that regard, it should be borne in mind that, according to settled case-law, the statement of reasons required by Article 296(2) TFEU must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296(2) TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 15 July 2004, Spain v Commission, C‑501/00, EU:C:2004:438, paragraph 73 and the case-law cited).179In the present case, it has already been found, in paragraphs 149 to 151 and 154 above, that, contrary to FFT’s submission, the Commission specified the legal basis and the content of the arm’s length principle in recitals 219 to 231 of the contested decision. It must therefore be held that, so far as those issues are concerned, the reasons given for the contested decision are sufficient. As has been stated in paragraph 153 above, it is, moreover, apparent from all of the written submissions of the Grand Duchy of Luxembourg and FFT that they understood the contested decision to mean that the arm’s length principle as described by the Commission in that decision was being applied in the context of the examination of a national tax measure under Article 107(1) TFEU.180Eleventh, in so far as FFT claims that the arm’s length principle as described by the Commission in the contested decision in recitals 219 to 231 and, specifically, in recital 228 of the contested decision introduces legal uncertainty and confusion so that it is difficult to understand whether a tax ruling based on transfer pricing will infringe the law on State aid or not, that argument must be rejected.181According to the case-law, the principle of legal certainty, which is a general principle of EU law, requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by EU law remain foreseeable (judgment of 15 February 1996, Duff and Others v Commission, C‑63/93, EU:C:1996:51, paragraph 20).182It must be borne in mind that the concept of State aid is defined on the basis of the effects of the measure on the competitive position of its beneficiary (see, to that effect, judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 87). It follows from this that Article 107 TFEU prohibits any aid measure, irrespective of its form or the legislative means used to grant such aid (see, to that effect, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 79).183Moreover, it should be noted that Luxembourg tax law provides that integrated undertakings and stand-alone undertakings are subject, under the same conditions, to corporate income tax. In those circumstances, it was foreseeable that the Commission would be able to verify, in the examination provided for by Article 107 TFEU, whether the methodology for determining transfer pricing accepted in the tax ruling deviated from pricing that would have been set under market conditions, in order to examine whether that tax ruling conferred an advantage on its beneficiary.184In any event, in so far as FFT merely asserts that, in its view, the wording of recital 228 of the contested decision lacks clarity and generates legal uncertainty, it is sufficient to observe that the contested decision must be read as a whole. As is apparent from paragraphs 130 to 132 above, the Commission specified, in the contested decision, the definition, scope and legal nature of the arm’s length principle. In addition, as has been stated in paragraph 115 above, it does not follow from the contested decision that the Commission found that every tax ruling necessarily constitutes State aid within the meaning of Article 107 TFEU. Provided that it does not grant any selective advantage, notably in that it does not result in a reduction of the tax burden of its beneficiary, such a tax ruling does not constitute State aid within the meaning of Article 107 TFEU and is not subject to a notification obligation under Article 2 of Regulation 2015/1589.185Twelfth, in so far as FFT maintains that the Commission breached the principle of protection of legitimate expectations since no one foresaw, or could have foreseen, that the Commission would apply an arm’s length principle other than that of the OECD, this complaint must be rejected.186Suffice it to recall that, according to settled case-law, any economic operator whom an institution has, by giving him precise assurances, caused to entertain justified expectations may rely on the principle of protection of legitimate expectations (see judgment of 24 October 2013, Kone and Others v Commission, C‑510/11 P, not published, EU:C:2013:696, paragraph 76 and the case-law cited). In the present case, however, FFT has neither established nor even claimed in what respect it might have received precise assurances from the Commission that the tax ruling at issue would not fulfil the requirements for aid within the meaning of Article 107 TFEU. Furthermore, the mere fact that, in FFT’s view, the Commission expressly based certain earlier State aid decisions on the arm’s length principle laid down in Article 9 of the OECD Model Tax Convention does not amount to precise assurances within the meaning of the case-law set out above.187In those circumstances, all the complaints put forward by the Grand Duchy of Luxembourg and FFT concerning the arm’s length principle as described by the Commission in the contested decision must be rejected as, in part, unfounded and, in part, ineffective. (b) Plea regarding an incorrect method of calculation in the determination of FFT’s remuneration 188The Grand Duchy of Luxembourg claims, in essence, that the tax ruling at issue did not confer an advantage on FFT, as it did not involve a reduction of the amount of tax paid by FFT. In that context, the Grand Duchy of Luxembourg disputes the existence of alleged errors in the methodology for calculating FFT’s remuneration that were allegedly validated by the Luxembourg tax authorities, and to which the Commission referred in the contested decision.189The Commission contests the arguments of the Grand Duchy of Luxembourg. (1) Preliminary observations 190By the second part of its first plea, the Grand Duchy of Luxembourg states that the Commission failed to demonstrate that the methodology validated in the tax ruling at issue did not comply with the arm’s length principle, whether that is the arm’s length principle incorporated into Luxembourg national law, the OECD Guidelines or the arm’s length principle as described by the Commission in the contested decision.191In essence, the Grand Duchy of Luxembourg disputes the five errors in the methodology for calculating FFT’s remuneration that were identified by the Commission.192First of all, the Grand Duchy of Luxembourg challenges, in essence, the Commission’s assessment that FFT’s capital should not have been segmented, as a single rate should have been applied to FFT’s accounting equity in its entirety (‘the first error’).193Next, the Grand Duchy of Luxembourg submits that, contrary to the Commission’s assertion in the contested decision, it did not make an error by endorsing the use of hypothetical regulatory capital (‘the second error’) or in calculating the amount of that hypothetical regulatory capital (‘the third error’). Further, it denies that it made an error in accepting the deduction of FFT’s shareholdings in FFC and FFNA (‘the fourth error’). The second, third and fourth errors are connected to the first error, relating to the segmentation of the capital.194Last, the Grand Duchy of Luxembourg takes issue with a fifth error identified by the Commission, concerning the calculation of the rate of return of 6.05%, applied to the hypothetical regulatory capital (‘the fifth error’).195Although the five errors contested by the Grand Duchy of Luxembourg were not clearly identified as such in the contested decision, in particular the first error, relating to the segmentation of the capital, it must be noted that those five errors are apparent, in essence, from the text of that decision.196It will be recalled that the Commission found, in recitals 248 to 301 of the contested decision (Sections 7.2.2.5 to 7.2.2.9 of that decision), that the methodology for determining the remuneration for FFT’s financing activity, endorsed by the tax ruling at issue, contained several errors in the methodological choices and in the choices of parameters and adjustments. In that regard, it must be noted that the errors identified concern, on the one hand, the amount of capital to be remunerated, namely the profit level indicator, and, on the other, the rate of return to be applied.197As regards, first, the amount of capital to be remunerated, the Commission considered, in essence, that the decision to segment the capital into three categories to be subject to different rates of return is incorrect, which corresponds to the first error. As can be seen, in particular, from recitals 265, 278 and 287 of the contested decision, the Commission found that a single rate of return should have been applied to the accounting equity in its entirety. The Commission thus stated, in recital 265 of the contested decision, that using accounting equity would have obviated the need to calculate a separate ‘functions remuneration’.198The first error underlies the second, third and fourth errors, each of which is addressed in a clearly identified section of the contested decision. First of all, in recitals 249 to 266 of the contested decision (Section 7.2.2.6 of that decision), the Commission found that the use of hypothetical regulatory capital as a profit level indicator was incorrect, which corresponds to the second error. Next, in recitals 267 to 276 of the contested decision (Section 7.2.2.7), the Commission stated that, even if the hypothetical regulatory capital could be used, the application by analogy of the Basel II framework, for the purpose of determining the level of FFT’s hypothetical regulatory capital, was incorrect, which corresponds to the third error. Last, in recitals 277 to 291 of the contested decision (Section 7.2.2.8), the Commission found that the deduction of the FFNA and FFC shareholdings was incorrect, which corresponds to the fourth error.199As regards, second, the rate of return, the Commission considered, in recitals 292 to 301 of the contested decision (Section 7.2.2.9), that the level of the rate of return on capital to be remunerated, calculated as 6.05%, using the CAPM, was incorrect, which corresponds to the fifth error.200The Court will therefore examine in turn each of the five errors identified by the Commission and disputed by the Grand Duchy of Luxembourg, as set out in paragraphs 196 to 199 above.201In that regard, the Court notes that, in connection with the second part of the first plea in Case T‑755/15, the Grand Duchy of Luxembourg and the Commission disagree as to the scope of the review which the Commission was entitled to carry out in respect of the methodology used by the Grand Duchy of Luxembourg to calculate FFT’s remuneration in the tax ruling at issue, given the inherent uncertainties in the evaluation of transfer pricing and the fact that this represented an intrusion into the national authorities’ freedom to act.202It must be borne in mind that, in its review of State aid, the Commission must, in principle, provide proof in the contested decision of the existence of the aid (see, to that effect, judgments of 12 September 2007, Olympiaki Aeroporia Ypiresies v Commission, T‑68/03, EU:T:2007:253, paragraph 34, and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 95). In that context, the Commission is required to conduct a diligent and impartial examination of the measures at issue, so that it has at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 63).203By contrast, it is for the Member State which has made a distinction between undertakings to show that it is actually justified by the nature and the general scheme of the system in question. The concept of State aid does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective where that differentiation arises from the nature or the general scheme of the system of which they form part (see, to that effect, judgment of 21 June 2012, BNP Paribas and BNL v Commission, C‑452/10 P, EU:C:2012:366, paragraphs 120 and 121 and the case-law cited).204In the light of the above, it was for the Commission to show, in the contested decision, that the requirements for a finding of State aid, within the meaning of Article 107(1) TFEU, were met. In that regard, it must be held that, while it is common ground that the Member State has a margin of appreciation in the approval of transfer pricing, that margin of appreciation cannot lead to the Commission being deprived of its power to check that the transfer pricing in question does not lead to the grant of a selective advantage within the meaning of Article 107(1) TFEU. In that context, the Commission must take into account the fact that the arm’s length principle allows it to verify whether the transfer pricing accepted by a Member State corresponds to a reliable approximation of a market-based outcome and whether any variation that may be identified in the course of that examination does not go beyond the inaccuracies inherent in the methodology used to obtain that approximation.205The Grand Duchy of Luxembourg and the Commission also disagree as to the extent to which the Court can review the Commission’s assessments in relation to the calculation of FFT’s taxable profit. According to the Commission, the Court should undertake a limited review of those economic findings, which are complex. In that regard, it should be noted that, as is clear from Article 263 TFEU, the object of an action for annulment is to review the legality of the acts adopted by the EU institutions named therein. Consequently, the analysis of the pleas in law raised in such an action has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 84).206In the field of State aid, it must be recalled that State aid, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Courts of the European Union must, in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (judgments of 4 September 2014, SNCM and France v Corsica Ferries France, C‑533/12 P and C‑536/12 P, EU:C:2014:2142, paragraph 15, and of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 87).207As to whether a method for determining transfer pricing of an integrated company complies with the arm’s length principle, it should be borne in mind that, as has already been indicated above, when using that tool in carrying out its assessment under Article 107(1) TFEU, the Commission must take into account its approximate nature. The purpose of the Court’s review is therefore to verify whether the errors identified in the contested decision, and on the basis of which the Commission found there to be an advantage, go beyond the inaccuracies inherent in the application of a method designed to obtain a reliable approximation of a market-based outcome.208The various errors identified by the Commission must be examined in the light of these matters. (2) The first error, relating to the failure to take into consideration the whole of FFT’s equity 209The Grand Duchy of Luxembourg submits that the Commission wrongly considered it appropriate to take into consideration the whole of the accounting equity in order to apply a uniform return of 10% to FFT, irrespective of its various activities. It maintains that the methodology accepted by the tax ruling at issue applies the principle of ‘functional analysis’ in a manner that is consistent with Luxembourg rules and OECD rules, to take account of the mixed nature of FFT’s activities, taking into consideration the assets used and risks assumed. According to the Grand Duchy of Luxembourg, it is therefore appropriate to isolate, for the purpose of determining FFT’s remuneration, the assets or the capital connected with the operation of relevant transactions or functions, so that only operating assets and capital employed are to be taken into account, in accordance with the OECD Guidelines. It submits that those requirements are transposed by the Circular, in so far as, first, the Circular excludes holding functions from its scope; second, it reproduces the terminology of the OECD Guidelines; and, last, it identifies the capital covering the risks related to financing activities.210 (i) Observations on the tax ruling at issue 211First, as is apparent from the tax ruling at issue and as was stated in the contested decision (see in particular recital 70 of that decision), the tax ruling at issue relates to the determination of FFT’s remuneration for its intra-group financing and treasury activities. FFT’s tax liability in Luxembourg is then calculated by applying the standard corporate tax rate applicable in Luxembourg to the net profits earned by FFT on the basis of the remuneration accepted by the tax ruling at issue.212In that regard, first of all, it must be recalled that the tax ruling at issue determines FFT’s remuneration for transactions falling within its intra-group financing and treasury activities. It is common ground that that type of transaction is subject to tax under the Tax Code.213Next, the parties do not dispute that, since the transactions that constitute FFT’s intra-group financing and treasury activities are intra-group transactions, the tax ruling at issue concerns the determination of transfer pricing for those transactions at a level corresponding to the level that would have been charged if that type of transaction had been concluded between stand-alone companies, subject to market conditions. Nor do they dispute that that tax ruling allows FFT to determine its taxable base in Luxembourg.214Last, in the contested decision, the Commission did not take issue with the choice, endorsed by the tax ruling at issue, of the TNMM as the method for determining the appropriate level of transfer pricing for transactions that constitute FFT’s financing and treasury activities. In that regard, it is common ground that the correct application of the TNMM, in this instance, consists of an analysis of the return on capital.215The parties disagree therefore, in essence, only as to the level of FFT’s remuneration for transactions falling within its intra-group financing and treasury activities.216Second, as is apparent from the transfer pricing report, and as the Commission found in Table 2 of the contested decision and in recitals 61, 62, 65 and 70 of that decision, for the purposes of calculating the return on capital, the report segmented FFT’s equity, the total amount of which is EUR 287477000, into three categories of funds:first, the hypothetical regulatory capital, within the meaning of the Basel II framework, to remunerate the ‘risks’, that is EUR 28523000, to which a rate of return of 6.05% is applied;second, the equity used to offset the shareholdings in FFNA and FFC, and linked to FFT’s ‘holding’ activities, that is EUR 165244000, on which no return was applied;last, the equity used to perform the ‘functions’, that is EUR 93710000, to which a rate of return of 0.87% is applied. This corresponds to the total accounting equity, minus the hypothetical regulatory capital and the amount of FFT’s shareholdings in FFNA and FFC.217In that respect, the parties do not dispute that the segmentation of the capital limits the capital base taken into account for the purpose of calculating that return. They disagree, in essence, on the principle itself, in the context of the TNMM, of assigning capital to specific functions that are subject to different rates of return. The Grand Duchy of Luxembourg and FFT take the view that that segmentation of the capital is not only consistent with the OECD Guidelines and the Circular but is also appropriate in view of the different activities of FFT. According to the Commission, however, such segmentation is wrong.218The Court must therefore consider whether the Commission was right to find that the segmentation of the capital, to which different rates of return are applied, did not enable a reliable approximation of an arm’s length outcome to be obtained, and thus contributed to a lowering of FFT’s tax burden. (ii) The possibility in the OECD Guidelines and in the Circular of segmenting capital 219As the parties recognised, in essence, at the hearing, the Circular and the OECD Guidelines, to which the Circular refers, neither authorise nor prohibit the possibility of segmenting the capital of an integrated company by reference to its various activities.220In any event, none of the arguments advanced by the Grand Duchy of Luxembourg in its written submissions would support a finding that the OECD Guidelines or the Circular permitted segmentation of the capital for the purposes of obtaining an arm’s length outcome.221First, the Grand Duchy of Luxembourg maintains that the application of a uniform rate of return to the whole of FFT’s equity is contrary to the recommendations in the OECD Guidelines and in particular the requirement to carry out a ‘functional’ analysis of the activity of the undertaking concerned, consisting in distinguishing the various activities of an undertaking and identifying the assets and risks associated with those activities. In that regard, it should be noted that, contrary to what is claimed by the Grand Duchy of Luxembourg, it cannot be concluded from point D.1.2.2 of the OECD Guidelines, on ‘Functional analysis’, that it was correct in this case to segment FFT’s capital by reference to its various activities.222Indeed, it is evident from paragraph 1.42 of the OECD Guidelines that it is the assets associated with each activity, and not the capital, that may be isolated and related to specific risks or activities. While, as the Grand Duchy of Luxembourg submits, both the profitability of the capital and that of the assets can be used as an indicator for the application of the TNMM, that does not mean that capital is to be treated in the same way as operating assets. Unlike operating assets, capital is fungible and is exposed to risk irrespective of the activity thereby served.223Second, in so far as the Grand Duchy of Luxembourg refers to paragraphs 2.77 and 2.78 of the OECD Guidelines, suffice it to note in that regard, as does the Commission, that, while it is apparent that, in essence, only those items that are related to a transaction must be taken into account, neither paragraph provides that only capital that is related to taxable activities should be taken into consideration. As the Commission correctly contends, capital is, by nature, fungible.224Third, in so far as the Grand Duchy of Luxembourg submits that it is possible, under Luxembourg law, to relate certain capital to certain functions, it must be noted that, as has been stated in paragraphs 212 to 215 above, the tax ruling at issue concerns only the determination of FFT’s remuneration for transactions falling within its intra-group financing and treasury activities, at arm’s length level. As is evident from paragraphs 137 to 139 above, the Commission was in a position to review, under Article 107(1) TFEU, whether the level of that remuneration was lower than it would have been on an arm’s length basis and, therefore, whether the tax ruling at issue had conferred an advantage on FFT. The functional analysis of the controlled transaction makes it possible in particular to choose the part tested, the most appropriate method of transfer pricing and the financial indicator to be tested, as the case may be, or to identify the key comparability factors to be taken into account.225By contrast, the tax ruling at issue does not concern the question whether, as a result of a functional analysis of FFT, certain parts of FFT’s capital are not subject to tax under the Luxembourg Tax Code.226Moreover, the Grand Duchy of Luxembourg bases its claim on a legal article on Luxembourg taxation and on a Grand-Ducal regulation. Nevertheless, it must be noted that, assuming that those items, relating to Luxembourg law, are relevant for the purpose of examining in the context of the application of Article 107(1) TFEU whether FFT’s remuneration was lower than it would have been on an arm’s length basis, they do not demonstrate that FFT’s capital could be segmented by reference to its various activities for the purposes of calculating the return on capital.227First, in so far as the Grand Duchy of Luxembourg refers to the règlement grand-ducal du 16 juillet 1987, modifiant le règlement grand-ducal du 23 juillet 1983 portant exécution de l’article 1er de la loi du 23 juillet 1983 modifiant certaines dispositions de la loi du 4 décembre 1967 concernant l’impôt sur le revenu (Grand-Ducal Regulation of 16 July 1987 amending the Grand-Ducal Regulation of 23 July 1983 implementing Article 1 of the Law of 23 July 1983 amending certain provisions of the Law of 4 December 1967 on income tax) (published in Mémorial A No 65 of 6 August 1987, p. 1540), it should be pointed out that this provides that ‘it shall be accepted that the assets are financed by the equity in the following order: tangible and intangible fixed assets, financial fixed assets, available and realisable securities’. It must therefore be noted that that Grand-Ducal regulation does not, contrary to what is claimed by the Grand Duchy of Luxembourg, provide that a company’s capital may be assigned to particular assets of a company.228Second, in so far as the Grand Duchy of Luxembourg relies on an extract from a legal journal on Luxembourg taxation, according to which, ‘on the basis of purely economic considerations, it is accepted in the German legal literature that long-term resources are assigned primarily to the financing of long-term assets’ and that ‘accordingly, it may be concluded that the equity finances fixed assets first’, it must be noted that that element of the legal literature is not sufficient to support the position of the Grand Duchy of Luxembourg that a company’s capital can be segmented, in the context of the application of the TNMM, so as to be assigned to specific assets or activities. Although that extract may be understood to mean that the shareholdings of a company would be the first to be financed by the equity, the answer to the question as to whether that is relevant to the application of the TNMM and, specifically, for the purposes of determining a return on capital is not clear from the text of that extract. Furthermore, the extract is presented without a precise indication of the context in which it appears and is not corroborated by other elements of the legal literature, so that its evidential value is extremely limited.229Consequently, it must be concluded that the segmentation of the capital of an integrated company by reference to its various activities is neither expressly authorised nor prohibited. In those circumstances, the Court must ascertain whether the segmentation in the tax ruling at issue is appropriate, given the particular circumstances of the present case. (iii) Whether the segmentation of the capital is appropriate 230The parties disagree as to whether the Commission erred in finding that the segmentation of the capital was inappropriate in this case.231In the first place, it must be noted that, in the present case, the segmentation of FFT’s capital is not justified by the need to differentiate the remuneration for the various functions of FFT.232Contrary to what is maintained in essence by the Grand Duchy of Luxembourg, the segmentation of capital, accepted in the tax ruling at issue, does not reflect the various functions or activities identified in the transfer pricing report, in the context of the ‘functional’ analysis and in respect of which the level of remuneration is validated by the tax ruling at issue.233As has been found in paragraph 211 above, the methodology endorsed in the tax ruling at issue does not relate to the determination of the remuneration for FFT’s holding activities, but only the remuneration for its intra-group financing and treasury functions.234In that regard, it must be noted that the transfer pricing report [confidential].235The three categories of capital validated by the tax ruling at issue relate, respectively, to risk remuneration, remuneration for holding activities and functions remuneration. Furthermore, as regards the last category, it must be pointed out that the transfer pricing report makes clear that [confidential]. This segment therefore corresponds to all the activities of FFT that are covered by the tax ruling at issue.236It therefore follows from these findings that, contrary to what is claimed by the Grand Duchy of Luxembourg, the segmentation of capital is not likely to satisfy the requirement of differentiation of FFT’s functions.237In the second place, it must be held that the Commission did not err in finding that the segmentation of capital as accepted in the tax ruling at issue was inappropriate, since it is based on an entirely artificial analysis of the use of FFT’s equity.238First, it must be noted that, as the Commission stated, in essence, in recital 282 of the contested decision, the segmentation of FFT’s equity was not appropriate, since such funds are, by nature, fungible. In so far as all of FFT’s equity is exposed to risk and is available to support FFT’s solvency, it should be remunerated in full and it is not necessary to segment it.239In that regard, even if it is true that part of FFT’s capital is assigned to the shareholdings in FFNA and FFC, which would already have been taxed and would therefore no longer be taxable, that fact has no bearing at all on the finding that that part of the capital is also exposed to risk and should therefore be covered by risk remuneration.240As is apparent from recitals 247 and 286 of the contested decision, by opting for the segmentation of the capital, instead of using the whole of the capital as a base from which the return on capital is calculated, the Grand Duchy of Luxembourg overlooks the fact that the full capital is necessary for the provision of the financing functions and to absorb any losses linked to the financing activities. As the Commission observed at the hearing, if the leverage ratio between capital and lending went from [confidential]% to 1.3 or 1.5%, it would be lower than would be acceptable for a credit institution.241In addition, it must be pointed out that, as the Commission found in recital 247 of the contested decision and is not disputed by the Grand Duchy of Luxembourg, FFT plays a maturity transformation and financial intermediation role, since it borrows on the markets to fund the group’s financing needs. As is apparent from recital 43 of the contested decision, FFT funding comes from instruments such as bond issuance, bank term loans, committed and uncommitted credit lines. It must therefore be noted that, as the Grand Duchy of Luxembourg moreover acknowledged in its answers to questions put at the hearing, when it borrows on the market in order to fund its activities, it is FFT’s total capital that is taken into consideration by the market operators from which it borrows. The segmentation of capital by reference to the activities of FFT takes no account of the fact that its taxable profits will vary according to its borrowing costs, which depend, in particular, on the size of its capital.242Second, and in any event, the three segments, as endorsed in the tax ruling at issue, are artificial.243First of all, as regards the first segment, namely equity used to bear risk, it is sufficient to recall that, as has been stated in paragraph 238 above, all of FFT’s capital is exposed to risk.244Next, as regards the second segment, namely equity used for the shareholdings in FFNA and FFC, it is sufficient to recall that, in so far as capital is fungible, the share of that equity that corresponds to the amount of the shareholdings in FFNA and FFC cannot be separated from the rest of FFT’s equity. Contrary to what is claimed both by the Grand Duchy of Luxembourg and by FFT in its observations at the hearing, even though the shareholdings in FFNA and FFC would not give rise to any taxable dividend, FFNA’s and FFC’s dividends having been taxed before being distributed to FFT as holding company, the fact remains that, in the event of FFT’s insolvency, the equity linked to the holding of those shares, like the rest of the equity, would be used to cover FFT’s debts. In those circumstances, FFT’s capital, whether or not it can be linked to the shares it holds, is in any event exposed to risk and must be taken into consideration in the calculation of FFT’s remuneration.245In addition, in an intra-group context, the shares which a parent company holds in its subsidiaries might in fact be designed as a form of capital injection as an alternative to the grant of an intra-group loan. Thus, the distinction between the second segment and the first — which corresponds, according to the transfer pricing report, to equity exposed to risks, notably credit and counterparty risks (recital 58 of the contested decision) — is, for that reason also, artificial in so far as both could ultimately represent an intra-group financing operation, as the Grand Duchy of Luxembourg essentially confirmed during the hearing.246Last, as regards the third segment, namely equity used to perform the functions, it must be noted, as the Commission pointed out in recital 277 of the contested decision, that this corresponds to the remaining capital, obtained after deducting the first two segments from the total capital. It follows from this that, given its residual nature, this segment does not in fact correspond to any particular function or activity. In addition, as the Commission correctly stated in recital 265 of the contested decision, that segment does not correspond to any customary capital component used in the calculation of return requirements. Furthermore, [confidential]. Those functions correspond to the functions in respect of which FFT’s remuneration, as accepted by the tax ruling at issue, is calculated. Consequently, it must be held that this segmentation is necessarily inappropriate.247It therefore follows from these findings that the Commission did not err in concluding, in essence, that the segmentation of capital was erroneous and that the whole of FFT’s capital had to be taken into account for the purposes of the risk remuneration.248The other arguments of the Grand Duchy of Luxembourg are not convincing.249In so far as the Grand Duchy of Luxembourg claims that FFT would have had to pay the same amount of tax if its activities had been divided between three separate entities, that argument cannot succeed.250First, as has been noted in paragraph 235 above, the segmentation of the capital does not correspond to the different functions performed by FFT. Second, as has been noted in paragraph 241 above, all of FFT’s capital is taken into consideration by the market operators from which it borrows and its borrowing capacity necessarily affects its financing activities and its profits. It cannot therefore be concluded that FFT would have to pay a single rate of tax if its capital were held by three separate companies in order to carry out activities with a different return. In addition, as has been established in paragraph 240 above, the capital linked to FFT’s financing activities would be insufficient in view of the risks run if they were to be taken into consideration. In any event, that argument must be rejected since it relates to a hypothetical situation that is outwith the subject matter of the present case.251In the light of all of the foregoing, it must be held that the Commission correctly found that FFT’s capital should have been taken into account in its entirety for the purposes of calculating the remuneration for its intra-group financing and treasury activities. (3) The second error, relating to the taking into consideration of the hypothetical regulatory capital 252The Grand Duchy of Luxembourg disputes, in essence, the Commission’s assessment that it was wrong to take account of the hypothetical regulatory capital for remuneration of the risks linked to FFT’s intra-group financing and treasury activities. The Grand Duchy of Luxembourg disputes the Commission’s assessment that there is no economic rationale in applying a return on capital to a base made up of FFT’s regulatory capital when the TNMM requires the capital assigned to the various functions of FFT to be evaluated, and adds that the Basel II framework and the CAPM are international standards.253The Commission objects to those arguments on the ground that FFT’s calculation of the taxable base on the basis of the hypothetical regulatory capital is incorrect and inconsistent.254In the first place, it must be recalled that, as the Commission observed in recitals 254 and 262 of the contested decision, and which is not disputed by the Grand Duchy of Luxembourg, the Basel II framework defines required regulatory capital as a proportion of assets held by a bank or financial institution, weighted by the underlying risk of each such asset. The regulatory capital thus constitutes the estimate, by the regulator, of a minimum level of capitalisation that a bank or other financial institution must maintain and does not constitute a right to the profits of the entity concerned, or to the remuneration of the risks borne by that entity.255In the second place, as regards the Commission’s assessment, principally, that choosing to take FFT’s hypothetical regulatory capital into consideration — a choice endorsed by the tax ruling at issue — is wrong, it should be noted, as the Commission submits, that, unlike the accounting equity used for FFT’s financing activities, regulatory capital has no connection with the profits that an investor would claim from the company in which he invests. Regulatory capital is not an appropriate indicator of the profits obtained by a bank or financial institution, but only the implementation of a prudential obligation to which those institutions are subject. Hypothetical regulatory capital, determined by the application by analogy of the Basel II framework, cannot, a fortiori, constitute an appropriate indicator for determining the remuneration in respect of the risk to which FFT’s capital is exposed.256None of the arguments raised by the Grand Duchy of Luxembourg is such as to call that finding into question.257First, the fact, relied on by the Grand Duchy of Luxembourg, in response to questions put by the Court at the hearing, that the tax administration queried whether FFT was correctly capitalised, does not justify the hypothetical regulatory capital having been used as a profit level indicator.258Second, the argument of the Grand Duchy of Luxembourg that FFT was obliged, as a financing company, to have minimum capital in accordance with the Circular must be rejected as ineffective. It is sufficient to note, as the Commission points out, that such an obligation does not justify the minimum capital, held in accordance with that obligation, constituting an appropriate profit level indicator, since a regulatory obligation does not reflect the shares of profits obtained.259In the third place, with regard to the Commission’s assessment, as a subsidiary point, that there is an inconsistency in taking into consideration the hypothetical regulatory capital for the purpose of determining the return on accounting equity, unlike the return on regulatory capital, first, it must be noted that, even if it was correct to use only the hypothetical regulatory capital as a profit level indicator, the Grand Duchy of Luxembourg offers no convincing explanation to justify the inconsistency in the methodology applied.260As the Commission stated in recitals 253 and 254 of the contested decision, a return on equity is a profitability ratio. Taking into consideration the accounting equity enables the net profit to be established, which constitutes the shareholders’ remuneration, whereas the regulatory capital does not reflect any claim to the company’s profits, but represents only the capital which a regulated company is obliged to hold.261The arguments of the Grand Duchy of Luxembourg that the method used to determine the return on equity is not ‘inconsistent’ because (i) it enables the separate activities of FFT to be taken into account, and (ii) the Basel II framework is an international benchmark just like the CAPM must be rejected as ineffective in that respect. None of them can explain why the regulatory capital can be used to determine the return on accounting equity.262Second, it should also be noted that, as the Commission found in recital 263 of the contested decision, since the comparison of FFT, in the transfer pricing report for the purpose of calculating the CAPM, with 66 companies identified by the tax adviser is not based on the hypothetical regulatory capital of those 66 companies, the choice of FFT’s hypothetical regulatory capital as a profit level indicator is inconsistent.263In the light of the foregoing, it must be held that the Commission was fully entitled to consider that the Grand Duchy of Luxembourg should not have used the hypothetical regulatory capital of FFT as a base for calculating the risk remuneration.264Since it has been held that the Commission correctly found that the hypothetical regulatory capital could not be used to calculate FFT’s remuneration, there is no need to examine the arguments by which the Grand Duchy of Luxembourg seeks to challenge the Commission’s assessment that the calculation of FFT’s hypothetical regulatory capital was incorrect (the third error). That reasoning was put forward by the Commission as a subsidiary point, as is evident from recital 276 of the contested decision, and is based on the erroneous premiss that the hypothetical regulatory capital could be used as a profit level indicator to calculate the remuneration in respect of the risks borne by FFT. (4) The fourth error, relating to the failure to take FFT’s shareholdings into consideration 265The Grand Duchy of Luxembourg disputes the Commission’s assessment that the capital linked to FFT’s shareholdings in FFC and FFNA should have been taken into consideration in calculating the remuneration for FFT’s intra-group financing and treasury activities.266First of all, the Grand Duchy of Luxembourg maintains that the Commission should have found that the remuneration for the shareholdings in FFNA and FFC was by definition excluded from the scope of transfer pricing. In its submission, dividends from shareholdings are exempt from tax and no financial burden is associated with that financing, or deducted.267The Grand Duchy of Luxembourg goes on to claim that, contrary to the Commission’s assertion in recital 282 of the contested decision, under Luxembourg law, any source of funding must be allocated so far as possible to every company asset. It submits that FFT’s shareholdings are funded by equity, in the amount of EUR 165244000, which is outside the scope of transfer pricing and should be excluded from the calculations in respect of the remuneration for the risks borne by FFT for its intra-group financing activity.268In addition, the Grand Duchy of Luxembourg submits that, under the rules of the Basel II framework, shareholdings in other credit institutions may be excluded. In so far as the Commission rejected that argument, in recital 281 of the contested decision, on the ground that FFT was not a credit institution, the Grand Duchy of Luxembourg considers that approach to be inconsistent with the rest of the contested decision, in which the Commission applied the Basel II framework.269Furthermore, the Grand Duchy of Luxembourg takes issue with the Commission’s finding in recital 286 of the contested decision that, in essence, the shareholdings in FFNA and FFC could not be deducted from the accounting equity, because that would bring down FFT’s leverage effect, which corresponds to the ratio of indebtedness to equity, which is [confidential]% taking into account those shareholdings, [confidential] the ratio of indebtedness of the European banks’ average, which is 2.9% or 3.3% according to sampling. It argues that the panel of banks used by the Commission and the average resulting therefrom are certainly not a decisive benchmark, since other banks have higher debt ratios. Moreover, it was not individual accounting equity but consolidated accounting equity that would have had to have been taken into account. Furthermore, the sample used by the Commission is not representative.270Last, according to the Grand Duchy of Luxembourg, the comparison drawn by the Commission, in recital 288 of the contested decision, with Fiat Finance SpA (‘FF’), a treasury company established in Italy, is neither relevant nor conclusive. In that respect, it disputes that it was necessary to apply to FF the same methodology as that applied to FFT, namely that of deducting shareholdings from the equity, because that would result in FF having negative capital. First, FF is an Italian taxable entity, not a Luxembourg entity. Second, the Commission had merely shown that, in the case of FF, the shareholdings were funded by debt.271As a preliminary point, it must be noted that, in recitals 277 to 290 of the contested decision, the Commission found, in essence, that the Grand Duchy of Luxembourg had made an error of assessment by isolating the ‘financial investments in FFNA and FFC’, which FFT had assessed as EUR 165244000 (Table 2 of the contested decision) and by according it a zero remuneration. That will have led, according to the Commission, to a reduction in FFT’s tax liability.272It must also be pointed out that it is common ground that the method endorsed by the Grand Duchy of Luxembourg in the tax ruling at issue is intended, for the purposes of establishing the tax payable by FFT, to determine the remuneration which FFT would have obtained for its intra-group financing and treasury activities if it had operated under market conditions. The method in question consists in calculating the return on capital. In that context, admittedly, the fact that FFT is not subject to tax, as a holding company, on the dividends it receives from FFNA and FFC — which, as is undisputed, are taxed on the dividends — might suggest that the capital assigned to those shareholdings does not have to be taken into consideration in determining the tax that would be payable by FFT if it operated at arm’s length. However, such an assertion cannot be accepted for the following reasons.273First, it must be noted that, as the Commission correctly argues in recital 282 of the contested decision, equity is fungible. In the event of FFT’s insolvency, the creditors will be repaid on the basis of the whole of the equity. Therefore, contrary to what is claimed by the Grand Duchy of Luxembourg, and by FFT in its observations at the hearing, even though the shareholdings in FFNA and FFC would not give rise to any taxable dividend, the latter’s dividends having been taxed before being distributed to FFT as holding company, the fact remains that, in the event of FFT’s insolvency, the equity linked to the holding of those shares, like the rest of the equity, would be used to cover FFT’s debts. In those circumstances, FFT’s capital, whether or not it can be linked to the shares it holds, is in any event exposed to risk and must be taken into consideration in the calculation of FFT’s remuneration even though the shareholdings in FFNA and FFC would not give rise to any taxable income.274Second, it must be pointed out that, as the Commission correctly notes, the Grand Duchy of Luxembourg has not established that the other companies with which the Commission compared FFT deducted their shareholdings in subsidiaries from their capital or that it is not common for financial institutions operating on the market to have such shareholdings. In those circumstances, the Commission was entitled to find that excluding FFT’s shareholdings in its two subsidiaries did not enable an appropriate comparison to be made of FFT with other undertakings operating on the market.275Third, it must be stated that, even if the Basel II framework principles were applied in the present case, FFT would not satisfy the prerequisite for deducting part of the amount of its capital equal to the shareholdings in FFNA and FFC, namely that FFT, FFNA and FFC do not have consolidated accounts in Luxembourg. As the Commission noted in recitals 112 and 281 of the contested decision, and as the Grand Duchy of Luxembourg confirmed in response to measures of organisation of procedure, FFT’s accounts were consolidated in Luxembourg.276Fourth, it must be noted that, while the Grand Duchy of Luxembourg disputes that FFT’s leverage ratio must be compared to the Commission’s sample of banks, the fact remains that it has not put forward any argument or any evidence to explain why — if it must be concluded that the equity covering the financial investments in FFNA and FFC is not to be taken into consideration even though it constitutes almost 60% of FFT’s total equity (Table 2 in the contested decision) — that ratio would not be significantly lower than that identified by the Commission and even that used by the Grand Duchy of Luxembourg itself.277In so far as the leverage ratio is calculated by reference to the amount of equity, it must be noted that, while the leverage ratio of [confidential]%, identified by the Commission, [confidential] when all of FFT’s equity was taken into account, [confidential] if the proportion of equity equal to the shareholdings in FFNA and FFC was not taken into account. That finding applies irrespective of whether the market standard is 2.9% or 3.3%, as identified by the Commission, or even 4 to 4.5%, as is evident from the sample of ratios used by the Grand Duchy of Luxembourg.278In the light of the considerations set out in paragraphs 271 to 277 above, it must be held that the Commission correctly found that the Grand Duchy of Luxembourg had wrongly excluded part of FFT’s capital, equal to its shareholdings in its subsidiaries, from the capital to be taken into consideration for the purpose of determining FFT’s remuneration for its intra-group financing and treasury activities.279It follows from all of the findings set out in paragraphs 209 to 278 above that the Commission was fully entitled to find that FFT’s capital should have been taken into account in its entirety for the purposes of calculating FFT’s remuneration and that a single rate should have been applied. In any event, it also correctly considered that the method consisting, on the one hand, in using FFT’s hypothetical regulatory capital and, on the other, in excluding FFT’s shareholdings in FFNA and FFC from the amount of the capital to be remunerated could not result in an arm’s length outcome.280In those circumstances, it must be held that the methodology approved by the Grand Duchy of Luxembourg minimised FFT’s remuneration, on the basis of which FFT’s tax liability is determined, and it is not necessary to examine the complaints put forward by the Grand Duchy of Luxembourg in relation to the fifth error identified by the Commission, concerning the rate of return. The finding that the amount of capital to be remunerated was underestimated alone is sufficient, in the present case, to establish the existence of an advantage.281First, the ratio between the capital actually taken into account in the methodology used by the tax ruling at issue and the total capital is so great that the error in the determination of the capital to be remunerated necessarily leads to a reduction of FFT’s tax burden, irrespective of the single rate of return to be applied. The amount of the hypothetical regulatory capital, which is EUR 28 million, represents only approximately 10% of the total amount of the equity, which is EUR 287 million.282Second, as has been stated in paragraph 211 above, the method for determining the remuneration for FFT’s intra-group financing and treasury activities, as endorsed in the tax ruling at issue, consists of two steps: first, determination of the amount of capital to be remunerated and, second, determination of the rate of return to be applied. In the first step, the methodology accepted by the tax ruling at issue distinguishes between three separate amounts to which three separate rates are applied, determined by different methods. Consequently, since the first step of the calculation is incorrect, it is not necessary to examine the second step. The finding of an error in the first step of the methodology endorsed in the tax ruling at issue necessarily makes the examination of any errors in the calculation of the rate of return — the second step — redundant. The return should be entirely recalculated by the Grand Duchy of Luxembourg in the light of the amount of capital that should have been taken into consideration. It is apparent, moreover, from recital 311 of the contested decision that an accurate estimate of the taxable base of FFT should be calculated on the basis that a single rate is applied to the full amount of its accounting equity.283It must be noted that, as regards the amount of the rate of return, the parties disagree as to whether this should be 10%, as the Commission contends, or 6.05%, as is maintained by the Grand Duchy of Luxembourg (recital 304 of the contested decision). Consequently, even if it is the lower rate that is to be applied, the amount of FFT’s resulting remuneration would still be considerably higher than that accepted by the tax ruling at issue. That rate, which corresponds to that applied to the first segment, would be applied to the full amount of the capital, which represents an amount 10 times greater than that to which the rate was applied pursuant to the tax ruling at issue. In that context, it must be stated that, in any event, none of the arguments of the Grand Duchy of Luxembourg relating to the rate of return can invalidate the Commission’s finding of the existence of an advantage.284The Court therefore considers that, although the Grand Duchy of Luxembourg has disputed the fifth error identified by the Commission, concerning the rate of return (see paragraph 194 above), it is not necessary to examine the merits of those arguments.285In those circumstances, all the complaints raised by the Grand Duchy of Luxembourg concerning the Commission’s examination of the methodology for determining FFT’s remuneration must be rejected.286It follows from all of the findings in paragraphs 211 to 285 above that the Commission correctly considered that the tax ruling at issue had endorsed a methodology for determining FFT’s remuneration that did not enable an arm’s length outcome to be achieved and that resulted in a reduction of FFT’s tax burden. Accordingly, it was fully entitled to find, in the context of its principal line of reasoning, that the tax ruling at issue conferred an advantage on FFT. 3. The Commission’s subsidiary line of reasoning according to which the tax ruling at issue derogated from Article 164(3) of the Tax Code and from the Circular 287The finding, in paragraph 286 above, that the Commission did not make an error in its principal line of reasoning alone is sufficient for it to be concluded that the Commission has established that the tax ruling at issue conferred an advantage on FFT. Nevertheless, the Court considers it appropriate to examine, for the sake of completeness, the Commission’s subsidiary line of reasoning, according to which the tax ruling at issue derogated from Article 164(3) of the Tax Code and from the Circular.288In that regard, the Court notes that, in the second part of its first plea, the Grand Duchy of Luxembourg submits that the tax ruling at issue is in line with the arm’s length principle as provided for in the domestic law of Luxembourg.289290It must be observed in that regard that, as a subsidiary point, in Section 7.2.4 of the contested decision, entitled ‘Subsidiary line of reasoning: Selective advantage due to a derogation from Article 164 [of the Tax Code] and/or the Circular’ (recitals 315 to 317 of the contested decision), the Commission found that the tax ruling at issue conferred an advantage on FFT on the ground that it derogated from the arm’s length principle under Luxembourg law, provided for in Article 164(3) of the Tax Code and in the Circular (see recitals 316 and 317 of the contested decision).291In recital 316 of the contested decision, the Commission stated the following:‘As a subsidiary line of reasoning, … the [tax ruling at issue] also grants FFT a selective advantage in the context of the more limited reference system composed of group companies applying transfer pricing to which Article 164(3) [of the Tax Code] and the Circular apply. Article 164(3) [of the Tax Code] and the Circular are considered to establish the “arm’s length principle” under Luxembourg tax law, according to which transactions between intra-group companies should be remunerated as if they were agreed to by independent companies negotiating under comparable circumstances at arm’s length. Section 2 of the Circular, in particular, contains a description of the arm’s length principle as set out in the OECD … Guidelines and transposed into domestic law.’292Next, in recital 317 of the contested decision, the Commission recalled that it had already demonstrated, in the context of Section 7.2.2 of that decision, that the tax ruling at issue did not enable a reliable approximation of an arm’s length outcome to be achieved. On the basis of that finding, it concluded that the tax ruling at issue ‘also [gave] rise to a selective advantage under the more limited reference system of Article 164(3) [of the Tax Code] or the Circular, since it [resulted] in a lowering of FFT’s tax liability as compared to the situation where the arm’s length principle laid down in that provision had been properly applied’.293It is clear from recitals 316 and 317 of the contested decision that the Commission concluded that the tax ruling at issue conferred a selective advantage on FFT, since it resulted in a lowering of the tax liability as compared to the situation where the arm’s length principle laid down by Article 164(3) of the Tax Code and in the Circular had been properly applied.294It must be noted that the Commission based that conclusion on the examination of the tax ruling at issue which it undertook in the context of its principal analysis. It thus confirmed that it had already demonstrated, in Section 7.2.2 of the contested decision, that the tax ruling at issue did not enable a reliable approximation of an arm’s length outcome to be achieved.295In that regard, first, it must be noted that Article 164(3) of the Tax Code provides that ‘taxable income comprises hidden profit distributions’ and that ‘a hidden profit distribution arises in particular when a shareholder, a stockholder or an interested party receives either directly or indirectly benefits from a company or an association which he normally would not have received if he had not been a shareholder, a stockholder or an interested party’. In addition, the Circular states, in Section 2, that ‘where an intra-group service has been rendered, as with other types of intra-group transfers, one should ascertain whether an arm’s length price is charged for such service, i.e. a price corresponding to the price which would have been charged and agreed to by independent enterprises in comparable circumstances’. It follows that Article 164(3) of the Tax Code and the Circular provide that the remuneration for intra-group transactions must be determined as though the price of those transactions had been agreed between stand-alone undertakings. The Grand Duchy of Luxembourg and FFT do not, moreover, dispute the Commission’s assessment, in recital 75 of the contested decision, that those provisions establish the arm’s length principle under Luxembourg law.296Second, it must be noted that the Circular refers to Article 9 of the OECD Model Tax Convention and to the OECD Guidelines as the international benchmark for transfer pricing purposes. In its principal analysis of the selective advantage, the Commission largely referred to the OECD Guidelines, notably in identifying the five errors in the methodology for determining FFT’s remuneration. It follows that the same analytical framework could be used by the Commission both in its principal analysis and in its subsidiary analysis.297Accordingly, in the circumstances of the present case, it must be concluded that the Commission did not make an error in considering itself entitled to transpose the analysis undertaken in the light of the arm’s length principle as described in the contested decision, entailing the determination of FFT’s remuneration, in order to conclude that the tax ruling at issue conferred an advantage on FFT because FFT had paid less tax than it would have had to pay under Article 164(3) of the Tax Code and the Circular.298The arguments of the Grand Duchy of Luxembourg that the tax ruling at issue complies with Luxembourg law cannot call into question the finding in paragraph 297 above. Those arguments have already been rejected in paragraphs 226 and 227 above.299It follows from all of these findings that the Commission was fully entitled to consider that, in any event, the tax ruling at issue conferred a selective advantage on FFT because it resulted in a lowering of FFT’s tax liability as compared to the tax it would have had to pay under Article 164(3) of the Tax Code and the Circular. 4. Plea alleging the lack of any advantage at group level 300The Grand Duchy of Luxembourg and FFT claim, in essence, that the Commission has not demonstrated that there is an advantage at the level of the Fiat/Chrysler group and has thus infringed its obligation to state reasons as provided for in Article 296 TFEU and also Article 107 TFEU.301Specifically, the Grand Duchy of Luxembourg contends that the statement of reasons for the contested decision is manifestly deficient and contradictory in that the Commission refused, in recital 314 of that decision, to take account of its effects at the level of the Fiat/Chrysler group, whilst simultaneously relying on the effects of that advantage in designating that group, in recitals 342 and 344 of the decision, the beneficiary of the alleged aid at issue.302The Grand Duchy of Luxembourg maintains that, unlike the facts in the case giving rise to the order of 31 August 2010, France Télécom v Commission (C‑81/10 P, not published, EU:C:2010:475, paragraph 43), any charges borne by the other subsidiaries, such as higher taxation, are not ‘unconnected’ with the advantage that FFT allegedly obtained. Moreover, it relies on the judgment of 17 December 2015, Spain and Others v Commission (T‑515/13 and T‑719/13, EU:T:2015:1004, paragraphs 115 and 116), in criticising the Commission for having failed to investigate or to explain how the Fiat/Chrysler group had actually been given an advantage.303For its part, FFT claims that the Commission misapplied Article 107 TFEU by ignoring the effect of the tax ruling at issue on the Fiat/Chrysler group as a whole when determining whether FFT and the Fiat/Chrysler group had benefited from an advantage.304First, FFT observes that, in recital 155 of Commission Decision 2011/276/EU of 26 May 2010 concerning State aid in the form of a tax settlement agreement implemented by Belgium in favour of Umicore SA (formerly Union Minière SA) (State aid C 76/03 (ex NN 69/03)) (OJ 2011 L 122, p. 76, ‘the Umicore decision’), the Commission recognised that national tax authorities had to have a margin of appreciation in the assessment of transfer pricing. The alleged advantage to FFT is, in its submission, not out of proportion and is only a consequence of that margin of appreciation.305Second, FFT observes that, in recital 314 of the contested decision, the Commission wrongly considered it unnecessary to examine whether the impact of the tax ruling at issue was neutral at group level. FFT thus submits that, even if the transactions between FFT and another group company had given it a higher profit margin in Luxembourg, that would have meant that the other company of the Fiat/Chrysler group would have been entitled to a correspondingly higher deductible interest expense.306Furthermore, FFT maintains that the contested decision is contradictory in that the Commission, on the one hand, concludes that the tax advantage benefits the whole group and, on the other, refuses to take into consideration the effect of the measure on the whole group. FFT claims that, in the present case, unlike the facts in the case giving rise to the judgment of 30 November 2009, France and France Télécom v Commission (T‑427/04 and T‑17/05, EU:T:2009:474), the effects of the measure are neutralised at group level, and that therefore there is no advantage.307In addition, FFT submits that the seven judgments to which the Commission refers are no authority for the latter’s position that it is not obliged to review the existence of an advantage at the level of the Fiat/Chrysler group.308In that regard, FFT notes that the importance of the effect on the Fiat/Chrysler group when determining whether the tax ruling at issue conferred an advantage is illustrated by the difficulties faced by that group, since the Italian tax administration found that FFT’s taxable profit was too high to be considered arm’s length. Consequently, FFT had overstated its taxable profit and paid too much corporate income tax in Luxembourg.309Last, as regards the various methodological points, FFT submits that the Commission should have applied a proportionality test when determining whether the tax ruling at issue conferred an advantage on it. Furthermore, FFT states that it fully supports the arguments of the Grand Duchy of Luxembourg, in Case T‑755/15, concerning the methodology for determining its remuneration and challenging the errors identified by the Commission.310311As a preliminary point, it must be stated that the Grand Duchy of Luxembourg does not make any distinction between the arguments it puts forward, whether to establish the existence of an infringement of Article 107 TFEU or of a failure to state reasons in that regard. However, it must be noted that, in essence, its arguments are intended to establish, on the one hand, a failure to state reasons, in so far as there is allegedly an inconsistency in the contested decision, and, on the other hand, an infringement of Article 107 TFEU in so far as, in its view and according to FFT, the Commission was not entitled to conclude that FFT and the Fiat/Chrysler group had been given an advantage.312As regards, in the first place, the alleged inconsistency of the contested decision, it should be noted that, in recital 314 of the contested decision, the Commission concluded, in essence, that FFT had received a selective advantage in so far as its tax burden in Luxembourg had been lowered. In that regard, the Commission also noted in that recital that, according to the case-law, the fact that that lowering of the tax in Luxembourg had led to a greater tax burden in another Member State would have no bearing on the categorisation of that measure as aid.313Moreover, in recitals 341 to 345 of the contested decision, the Commission found that, while the tax ruling at issue granted a selective advantage to FFT within the meaning of Article 107(1) TFEU, the favourable tax treatment afforded to FFT would benefit that group as a whole, since FFT and the Fiat/Chrysler group formed an economic unit. The Commission made clear in that respect that, since the amount of tax paid by FFT influenced the pricing conditions of the intra-group loans granted by it to the companies of that group, reductions of FFT’s tax liability reduced the pricing conditions of its intra-group loans.314It must therefore be held — as regards the requirement that there be an advantage, which is the third prerequisite for a finding of State aid according to the case-law cited in paragraph 118 above — that there is no inconsistency in the Commission’s assessments in the contested decision with regard to determining the beneficiary of the aid, who is identified, in essence, as being FFT, directly, and the Fiat/Chrysler group, indirectly, inasmuch as FFT forms an economic unit and, therefore, an undertaking, for the purposes of the law on State aid, with the Fiat/Chrysler group.315That first complaint of the Grand Duchy of Luxembourg, alleging a failure to state reasons, must therefore be rejected as unfounded.316As regards the complaint that the Commission infringed Article 107 TFEU by finding that FFT and the Fiat/Chrysler group had been given an advantage, it must be stated at the outset that, as the Commission indicates, the Grand Duchy of Luxembourg has not put forward any argument to establish that the Fiat/Chrysler group and FFT do not constitute an economic unit for the purposes of State aid law. In any event, as the Commission pointed out in recital 342 of the contested decision, FFT is fully controlled by Fiat SpA, which in turn controls the Fiat/Chrysler group. Therefore, any advantage that would benefit FFT would benefit that group as a whole, in particular if it involves, as the Commission observes, without being contradicted in that respect by the Grand Duchy of Luxembourg, conditions of loans granted by FFT to other group companies that are more advantageous because of the lowering of FFT’s tax burden.317In addition, and in any event, assuming that that factor may be relevant, it must be noted that neither the Grand Duchy of Luxembourg nor FFT has established that the tax reductions from which FFT benefits in Luxembourg are ‘neutralised’ by higher taxes in other Member States.318Furthermore, even if that were the case, such ‘neutralisation’ would not permit the inference that FFT or the Fiat/Chrysler group had not benefited from an advantage in Luxembourg. It must be noted that, in the context of a tax measure, the existence of an advantage is determined by reference to normal taxation rules, so that the tax rules of another Member State are not relevant (see, by analogy, judgment of 11 November 2004, Spain v Commission, C‑73/03, not published, EU:C:2004:711, paragraph 28). Consequently, where it has been established that an integrated undertaking benefits, under a tax measure granted by a Member State, from a reduction of the tax burden that it would otherwise have had to bear in accordance with the normal rules of taxation, the tax situation of another undertaking of the same group in another Member State has no bearing on the existence of an advantage. For the same reason, and without it being necessary to rule on the admissibility of the documents lodged by FFT following the reply to show that an arbitration procedure had been initiated to avoid double taxation of FFT in Luxembourg and in Italy, the Court must reject as unfounded FFT’s argument that, in essence, in any event, its income is taxed either in Italy or in Luxembourg, so that it does not benefit from an advantage.319None of the arguments which the Grand Duchy of Luxembourg and FFT advance in that respect can call that finding into question.320First, in so far as the Grand Duchy of Luxembourg claims that the Commission could not refer to the order of 31 August 2010, France Télécom v Commission (C‑81/10 P, not published, EU:C:2010:475, paragraph 43), since it did not investigate whether the Fiat/Chrysler group had actually benefited from an advantage, that argument must be rejected as unfounded. Suffice it to note in that regard that, in recital 343 of the contested decision, the Commission found that any favourable tax treatment afforded to FFT necessarily benefited the other group companies in respect of which it charged transfer prices.321Second, in so far as the Grand Duchy of Luxembourg relies on the judgment of 17 December 2015, Spain and Others v Commission (T‑515/13 and T‑719/13, EU:T:2015:1004, paragraphs 115 and 116), in order to establish that the Commission should have investigated whether the Fiat/Chrysler group actually benefited from an advantage, it must be pointed out not only that that judgment has been set aside by the Court of Justice (judgment of 25 July 2018, Commission v Spain and Others, C‑128/16 P, EU:C:2018:591), but that the facts in the case that gave rise to that judgment are, in all events, unconnected with the facts of the present case.322In the judgment of 17 December 2015, Spain and Others v Commission (T‑515/13 and T‑719/13, EU:T:2015:1004), the General Court held that the Commission had made an error in finding that the beneficiaries of aid were Economic Interest Groupings (EIG) and their members, when it could not be established that their members, who were the only entities referred to by the recovery order, benefited from selective advantages.323In the present case, the Commission has established to the requisite legal standard that not only FFT but also all the companies forming part of the group and dealing with FFT would benefit from the tax advantage granted by FFT, in view of its impact on the pricing conditions of its intra-group loans. That argument of the Grand Duchy of Luxembourg must therefore be rejected as unfounded.324Third, in so far as FFT takes the view that the Commission should have applied a proportionality test to determine whether the tax ruling at issue conferred an advantage, notably in the light of the Umicore decision, that argument must be rejected as unfounded. First, it must be borne in mind that the Commission is not bound by its previous practice in taking decisions. Second, as it points out in the Umicore decision, the Commission recognised that the tax authorities have a discretion in the context of a transaction bringing an end to a dispute, thereby avoiding potentially long or uncertain litigation, but not in the context of a tax ruling to determine the tax which a company should pay in the future.325It follows from all of the foregoing that the third plea must be rejected as unfounded.326Accordingly, in the light of the considerations set out in paragraphs 118 to 325 above, it must be held that the Commission did not infringe Article 107 TFEU by finding that FFT and the Fiat/Chrysler group had benefited from an advantage as a result of the fact that FFT had paid less tax than that which an undertaking transacting on the market would have had to pay.327In those circumstances, the second series of pleas raised by the Grand Duchy of Luxembourg and FFT, relating to the existence of an advantage, must be rejected in its entirety. E. Third series of pleas, concerning the non-selectivity of the advantage granted to FFT 328By the first plea in Case T‑755/15 and by the first complaint in the first part of the first plea in Case T‑759/15, the Grand Duchy of Luxembourg and FFT claim that the Commission wrongly considered that the tax ruling at issue was a selective measure. They maintain, principally, that the Commission took into consideration an erroneous reference framework in its three-step analysis of selectivity. In their view, the tax ruling at issue does not derogate from the tax regime applicable to integrated companies, which they regard as the relevant reference framework. They thus argue that the Commission failed to demonstrate that the tax ruling at issue had been granted to FFT on more advantageous terms than those given to other integrated companies.329In addition, the Grand Duchy of Luxembourg and FFT take issue with the Commission’s argument that it could in any event presume that the tax ruling at issue was selective, since it was an individual measure and the Commission had established that that measure conferred an advantage on FFT. They contend that the case-law distinguishes between ad hoc individual measures and individual tax measures applying general tax arrangements. In the latter case, selectivity could not be presumed but would have to be examined by reference to Luxembourg law and practice in order for it to be established whether the conditions of application are discriminatory or whether the discretion afforded to the national authorities is excessive. The Grand Duchy of Luxembourg and FFT go on to argue that the tax ruling at issue is not an ad hoc individual measure but an individual measure which is part of a general system prescribing the imposition of additional charges, that is the transfer pricing legislation, as in the case giving rise to the judgment of 4 June 2015, Commission v MOL (C‑15/14 P, EU:C:2015:362).330Ireland submits that, according to the case-law and legal literature, the only relevant reference system for determining whether a tax measure is selective is the Member State’s tax system of which that measure forms part, and not an abstract or hypothetical tax system, as applied, wrongly, by the Commission in the contested decision. In its submission the reference system to be taken into consideration is that of the specific tax regime applicable to integrated companies.331The Commission contests all of those arguments.332As a preliminary point, it should be observed that the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show that the measure, in particular, creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59).333It must, however, be noted that the selectivity requirement differs depending on whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective (‘the presumption of selectivity’). By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity (judgments of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 60, and of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 49; see also, to that effect, judgment of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraphs 53 and 54). It should be made clear that, where individual aid is at issue, the presumption of selectivity operates independently of the question whether there are operators on the relevant market or markets which are in a comparable factual and legal situation (judgment of 13 December 2017, Greece v Commission, T‑314/15, not published, EU:T:2017:903, paragraph 79).334It is also apparent from settled case-law that, in order to classify a national tax measure which is not an individual measure as ‘selective’, the Commission must begin by identifying the ordinary or ‘normal’ tax system applicable in the Member State concerned, and thereafter demonstrate that the tax measure at issue is a derogation from that ordinary system, in so far as it differentiates between operators who, in the light of the objective pursued by that ordinary tax system, are in a comparable factual and legal situation (judgments of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49; of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 57; and of 13 December 2017, Greece v Commission, T‑314/15, not published, EU:T:2017:903, paragraph 85).335The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and are, therefore, a priori selective, where the Member State concerned is able to demonstrate that that differentiation is justified since it flows from the nature or general structure of the system of which the measures form part (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 58 and the case-law cited).336Therefore, using a three-step method, as set out in paragraphs 334 and 335 above, it is possible to conclude that a national tax measure that does not constitute an individual measure is selective.337In the present case it must be noted that, in the contested decision, the Commission principally examined the selectivity of the measure at issue by following the three steps mentioned in paragraphs 334 to 336 above. However, it also applied the presumption of selectivity, according to which a measure is presumed to be selective if it confers an advantage and if the aid is individual aid. In recital 218 of the contested decision, and in its written submissions, the Commission recalled that, ‘according to the Court, in the case of an individual aid measure, as opposed to a scheme, “the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective”’, and that FFT benefits in the present case from an ‘individual aid measure’. The Commission also emphasised at the hearing, in response to questions put by the Court, that it demonstrated the selectivity of the advantage in question in several ways in the contested decision, including by means of the presumption of selectivity, the lawfulness of which was not, however, confirmed by the case-law until after the contested decision was adopted.338The Court considers it appropriate to begin by examining the arguments of the Grand Duchy of Luxembourg and FFT to the effect that the Commission was not entitled to presume that the aid was selective, nor to find that they had failed to rebut the presumption of selectivity.339In the first place, as regards the presumption of selectivity, it must be recalled that, as is evident, in essence, from the case-law cited in paragraph 333 above, this applies subject to the twofold condition that the measure at issue constitutes individual aid (and not an aid scheme) and that it grants an advantage to the undertaking that is the beneficiary of the aid. In the case of a simple presumption, it is therefore for the applicant to establish that one or other of those two conditions is not met, if the presumption is to be rebutted.340First, as regards the condition relating to the existence of an advantage, it must be held that that is met. As has been noted in paragraph 286 above, the Grand Duchy of Luxembourg and FFT were unable to show that the Commission had wrongly concluded that the amount of tax payable by FFT was lower than that which it would have had to pay under normal market conditions.341Second, as regards the condition that the measure at issue must be individual aid, the Grand Duchy of Luxembourg and FFT dispute, in essence, both in their written submissions and at the hearing in response to questions put by the Court, that the tax ruling at issue may constitute ad hoc individual aid. According to them, it is an individual implementing measure which is part of a general scheme, as in the case giving rise to the judgment of 4 June 2015, Commission v MOL (C‑15/14 P, EU:C:2015:362).342In that regard, it should be noted that, under Article 1(e) of Regulation 2015/1589, individual aid is aid that is not awarded on the basis of an aid scheme and awards of aid on the basis of an aid scheme that are notifiable under Article 2 of that regulation.343According to Article 1(d) of Regulation 2015/1589, an aid scheme comprises ‘any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’.344The following considerations can be extrapolated from the definition of ‘aid scheme’ provided for in Article 1(d) of Regulation 2015/1589, set out in paragraph 343 above, as interpreted by the case-law.345First, the existence of an aid scheme implies, in principle, the identification of provisions on the basis of which the aid is granted. It has nevertheless already been held that, when examining an aid scheme, and no legal act establishing such an aid scheme having been identified, the Commission may rely on a set of circumstances which, taken as a whole, indicate the de facto existence of an aid scheme (see, to that effect, judgment of 13 April 1994, Germany and Pleuger Worthington v Commission, C‑324/90 and C‑342/90, EU:C:1994:129, paragraphs 14 and 15).346Second, where the individual aid is granted without the need for further implementing measures, the essential elements of an aid scheme must necessarily be apparent from the provisions identified as constituting the basis of that scheme.347Third, where the national authorities apply an aid scheme, those authorities cannot have a discretion in determining the essential elements of the aid in question and as to whether it is appropriate to grant it. In order for the existence of such implementing measures to be ruled out, the national authorities’ powers should be limited to the technical application of the provisions deemed to constitute the scheme in question, possibly after having verified that applicants satisfy the requirements for benefiting from the scheme.348Fourth, it follows from Article 1(d) of Regulation 2015/1589 that the acts underpinning the aid scheme must define the beneficiaries in a general and abstract manner, even if the aid that is granted to them is indefinite.349In the present case, it must be stated that, as the Commission emphasised in response to questions at the hearing, the tax ruling at issue cannot be considered to be a measure granted on the basis of an aid scheme.350First of all, it must be noted that neither the general system of corporate taxation, nor the specific tax regime applicable to integrated companies, or any other provision identified by the parties constitutes a scheme within the meaning of both parts of the sentence in Article 1(d) of Regulation 2015/1589, on the basis of which the measure at issue was granted to FFT. Nor do the parties rely on a set of circumstances which, taken as a whole, indicate the de facto existence of an aid scheme.351Next, it must be pointed out that the measure at issue does not relate in general terms to the adoption of tax rulings by the tax authorities but to a tax ruling which specifically concerns FFT (see judgment of 13 December 2017, Greece v Commission, T‑314/15, not published, EU:T:2017:903, paragraphs 80 and 81). It is common ground that the purpose of the tax ruling at issue is to determine the amount of tax which FFT alone is required to pay under the applicable Luxembourg tax provisions, and therefore that the tax ruling at issue relates exclusively to the individual situation of FFT. It must therefore be stated that the essential elements of the aid measure and notably the elements that constitute the advantage, namely the approval of a methodology for determining FFT’s remuneration on the basis of the segmentation of the capital and the application of different rates of return by reference to that segmentation, thereby deviating from an arm’s length outcome, are apparent solely from the tax ruling at issue and not from provisions of Luxembourg tax law on the basis of which the tax ruling at issue was granted.352Last, it must be noted, in all events, that, as the Grand Duchy of Luxembourg indicated in response to the oral questions put by the Court, it is evident from the Luxembourg legislation itself that the tax administration has a margin of appreciation in evaluating, in the light of the circumstances of each case, the best method for calculating the taxable amount of each company submitting a request for a tax ruling. The grant of tax rulings by the Luxembourg tax authorities requires, in every case, a specific analysis resulting in a complex assessment. The margin of appreciation which the Luxembourg administration has in every tax ruling thus precludes the tax ruling at issue being nothing more than a measure implementing an aid scheme.353In that regard, it must be pointed out that the fact that the tax ruling at issue is not an isolated measure but one of a large number of tax rulings granted to undertakings in Luxembourg has no bearing on the finding that, in so far as the tax ruling at issue granted an advantage to FFT, such a tax ruling constitutes individual aid to that undertaking.354It is apparent from all those considerations, and in particular from paragraphs 345 and 350 above, that the tax ruling at issue is not an aid scheme nor an individual aid measure adopted pursuant to an aid scheme, within the meaning of both parts of the sentence in Article 1(d) of Regulation 2015/1589. First, the tax ruling at issue does not contain any provision on the basis of which it would be possible to award aid within the meaning of both parts of the sentence in Article 1(d) of Regulation 2015/1589. Second, there is nothing from which it might be inferred that that tax ruling was adopted on the basis of such a provision.355In those circumstances, it must therefore be held that the tax ruling at issue must be considered to constitute individual aid, within the meaning of Article 1(e) of Regulation 2015/1589.356That conclusion is not called into question by the other arguments raised by the Grand Duchy of Luxembourg and by FFT.357First, the Court must reject as unfounded the argument of the Grand Duchy of Luxembourg that, in essence, the Commission could not call into question aid adopted under an aid scheme without first calling that scheme into question, since the tax ruling at issue was not adopted under an aid scheme.358Second, in so far as FFT claims that the tax ruling at issue represents the application of the transfer pricing rules in Luxembourg and the Commission failed to identify undertakings that were in circumstances legally and factually comparable to FFT, and to take account of the significant differences between group companies and stand-alone companies, that argument must be rejected as ineffective. That argument does not call into question the finding that the measure at issue is ad hoc individual aid.359In the light of the above, it must be concluded that the Commission did not in any event err in finding that the advantage conferred on FFT by the tax ruling at issue was selective, since the conditions attached to the presumption of selectivity were fulfilled in the present case.360In any event, and even if the presumption of selectivity did not in fact apply, it must be noted that the Commission also found that the advantage conferred on FFT by the tax ruling at issue was selective in the light of the three-step examination mentioned in paragraphs 334 to 336 above. It will be recalled that the first step of this examination consists of identifying the relevant reference framework; the second step, of examining whether the measure at issue derogates from that reference framework; and, finally, the third step, of verifying whether any such derogation can be justified by the nature and the general scheme of the rules of which the reference framework is composed. The Commission carried out that examination using as a reference framework, principally, the general Luxembourg corporate income tax system and, on a subsidiary basis, Article 164 of the Tax Code and the Circular.361As regards the first and second steps, it should be noted that, irrespective of the reference framework used by the Commission, whether that is the general corporate income tax system or Article 164 of the Tax Code and the Circular, the Commission correctly found that the tax ruling at issue derogated from the rules constituting each of those reference frameworks. As has been found in paragraphs 286 and 299 above, the Commission correctly considered, both in its principal analysis, in the light of the general corporate income tax system, and in its subsidiary analysis, in the light of Article 164 of the Tax Code and the Circular, that the tax ruling at issue conferred an advantage on FFT. As has been found in paragraph 122 above, the Commission considered, concurrently, whether there was an advantage and, in the context of its examination of selectivity, whether there was a derogation from the reference frameworks previously identified. As the Commission stated in recital 217 of the contested decision, the question whether the tax ruling at issue constitutes a derogation from the reference framework coincides with the identification of the advantage granted to the beneficiary by that measure.362In those circumstances, it must be held that the arguments by which the parties seek to challenge the reference framework identified by the Commission are ineffective and the Court must reject, as unfounded, the arguments seeking to challenge the Commission’s analysis with regard to the second step of its reasoning, that is the examination of a derogation from the reference framework.363As regards the third step, it must be noted that, in the contested decision, the Commission found that neither the Grand Duchy of Luxembourg nor FFT had advanced any possible justification for the selective treatment of FFT as a result of the tax ruling at issue. Moreover, it confirmed that it had not identified any ground justifying the preferential treatment from which FFT had benefited (recitals 337 and 338 of the contested decision).364In addition, inasmuch as FFT claims, for the purpose of justifying the derogation, that the tax ruling at issue is in line with the arm’s length principle, suffice it to note that that argument is based on a false premiss.365As regards FFT’s argument that the tax ruling at issue would enable double taxation to be avoided, as the Commission correctly points out, FFT has not maintained nor established that it could avoid double taxation only if the tax ruling at issue was adopted. Furthermore, in all events it must be stated that, as the Commission rightly observes, the question of double taxation is unconnected with, and has no bearing on, the question of determining the selectivity of an advantage.366It therefore follows from the considerations set out in paragraphs 360 to 365 above that the Commission did not make any error in concluding on the basis of the three-step analysis of selectivity that the measure at issue was selective.367In the light of the above, the Court must reject, in its entirety, the third series of pleas put forward by the Grand Duchy of Luxembourg and FFT, concerning the non-selectivity of the advantage granted to FFT. F. Fourth series of pleas, concerning a restriction of competition 368The Grand Duchy of Luxembourg claims that the Commission has not adduced proof, in breach of Articles 107 and 296 TFEU, of any restriction of competition, actual or potential.369According to the Grand Duchy of Luxembourg, the Commission did not establish either in recital 189 of the contested decision or in recitals 343 and 345 of that decision how FFT’s being relieved of a tax liability that it would otherwise have been obliged to pay would have the effect of strengthening its position or that of the Fiat/Chrysler group on any market. Moreover, in its submission, the generic reference alone, in recital 189 of the contested decision, to the financial position of that group is manifestly insufficient to characterise such an effect, even a potential effect.370FFT also submits that the Commission infringed Articles 107 and 296 TFEU in that the analysis in the contested decision of the competitive effect of the tax ruling at issue was almost non-existent.371In the first place, FFT claims that in recital 189 of the contested decision the Commission merely asserted that the tax ruling at issue had strengthened the financial position of FFT and of the Fiat/Chrysler group and was therefore liable to distort competition.372In addition, FFT submits that, according to the case-law, a measure must be assessed according to its effects and not according to its objectives. The bald assertion that lower tax liability in Luxembourg strengthened the competitive position of the Fiat/Chrysler group is tantamount to a ‘by object’ condemnation, when it is only effect that counts. The Commission cannot always presume that competition is distorted. FFT adds that the facts of the case are complex and that it was necessary to take into account the overall effect of the tax ruling at issue on the group.373Furthermore, FFT maintains that, even if it were assumed that it benefited from an unduly low corporate income tax in Luxembourg, FFT does not provide services or goods to third parties and therefore does not have a competitive position in any market in which competition could be distorted.374In the second place, FFT maintains that the statements in recital 345 of the contested decision, although not part of the competitive effects analysis in the contested decision, are erroneous.375In the third place, FFT submits that the Commission’s conclusion that the tax ruling at issue affected competition is based on the assumption that FFT paid less corporate income tax than a stand-alone company. However, FFT challenges the validity of that comparison.376377As regards the Commission’s finding that there was a restriction of competition, which is the fourth condition for a finding of State aid, it should be noted that, in recital 189 of the contested decision, first of all, the Commission recalled that a measure granted by the State is considered to distort or threaten to distort competition when it is liable to improve the competitive position of the recipient compared to other undertakings with which it competes. Next, it stated that, to the extent that the tax ruling at issue had relieved FFT of a tax liability that it would otherwise have been obliged to pay under the general corporate income tax system, that tax ruling distorted or threatened to distort competition by strengthening the financial position of FFT and the Fiat/Chrysler group.378In addition, in recitals 343 to 345 of the contested decision, which concern the beneficiary of the contested measure, the Commission made clear that the tax ruling at issue benefited the whole of the Fiat/Chrysler group, since it provided additional resources not only to FFT but to the entire group. The Commission added that the amount of tax paid by FFT to Luxembourg influenced the pricing conditions of the intra-group loans granted by it to the group companies, since those conditions were based on the average cost of capital of the group. The Commission concluded that reductions of FFT’s tax liability had necessarily reduced the pricing conditions of its intra-group loans.379As has been stated in paragraph 178 above, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the Courts of the European Union to carry out their review.380When applied to the classification of a measure as aid, that principle requires a statement of the reasons for which the Commission considers that the measure concerned falls within the scope of Article 107(1) TFEU. In that regard, even in cases where it is apparent from the circumstances under which it was granted that the aid is liable to affect trade between Member States and to distort or threaten to distort competition, the Commission must at least set out those circumstances in the statement of reasons for its decision (judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 89, and of 30 April 2009, Commission v Italy and Wam, C‑494/06 P, EU:C:2009:272, paragraph 49).381As regards the condition relating to the distortion of competition, it follows from the case-law that, in principle, aid intended to release an undertaking from costs which it would normally have had to bear in its day-to-day management or normal activities distorts the conditions of competition (judgments of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraph 30, and of 3 March 2005, Heiser, C‑172/03, EU:C:2005:130, paragraph 55).382It is settled case-law that, for the purpose of categorising a national measure as ‘State aid’, it is necessary not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (see judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 140 and the case-law cited).383Furthermore, as regards in particular operating aid such as the aid at issue, as the Commission submits, it is apparent from the case-law that such aid is intended to release an undertaking from costs which it would normally have had to bear in its day-to-day management or normal activities and in principle distorts the conditions of competition (see judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 136 and the case-law cited).384In the present case, it should be noted that it is apparent from recitals 189, 343 and 345 of the contested decision, the content of which is set out in paragraphs 377 and 380 above, that the Commission found that FFT and the group to which it belonged benefited from an advantage resulting from a tax reduction that the other companies with which it competes did not have and which was therefore liable to improve its financial position on the market, so that the tax ruling at issue restricted competition. According to the Commission, the reduction of FFT’s tax burden as a result of the tax ruling at issue provided additional resources to the whole group, in so far as it had the effect of reducing the pricing conditions of its intra-group loans. In the light of the case-law set out in paragraphs 379 to 382 above, it must be stated that these points are sufficient for a finding that the Commission did refer to the circumstances that led it to consider the measure at issue to be liable to affect competition and to distort trade. It should be borne in mind that, as is evident from paragraph 7 above, FFT provides treasury and financing services to the companies of that group which are established in Europe, excluding those established in Italy.385It must therefore be held that the Commission did not infringe its obligation to state reasons or make an error of assessment by concluding that the measure at issue was liable to restrict competition on the market, in so far as the corresponding tax reduction improved the financial position of FFT and of the group to which it belonged to the detriment of that of its competitors.386That finding is not called into question by the other arguments of the Grand Duchy of Luxembourg and of FFT.387In the first place, in so far as the Grand Duchy of Luxembourg relies on the judgment of 17 December 2015, Spain and Others v Commission (T‑515/13 and T‑719/13, EU:T:2015:1004), it must be noted, as has been indicated in paragraph 321 above, that that judgment of the General Court was set aside by the Court of Justice in its judgment of 25 July 2018, Commission v Spain and Others (C‑128/16 P, EU:C:2018:591).388In any event, it must be noted that, in the judgment of 17 December 2015, Spain and Others v Commission (T‑515/13 and T‑719/13, EU:T:2015:1004), the General Court found that the statement of reasons for the Commission’s decision was insufficient in that the reasons why the advantage conferred on investors, and not on the shipping companies and shipyards that had received the aid, was liable to entail a distortion of competition were not sufficiently clear. However, the facts of the present case are different, since the advantage is conferred on FFT and on the group to which it belongs. Therefore, the circumstances of the present case require no other explanation than that, by being required to pay a reduced tax, FFT, and the companies of the Fiat/Chrysler group, had benefited from an advantage, so that competition on the markets on which the companies of the Fiat/Chrysler group operated was affected as a result.389In the second place, FFT refers to three judgments to support its argument that the Commission should have undertaken a more detailed investigation of the facts.390First, as regards the judgments of 17 September 1980, Philip Morris v Commission (730/79, EU:C:1980:209, paragraph 11), and of 15 June 2000, Alzetta and Others v Commission (T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98, EU:T:2000:151, paragraph 80), it must be noted that, contrary to FFT’s contention, while the Commission did, in those cases, specifically identify the relevant market, the pre-existing competitive position and the purpose of the aid, it is not apparent from either of those judgments that the Commission must systematically carry out such an analysis when it sets out the reasons why the measure at issue distorts competition. As has been stated in paragraph 384 above, the Commission identified the reasons why the measure at issue constituted operating aid enabling FFT and the Fiat/Chrysler group companies to benefit from an advantage and to improve their financial position and, in FFT’s case, to reduce the pricing conditions of its intra-group loans.391Furthermore, unlike the facts in the case giving rise to the judgment of 24 October 1996, Germany and Others v Commission (C‑329/93, C‑62/95 and C‑63/95, EU:C:1996:394), in which the Court annulled the Commission’s decision for failure to state reasons, and contrary to the facts that gave rise to the judgment of 13 March 1985, Netherlands and Leeuwarder Papierwarenfabriek v Commission (296/82 and 318/82, EU:C:1985:113), in the present case, the Commission did in fact set out the reasons for its view that there was a restriction of competition.392Those arguments must therefore be rejected as unfounded.393In the third place, inasmuch as FFT submits that a measure must be assessed according to its effects and not according to its objectives, suffice it to note that it is apparent from the case-law cited in paragraph 118 above that aid must distort or threaten to distort competition. In the present case, as has been stated in paragraph 384 above, the Commission correctly found that the measure at issue had the effect of distorting competition.394In the fourth place, in so far as FFT submits that the Commission’s conclusion that the tax ruling at issue affected competition is based on the erroneous assumption that FFT paid less corporate income tax than a stand-alone company, that argument must be rejected as unfounded. The Commission correctly found that FFT had benefited from a tax advantage, and was thus entitled to conclude that such an advantage would be liable to distort competition in the markets in which FFT and the group to which it belonged operated.395In the fifth place, in so far as FFT maintains that, even if it were assumed that it had benefited from an unduly low corporate income tax in Luxembourg, FFT does not provide services or goods to third parties and does not, therefore, have a competitive position in any market in which competition could be distorted, or that the goods and services which the group companies provide are driven by market conditions, those arguments must be rejected as unfounded. Since FFT benefits from a reduction of its tax burden, it is in a position to finance the activities of other companies of the group at a lower cost, thereby distorting competition in the markets in which the latter operate.396In the sixth place, FFT maintains that the statements in recital 345 of the contested decision, although not part of the competitive effects analysis in the contested decision, are erroneous. According to FFT, the Commission was wrong to find that there was a link between the amount of tax paid by FFT in Luxembourg and the amount of interest FFT charges to Fiat/Chrysler group companies on its loans to them. In that regard, it is sufficient to note that, as FFT itself acknowledges, moreover, the fact that the Commission made an error in the amount of interest to be taken into consideration has no bearing on the finding that there is a restriction of competition. That argument must therefore be rejected as ineffective.397In the seventh place, inasmuch as FFT claims that there is a similarity between the decision annulled by the Court of Justice in the judgment of 30 April 2009, Commission v Italy and Wam (C‑494/06 P, EU:C:2009:272) and the present case, that argument, which it did not raise in the context of the second part of the first plea, must be rejected as unfounded. As the Commission contends, in the former case, the Court of Justice found that the aid in question was not operating aid. In addition, FFT has not called into question the case-law on which the Commission relied in the present case, according to which, in principle, operating aid distorts the conditions of competition. Nor has FFT established that such a presumption would not apply in the present case.398In the light of the foregoing, the Court must reject the pleas advanced by the Grand Duchy of Luxembourg and by FFT to the effect that the Commission failed to establish that there was a restriction of competition. G. Fifth series of pleas, relating to recovery of the aid 399This series of pleas, raised in the alternative by the Grand Duchy of Luxembourg, which deals with recovery of the aid, is in two parts. 1. First part, alleging infringement of Regulation 2015/1589 in that recovery of the alleged aid at issue is incompatible with the principle of legal certainty 400The Grand Duchy of Luxembourg contends that the Commission breached the principle of legal certainty and Article 16(1) of Regulation 2015/1589 in ordering the recovery of the alleged aid at issue.401Ireland states that it shares the Grand Duchy of Luxembourg’s view that the Commission breached the principle of legal certainty.402403It should be noted that Article 16(1) of Regulation 2015/1589 provides as follows:‘Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary … The Commission shall not require recovery of the aid if this would be contrary to a general principle of Union law.’404In the contested decision, first of all, the Commission indicated that, under Article 16(1) of Regulation 2015/1589, it was obliged to order recovery of unlawful and incompatible aid, unless recovery would be contrary to a general principle of law (recitals 354 and 355 of the contested decision). The Commission went on to find that the arguments of the Grand Duchy of Luxembourg to the effect that recovery would breach the principles of protection of legitimate expectations and of legal certainty were without merit (recital 364 of the contested decision). First, with regard to the protection of legitimate expectations, it observes that it did not give any precise assurance to the Grand Duchy of Luxembourg or to FFT (recitals 356 to 358 of the contested decision). Second, with regard to breach of the principle of legal certainty, it states that there is no previous decision-making practice that might have created uncertainty about the fact that tax rulings could lead to the granting of State aid. Moreover, and in particular, the Commission recalls that, according to the case-law, it is not required to state the exact amount of the aid to be recovered (recitals 360 to 363 of the contested decision).405According to the case-law, the principle of legal certainty, which is a general principle of EU law, requires that legal rules be clear and precise and aims to ensure that situations and legal relationships governed by EU law remain foreseeable (judgment of 15 February 1996, Duff and Others v Commission, C‑63/93, EU:C:1996:51, paragraph 20).406In the present case, first, inasmuch as the Grand Duchy of Luxembourg maintains that, in accordance with Article 16(1) of Regulation 2015/1589, recovery should not be ordered as it would breach the principle of legal certainty, it must be noted that the legal rule that led to the adoption of the contested decision — that is Article 107 TFEU, and the four conditions for a finding of such aid, which are recalled in paragraph 118 above — is clear and precise.407In that regard, it must be borne in mind that the concept of State aid is defined on the basis of the effects of the measure on the competitive position of its beneficiary (see, to that effect, judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 87). It follows from this that Article 107 TFEU prohibits any aid measure, irrespective of its form or the legislative means used to grant such aid (see, to that effect, judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 79).408Accordingly there is no doubt that any State measure, such as a tax ruling, that fulfils the conditions referred to in Article 107 TFEU is, in principle, prohibited and must be made the subject of a recovery order.409Second and in any event, it must be noted that, as the Commission has observed, there was no objective fact on the basis of which the Grand Duchy of Luxembourg or FFT were entitled to conclude that the Commission would not apply Article 107 TFEU to tax rulings. First, it is evident from the Commission’s practice in taking decisions, to which it refers in footnote 71 of the contested decision and the validity of which is not disputed by the Grand Duchy of Luxembourg, that the Commission has previously examined the compatibility of tax rulings with Article 107 TFEU. Second, the Grand Duchy of Luxembourg does not dispute that the Commission has already examined individual tax measures and has used the arm’s length principle to order the recovery of aid.410In those circumstances, the application alone of Article 107 TFEU to the tax ruling at issue does not constitute a breach of the principle of legal certainty. Accordingly, it is not possible properly to rely upon any breach of that principle in order to justify non-recovery of the aid resulting from the tax ruling at issue, pursuant to Article 16(1) of Regulation 2015/1589.411The other arguments put forward by the Grand Duchy of Luxembourg and Ireland are not persuasive.412First of all, inasmuch as the Grand Duchy of Luxembourg maintains that the framework used by the Commission to analyse FFT’s tax base was not sufficiently foreseeable, that it is necessary to display flexibility in not requiring an unrealistic level of precision and that it cannot be concluded that there was bad faith, it should be recalled that the Member States have a margin of appreciation in determining transfer pricing, and that it is only if the Commission finds an error in the determination of that pricing, which is such that that transfer pricing does not represent a reliable approximation of a market-based outcome, that it is entitled to identify an aid measure (see paragraph 204 above). In the present case, the Court has found that the Commission was fully entitled to conclude that the Grand Duchy of Luxembourg had endorsed, by the tax ruling at issue, errors in the methodology for determining FFT’s remuneration the effect of which was that the transfer price did not reflect the prices that would have been negotiated under market conditions. In those circumstances, it cannot be concluded that the Commission required an unrealistic level of precision, or that its analytical framework is unforeseeable. The Grand Duchy of Luxembourg cannot therefore properly claim that it was not foreseeable that the Commission would make a finding of aid and order its recovery.413Next, in so far as the Grand Duchy of Luxembourg submits that its tax ruling practice was compatible with the Code of Conduct in relation to business taxation and the OECD Guidelines, it is sufficient to note that the Commission found that, by the tax ruling at issue, which was not notified to it, the Grand Duchy of Luxembourg had granted State aid that was incompatible with the internal market within the meaning of Article 107 TFEU. In so doing, the Commission did not call into question the tax ruling practice as such. Moreover, the existence of State aid is examined in the light of the criteria laid down in Article 107 TFEU. In those circumstances, the fact that transfer pricing texts — which are not binding on the Commission — have been approved by the Council of the European Union or by the OECD has no bearing on the finding that the tax ruling at issue grants a selective advantage to FFT.414In addition, the Grand Duchy of Luxembourg and Ireland maintain that the application of the principle of legal certainty may require the retroactive effect of an act to be limited if there are serious economic risks and if the interested parties are acting in good faith, conditions that are met in the present case. In so far as the Grand Duchy of Luxembourg raises that argument in order to challenge the recovery of the aid at issue, it is sufficient to recall that an order for recovery does not constitute the retroactive implementation of an act. Removing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful and seeks to re-establish the previous situation (judgment of 19 October 2005, CDA Datenträger Albrechts v Commission, T‑324/00, EU:T:2005:364, paragraph 77 and the case-law cited).415In any event, in so far as the Grand Duchy of Luxembourg submits that the contested decision would have serious economic repercussions or cause serious difficulties for it and for other Member States, as has been observed in particular by representatives of the United States of America, it must be noted that Article 16(1) of Regulation 2015/1589 does not provide for aid that has been declared incompatible to be unrecoverable for that reason. Moreover, none of the arguments raised by the Grand Duchy of Luxembourg establishes that such serious economic repercussions exist. It is clear that the recovery of the aid at issue cannot, as such, have negative economic effects for the Grand Duchy of Luxembourg, since the sums recovered are allocated to its public finances. Further, contrary to what the Grand Duchy of Luxembourg seems to contend, as such, recovery from FFT of the aid received by FFT pursuant to the tax ruling at issue cannot have the direct effect of possibly ‘calling into question a very large number of tax rulings in the Grand Duchy of Luxembourg and potentially thousands in all the other Member States’. The mere fact that the Commission has called into question a tax ruling that grants a selective advantage to an undertaking means only that that tax ruling, issued contrary to Article 107 TFEU, will be subject to recovery, but not that all tax rulings, including those that do not constitute State aid, will be subject to recovery.416Therefore, the contested decision cannot be considered to have novel or serious consequences for international taxation, as the Commission has always had the power to investigate whether any tax measure constitutes State aid within the meaning of Article 107 TFEU.417Last, in so far as Ireland submits, in essence, that the Commission could not suggest, as it did in the contested decision, that if the Commission does not identify the amount of aid, the Member State is to contact it to determine the amount, suffice it to note that, in the present case, the Grand Duchy of Luxembourg has neither claimed nor established that the Commission’s findings, in recital 311 of the contested decision, with respect to the methodology for calculating the tax payable by FFT were so imprecise that it would have been impossible to calculate the amount of aid received without contacting the Commission, and thus that the contested decision created a legal uncertainty. On the contrary, the Grand Duchy of Luxembourg acknowledges having estimated the amount of the aid to be recovered as EUR 23.1 million. That argument must therefore be rejected as unfounded.418In the light of the above, the first part of the series of pleas concerning recovery must be rejected as unfounded. 2. Second part, alleging infringement of Regulation 2015/1589 in that recovery of the alleged aid at issue is contrary to the rights of the defence 419The Grand Duchy of Luxembourg submits that, in accordance with the Commission’s practice in taking decisions, where the amount of the aid cannot be assessed, it is not appropriate to order recovery. Where it is not possible to quantify the aid precisely, or to identify criteria by which a Member State, in conjunction with the Commission, could quantify it precisely, the Member State’s rights of defence are infringed, precluding recovery.420In that regard, the Grand Duchy of Luxembourg states that it has admittedly required the beneficiary of the alleged aid to pay an amount into an escrow account. That amount was calculated according to the information given by the Commission in recital 311 of the contested decision, and it was made clear that that calculation was without prejudice to the challenge to the Commission’s methodology. However, the Grand Duchy of Luxembourg considers that that calculation is completely artificial in that it would be impossible to quantify the alleged aid precisely, ‘without resorting to the Commission’s entirely arbitrary assessments in this case’. It maintains that there is not, in essence, one correct transfer price, according to the OECD and the Commission, but a broad range of correct prices. Further, the Grand Duchy of Luxembourg submits that it has no real flexibility to deviate from the methodology proposed by the Commission in the contested decision.421422In the contested decision, the Commission found first of all in recital 367 that, according to the case-law, although EU law does not require the exact amount of the aid to be recovered to be quantified, it is sufficient for the Commission’s decision to include information enabling the addressee of the decision to work out that amount itself without overmuch difficulty. The Commission went on to explain that it had identified, in recital 311 of the contested decision, a methodology for eliminating the selective advantage granted to FFT if the Grand Duchy of Luxembourg chose to use the TNMM, while also mentioning that the Grand Duchy of Luxembourg could use an alternative method within the deadline for the implementation of the decision (recitals 367 to 369 of the contested decision).423In the present case, first, it must be noted that the Grand Duchy of Luxembourg does not dispute the Commission’s assessment that it is apparent from the judgment of 18 October 2007, Commission v France (C‑441/06, EU:C:2007:616, paragraph 29 and the case-law cited), that a Commission decision does not necessarily have to indicate the amount of aid to be recovered if it includes information enabling the Member State to work out that amount itself without overmuch difficulty.424Second, the Grand Duchy of Luxembourg does not claim that, in the present case, the contested decision failed to provide information enabling it to work out the amount to be recovered itself. It thus acknowledges having calculated and assessed that amount as EUR 23.1 million, for the purpose of its recovery from FFT. Moreover, far from considering the Commission’s method of calculation to be imprecise, it merely submits, in essence, that that method does not give it ‘real flexibility to deviate from the Commission’s dogmatic approach’. In so doing, the Grand Duchy of Luxembourg recognises, at least implicitly, that that method is sufficiently precise to enable it to calculate the amount of aid to be recovered.425In those circumstances, the Commission cannot be accused of having infringed the rights of defence of the Grand Duchy of Luxembourg by failing to indicate the amount of aid to be recovered in the contested decision.426None of the arguments advanced by the Grand Duchy of Luxembourg is liable to undermine that conclusion.427First, in so far as the Grand Duchy of Luxembourg submits that the fact that it asked FFT to pay an amount of EUR 23.1 million into an escrow account is without prejudice to the fact that it challenges the Commission’s method of calculation, that argument must be rejected as ineffective. The Grand Duchy of Luxembourg has not established that the contested decision is insufficiently precise to the extent that it is unable to determine the amount that must be recovered. It merely challenges the methodology used by the Commission for the purposes of calculating the amount of aid to be recovered, which it describes as arbitrary. The question as to whether or not the methodology is correct is unconnected with infringement of the rights of the defence, to which the second part of the fifth series of pleas relates.428Next, in so far as the Grand Duchy of Luxembourg maintains that, by identifying a ‘broad range’ of possible amounts, the contested decision fails to comply with the requirement that the amount of the aid be identified relatively precisely, it is sufficient to note that, by identifying a method which was followed by the Grand Duchy of Luxembourg, the Commission satisfied the condition set out in the case-law mentioned in paragraph 423 above, according to which the method must enable the amount to be recovered to be determined without difficulty. Moreover, the range proposed by the Commission does not relate to the amount of aid to be recovered but to the amount it considers appropriate for FFT’s tax base. That information is sufficiently precise to enable the Grand Duchy of Luxembourg to calculate the amount of aid to be recovered. Furthermore, the fact that the Commission confirmed that other methods could have resulted in other amounts and that it provided an opportunity to propose an alternative method for calculating the amount to be recovered does not affect the fact that the contested decision contains sufficiently precise information regarding recovery, nor in itself prevent recovery of the aid.429In those circumstances, the second part of the fifth series of pleas relating to recovery, and this series as a whole, must be rejected as unfounded.430It follows from all of the above considerations that the actions in Cases T‑755/15 and T‑759/15 must be dismissed. IV. Costs A. In Case T‑755/15 431Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the Grand Duchy of Luxembourg has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.432Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. Ireland shall therefore bear its own costs. B. In Case T‑759/15 433Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since FFT has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.434On those grounds,hereby: 1. Joins Cases T‑755/15 and T‑759/15 for the purposes of the judgment; 2. Dismisses the actions; 3. Orders the Grand Duchy of Luxembourg to bear its own costs and to pay those incurred by the European Commission in Case T‑755/15; 4. Orders Fiat Chrysler Finance Europe to bear its own costs and to pay those incurred by the Commission in Case T‑759/15; 5. Orders Ireland to bear its own costs. Van der WoudeTomljenovićBieliūnasMarcoulliKornezovDelivered in open court in Luxembourg on 24 September 2019.E. CoulonRegistrarM. van der WoudePresidentTable of contentsI. Background to the disputeA. The tax ruling issued to FFT by the Luxembourg tax authoritiesB. The administrative procedure before the CommissionC. The contested decision1. Description of the contested measure2. Description of the Luxembourg rules on transfer pricing3. Description of the OECD Guidelines4. Assessment of the contested measureII. Procedure and forms of order soughtA. The written part of the procedure and the forms of order sought in Case T‑755/151. Composition of the formation of the Court and priority treatment2. Request that the case be dealt with under the expedited procedure3. Interventions4. Applications for confidential treatment5. Forms of order soughtB. The written part of the procedure and the forms of order sought in Case T‑759/15C. Joinder for the purposes of the oral part of the procedure, and the oral part of the procedure in Cases T‑755/15 and T‑759/151. Joinder2. Oral part of the procedure in Cases T‑755/15 and T‑759/15III. LawA. Joinder of the cases for the purposes of the present judgmentB. Pleas in law relied on and the structure of the examination of the present actionsC. First series of pleas, alleging infringement of Articles 4 and 5 TEU, in so far as the Commission has allegedly engaged in tax harmonisation in disguiseD. Second series of pleas, alleging the absence of an advantage1. Preliminary observations2. The Commission’s principal line of reasoning, that the tax ruling at issue derogated from the general Luxembourg corporate income tax system(a) Pleas alleging an error in the application of the arm’s length principle in the monitoring of State aid(b) Plea regarding an incorrect method of calculation in the determination of FFT’s remuneration(1) Preliminary observations(2) The first error, relating to the failure to take into consideration the whole of FFT’s equity(i) Observations on the tax ruling at issue(ii) The possibility in the OECD Guidelines and in the Circular of segmenting capital(iii) Whether the segmentation of the capital is appropriate(3) The second error, relating to the taking into consideration of the hypothetical regulatory capital(4) The fourth error, relating to the failure to take FFT’s shareholdings into consideration3. The Commission’s subsidiary line of reasoning according to which the tax ruling at issue derogated from Article 164(3) of the Tax Code and from the Circular4. Plea alleging the lack of any advantage at group levelE. Third series of pleas, concerning the non-selectivity of the advantage granted to FFTF. Fourth series of pleas, concerning a restriction of competitionG. Fifth series of pleas, relating to recovery of the aid1. First part, alleging infringement of Regulation 2015/1589 in that recovery of the alleged aid at issue is incompatible with the principle of legal certainty2. Second part, alleging infringement of Regulation 2015/1589 in that recovery of the alleged aid at issue is contrary to the rights of the defenceIV. CostsA. In Case T‑755/15B. In Case T‑759/15( *1 ) Languages of the case: French and English.( 1 ) Confidential information omitted. | bf2f7-aeb0c1b-4171 | EN |
Piaggio’s intellectual property rights in the Vespa LX scooter have not been infringed | 24 September 2019 ( *1 )(Community design – Invalidity proceedings – Registered Community design representing a moped – Earlier Community design – Ground for invalidity – Individual character – Different overall impression – Informed user – Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 – Interpretation of Article 6 of Regulation No 6/2002 in conformity with EU law – No use of an unregistered earlier national three-dimensional mark in the registered design – Article 25(1)(e) of Regulation No 6/2002 – No unauthorised use of a work protected under the copyright law of a Member State in the registered design – Article 25(1)(f) of Regulation No 6/2002)In Case T‑219/18, Piaggio & C. SpA, established in Pontedera (Italy), represented by F. Jacobacci, B. La Tella and B. Lucchetti, lawyers,applicant,v European Union Intellectual Property Office (EUIPO), represented by L. Rampini and J. Crespo Carrillo, acting as Agents,defendant,the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Zhejiang Zhongneng Industry Group Co. Ltd, established in Taizhou (China), represented by M. Spolidoro, M. Gurrado, S. Verea and M. Balestriero, lawyers,ACTION brought against the decision of the Third Board of Appeal of EUIPO of 19 January 2018 (Case R 1496/2015-3), relating to invalidity proceedings between Piaggio & C. and Zhejiang Zhongneng Industry Group,THE GENERAL COURT (Sixth Chamber),composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,Registrar: E. Hendrix, Administrator,having regard to the application lodged at the Registry of the General Court on 30 March 2018,having regard to the response of EUIPO lodged at the Court Registry on 9 July 2018,having regard to the response of the intervener lodged at the Court Registry on 9 July 2018,further to the hearing on 27 February 2019,having regard to the order of 30 April 2019 reopening the oral part of the procedure,having regard to the Court’s written question to the parties and their responses to that question lodged at the Court Registry on 16 and 17 May 2019,having regard to the decision of 20 May 2019 closing the oral part of the procedure,gives the following Judgment Background to the dispute 1On 19 November 2010 the intervener, Zhejiang Zhongneng Industry Group Co. Ltd, filed an application for registration of a Community design with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).2The design in respect of which registration was sought is represented as follows in the six views below:3In accordance with Articles 41 to 43 of Regulation No 6/2002, the intervener invoked, in its application for registration, a right of priority for the contested design, based on an earlier application for registration of the same design, filed with the competent Chinese authority on 13 July 2010.4The goods into which the contested design is intended to be incorporated are in Class 12-11 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968, as amended, and correspond to the following description: ‘Mopeds; motorcycles’.5The design application was published in Community Designs Bulletin No 2010/265 of 23 November 2010. The design was registered under No 1783655-0002, with a registration date of 19 November 2010 and priority from 13 July 2010.6On 6 November 2014 the applicant, Piaggio & C. SpA, filed an application with EUIPO for a declaration of invalidity in respect of the contested design, pursuant to Article 52 of Regulation No 6/2002, for the goods referred to in paragraph 4 above.7The grounds relied on in support of the application for a declaration of invalidity were those referred to in Article 25(1)(b), (e) and (f) of Regulation No 6/2002.8In the first place, with regard to the ground for invalidity referred to in Article 25(1)(b) of Regulation No 6/2002, the applicant argued, in its application for a declaration of invalidity, that the contested design lacked novelty and individual character for the purposes of Articles 5 and 6 of that regulation. In support of its claims, the applicant chose the earlier design marketed under the name Vespa LX (‘the earlier design’), the disclosure of which it demonstrated using the images which appeared in the specialist magazines Motociclismo of May 2005, In sella of April 2005 and City-X of June 2009. Those images and the information which accompanied them are reproduced below:9According to the applicant, the contested design was substantially identical to the earlier design and produced the same overall impression as that design, which ruled out its being new and having individual character for the purposes of Articles 5 and 6 of Regulation No 6/2002.10In the second place, with regard to the ground for invalidity referred to in Article 25(1)(e) of Regulation No 6/2002, the applicant argued that the scooter shape into which the earlier design was intended to be incorporated was also protected, by Italian law, as an unregistered three-dimensional ‘de facto mark’, used in Italy since 2005 (‘the earlier mark’). According to the applicant, that trade mark has become highly distinctive through use, inasmuch as the distinctive features of the three-dimensional scooter shape which it protects have remained substantially the same since the creation and first marketing of the Vespa scooter by the applicant, both of which date back to 1945 and 1946. According to the applicant, the distinctive features in question are as follows:–the ‘X’ shape between the rear fairing and the under-seat assembly, illustrated below:the inverted ‘Ω’ shape between the under-seat assembly and the front shield, illustrated below:the arrow shape of the front shield, illustrated below:11The applicant maintained that it had provided evidence of the well-known use of the earlier mark and of the likelihood of confusion on the part of the relevant public with the earlier mark created by the contested design.12In the third place, with regard to the ground for invalidity referred to in Article 25(1)(f) of Regulation No 6/2002, the applicant argued that the earlier design was protected by Italian and French copyright. According to the applicant, the earlier design, as an intellectual work, was unfairly used in the contested design.13By decision of 23 June 2015, the Invalidity Division recognised that the contested design was new for the purposes of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 5 of that regulation. Relying on the earlier design, it nevertheless granted the application for a declaration of invalidity in respect of the contested design, on the ground that that design lacked individual character for the purposes of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation. Since it concluded that the contested design was invalid due to the failure to satisfy that condition required by Regulation No 6/2002 for its protection, the Invalidity Division took the view that it was not necessary to examine the other grounds for invalidity relied on by the applicant, namely those referred to in Article 25(1)(e) and (f) of that regulation.14On 27 July 2015 the intervener filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the Invalidity Division’s decision.15By decision of 19 January 2018 (‘the contested decision’), the Third Board of Appeal of EUIPO upheld the intervener’s appeal, annulled the Invalidity Division’s decision and rejected the application for a declaration of invalidity. In essence, first of all, it took the view that the differences between the designs at issue were sufficient to preclude a finding that the contested design lacked novelty in view of the earlier design for the purposes of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 5 of that regulation. Next, unlike the Invalidity Division, it concluded that the contested design did not lack individual character for the purposes of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation. In that regard, the Board of Appeal indicated, first, that the differences between the designs at issue were numerous and sufficiently significant and, second, that the contested design produced a different overall impression on the informed user of that design from that generated by observing the earlier design. Lastly, exercising the powers of the Invalidity Division under Article 60 of Regulation No 6/2002, the Board of Appeal decided on the other two grounds for invalidity relied on by the applicant before the Invalidity Division, namely those referred to in Article 25(1)(e) and (f) of that regulation. Thus, it concluded that the earlier mark was not used in the contested design, due, in particular, to the obvious differences in style between them and the high level of attention of the relevant public of the earlier mark, and that, consequently, the ground for invalidity laid down in Article 25(1)(e) of Regulation No 6/2002 did not apply. In addition, with regard to the ground for invalidity laid down in Article 25(1)(f) of Regulation No 6/2002, the Board of Appeal took the view that a finding that the contested design was invalid as it infringed Italian and French copyright was not justified, inasmuch as the earlier design, as an intellectual work, was not used in the contested design, as their aesthetics and the impressions which emanated from them were different. Procedure and forms of order sought 16The applicant claims that the Court should:annul the contested decision and, consequently, declare the contested design invalid;order EUIPO and the intervener to pay the costs relating to the proceedings before the Board of Appeal, in accordance with Article 190 of the Rules of Procedure of the General Court;order EUIPO and the intervener to pay the entirety of the costs relating to the present proceedings.17EUIPO contends that the Court should:dismiss the action;order the applicant to pay the costs.18The intervener contends that the Court should:confirm that the contested design is valid; Law 19As a preliminary point, given that ‘confirm[ing] that the contested design is valid’ is tantamount to dismissing the action, the intervener’s second head of claim must be regarded as seeking, in essence, the dismissal of the action (see, by analogy, judgment of 13 December 2016, Apax Partners v EUIPO – Apax Partners Midmarket (APAX), T‑58/16, not published, EU:T:2016:724, paragraph 15).20In support of the action, the applicant relies on three pleas in law, the first alleging infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation, the second alleging infringement of Article 25(1)(e) of that regulation, and the third alleging infringement of Article 25(1)(f) of that regulation. First plea in law, alleging infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation 21In its first plea in law, the applicant maintains that, in paragraphs 24 to 26 of the contested decision, the Board of Appeal wrongly considered that it had acknowledged that the designs at issue were not completely identical and that the differences between them could not be described as ‘immaterial details’.22The applicant also argues that the Board of Appeal erred in the interpretation and application of the principles referred to in Article 6 of Regulation No 6/2002, when, in the light of the earlier design, the contested design lacks individual character for the purposes of that provision.23EUIPO and the intervener contest all the applicant’s arguments.24It should be borne in mind that Article 25(1)(b) of Regulation No 6/2002 provides that a Community design may be declared invalid only if it does not fulfil the requirements referred to in Articles 4 to 9 of that regulation.25Under Article 4(1) of Regulation No 6/2002, a design is to be protected by a Community design to the extent that it is new and has individual character.26Under Article 5 of Regulation No 6/2002, a design is to be considered to be new if no identical design has been made available to the public. Designs are to be deemed to be identical if their features differ only in immaterial details.27As a preliminary point, it should be noted that the statements set out in paragraphs 24 to 26 of the contested decision were made by the Board of Appeal as part of its examination of the contested design’s alleged lack of novelty for the purposes of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 5 of that regulation. As it confirmed at the hearing, the applicant does not rely, in support of its action, either on infringement of those provisions or on an error made by the Board of Appeal in its assessment of the novelty of the contested design and acknowledges that the designs at issue are not identical. As a result, the applicant cannot effectively contest, as part of the present plea in law, alleging, in particular, infringement of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Article 6 of that regulation, the Board of Appeal’s assessment, as set out in paragraphs 24 to 26 of the contested decision, of the contested design’s alleged lack of novelty for the purposes of Article 5 of that regulation.28With regard to the assessment of the individual character of the contested design, in the first place, it should be borne in mind that, according to Article 6(1)(b) of Regulation No 6/2002, a registered Community design is to be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, before the date of priority.29The Italian version of Article 6(1) of Regulation No 6/2002 adds that the overall impression which a design must produce for it to be considered to have individual character must differ ‘in modo significativo’ (‘significantly’) from the overall impression produced on an informed user by any design which has been made available to the public.30It should be noted that it is settled case-law that the need for a uniform interpretation of a provision of EU law means that, where there is divergence between the various language versions of the provision, the latter must be interpreted by reference to the context and purpose of the rules of which it forms part. Additionally, interpreting a provision of EU law involves a comparison of the language versions (see judgment of 23 December 2015, Firma Theodor Pfister, C‑58/15, not published, EU:C:2015:849, paragraph 25 and the case-law cited).31Among the acts drawn up as part of the process which led to the adoption of Regulation No 6/2002, the first proposal, submitted by the European Commission, for a European Parliament and Council Regulation on Community design (OJ 1994 C 29, p. 20) included, in all the language versions, the specification ‘significantly’ in Article 6(1) thereof. Following the Opinion of the Economic and Social Committee on the ‘proposal for a European Parliament and Council Regulation on the Community design’ (OJ 1994 C 388, p. 9), which indicated that the term ‘significantly’ would have had the effect of excluding numerous designs, particularly in textiles, from the proposed protection, and which suggested, consequently, that it be deleted, that specification was removed from all the language versions, except the Italian version, of Article 6(1) of the amended proposal, submitted by the Commission, for a Council Regulation (EC) on Community Design (OJ 2000 C 248 E, p. 3). That divergence in the wording of that provision remained, in the Italian version, in the amended proposal for a Council Regulation on Community Design (OJ 2001 C 62 E, p. 173), as finally submitted by the Commission.32It is apparent, in addition, from a comparative examination of the various existing language versions of Regulation No 6/2002, and in particular Article 6(1) thereof, that, with the exception of the Italian version, all the language versions of that provision state that a registered Community design is to be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public.33In those circumstances, the Court takes the view that the specification ‘significantly’ contained in Article 6(1) of Regulation No 6/2002 in just one of the language versions of that regulation is, clearly, an unfortunate remnant of the legislative process preceding the adoption of that regulation.34Article 6(1) of Regulation No 6/2002 must, consequently, be read and applied in accordance with (i) its wording, as recalled in paragraph 32 above, resulting from the various language versions of Regulation No 6/2002 currently in existence, with the exception of the Italian version, and (ii) the uniform and independent interpretation of the language version taken into account which case-law has given to that provision.35To that end, it should be borne in mind that the requirement laid down in Article 6 of Regulation No 6/2002 goes beyond that laid down in Article 5 of that regulation, in that a different overall impression on the informed user within the meaning of Article 6 can be based only on the existence of objective differences between the designs at issue (judgment of 6 June 2013, Kastenholz v OHIM – Qwatchme (Watch faces), T‑68/11, EU:T:2013:298, paragraph 39). Thus, account should be taken of differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 4 July 2017, Murphy v EUIPO – Nike Innovate (Electronic wristband), T‑90/16, not published, EU:T:2017:464, paragraph 43 and the case-law cited).36In the second place, it should be noted that recital 14 of Regulation No 6/2002 indicates, inter alia, that the assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him by the existing design corpus.37In that regard, Article 28(1)(b)(v) of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28) specifies that, where the ground for invalidity is that the registered Community design does not meet the requirements set out in, inter alia, Article 6 of Regulation No 6/2002, the application for a declaration of invalidity must contain an indication and a reproduction of the prior designs that could form an obstacle to the individual character of the registered Community design, as well as documents proving the existence of those earlier designs.38As it confirmed at the hearing, in support of the present plea in law, the applicant chose, over any previous presence in the existing design corpus to which recital 14 of Regulation No 6/2002 refers, the earlier design, inasmuch as it includes the features illustrated in paragraph 10 above, of which it provided reproductions proving its existence and its disclosure.39In the third place, it should be borne in mind that Article 6(2) of Regulation No 6/2002 specifies that, in assessing the individual character of a design, the degree of freedom of the designer in developing that design is to be taken into consideration.40It is in the light of those considerations that it is necessary to assess whether the contested design lacks individual character for the purposes of Article 6 of Regulation No 6/2002 in relation to the earlier design. Informed user of the contested design and degree of freedom of the designer 41In the present case, first of all, the Board of Appeal indicated, in paragraphs 30 to 32 of the contested decision, that the relevant sector in relation to which the informed user of the contested design was to be identified was that of ‘scooters’, as a subcategory of the category ‘Mopeds; motorcycles’.42Contrary to the intervener’s assertions, according to which the relevant sector is the ‘classic scooters’ subcategory, it must be confirmed that the relevant sector is that, selected by the Board of Appeal and not contested by the applicant, of ‘scooters’. That sector takes account of the indication, as contained in the application for registration, of ‘Mopeds; motorcycles’ as the goods into which the contested design is intended to be incorporated, but also of the contested design itself, in so far as that design enables ‘scooters’ to be identified within the broader category of goods indicated at the time of registration and, therefore, makes it possible to determine the informed user and the degree of freedom of the designer in developing the contested design (see, to that effect, judgment of 18 March 2010, Grupo Promer Mon Graphic v OHIM – PepsiCo (Representation of a circular promotional item), T‑9/07, EU:T:2010:96, paragraph 56).43Next, the Board of Appeal indicated, in paragraphs 33 to 35 of the contested decision, that the informed user of the contested design was the person who used a scooter for his own transport, who was familiar with the various scooter designs on the market and who had a certain degree of knowledge of the components normally included in those products. It added that, because of his interest in the vehicles in question, that person could be understood as a user who was both particularly observant and particularly attentive and sensitive to the design and aesthetics of the goods concerned.44With regard to the degree of freedom of the designer of the contested design, the Board of Appeal indicated, in paragraphs 36 to 41 of the contested decision, that the factors that to some extent affected design freedom in relation to scooters were not design trends or the possible crowding of the sector, but were primarily linked to the type and function of the vehicle, in that the scooter had to allow the driver to sit upright with his legs bent at 90° and his feet comfortably placed on a central footboard. The scooter also had to have wheels with a limited diameter, a front protective shield and a fairing covering the engine. Consequently, creative freedom could be expressed in the design of the shield, footboard, fairing, mudguards, seat and wheels and in the design and positioning of the front and rear lights. The Board of Appeal therefore concluded that the degree of freedom of the designer could be defined as at least average.45The comparison of the overall impressions produced by the designs at issue must be carried out on the basis of those observations of the Board of Appeal, which, furthermore, are not contested by the parties. Comparison of the overall impressions produced by the designs at issue on the informed user 46According to case-law, the assessment as to whether a design has individual character must be conducted in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously. Consequently, in order for a design to be considered to have individual character, the overall impression which that design must produce on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually (see, to that effect, judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraphs 25 and 35).47The individual character of a design results from an overall impression of difference, or lack of ‘déjà vu’, from the point of view of an informed user, in relation to any previous presence in the design corpus, without taking account of any differences that are insufficiently significant to affect that overall impression, even though they may be more than insignificant details, but taking account of differences that are sufficiently marked so as to produce dissimilar overall impressions (see judgment of 7 November 2013, Budziewska v OHIM – Puma (Bounding feline), T‑666/11, not published, EU:T:2013:584, paragraph 29 and the case-law cited).48In the assessment of the individual character of a design in relation to any previous presence in the design corpus, account must be taken of the nature of the product to which the design is applied or into which it is incorporated, and, inter alia, the industrial sector to which it belongs (see recital 14 of Regulation No 6/2002), the degree of freedom of the designer in developing the design (see Article 6(2) of Regulation No 6/2002), whether there is saturation of the state of the art, which, whilst it cannot be regarded as limiting the freedom of the designer, could be capable of making the informed user more attentive to the differences between the designs under comparison, and also the manner in which the product at issue is used, in particular on the basis of the handling to which it is normally subject on that occasion (see judgment of 7 November 2013, Bounding feline, T‑666/11, not published, EU:T:2013:584, paragraph 31 and the case-law cited).49Since the applicant chose the earlier design over any previous presence in the design corpus, a comparison should be made between, on the one hand, the overall impression produced by that design and, on the other, the overall impression produced by the contested design (see, to that effect, judgment of 22 June 2010, Shenzhen Taiden v OHIM – Bosch Security Systems (Communications equipment), T‑153/08, EU:T:2010:248, paragraphs 23 and 24).50In the first place, it must be found that the applicant is not justified in maintaining that the fact that the designs at issue have several common features and have a very similar general shape shows that the contested design creates an overall impression of ‘déjà vu’ in relation to the earlier design.51As was correctly observed by the Board of Appeal, whereas the contested design is dominated by substantially angular lines, the earlier design favours rounded lines. The designs at issue consequently convey different impressions to the informed user, to whom a particular degree of attentiveness and sensitivity must be ascribed, in particular with regard to the design and aesthetics of the goods concerned.52In addition, it should be borne in mind that it is possible that, when comparing designs, the impression produced by each of them may be dominated by certain features of the goods or the parts of the goods concerned. However, in order to determine whether a given feature dominates a product, or a part thereof, it is necessary to assess the greater or lesser influence which the various features of the product or the part at issue have on the appearance of that product or that part (see, to that effect, judgment of 25 October 2013, Merlin and Others v OHIM – Dusyma (Games), T‑231/10, not published, EU:T:2013:560, paragraph 36).53The applicant relies on certain features of shape as distinctive features of the earlier design on which it argues the similarities between the designs at issue are based. These are the ‘X’ shape between the rear fairing and the under-seat assembly, the inverted ‘Ω’ shape between the under-seat assembly and the front shield, and the arrow shape of the front shield, to which the Tribunale di Torino (District Court, Turin, Italy), in a dispute between the intervener and the applicant, added the teardrop shape of the fairing by Judgment No 1900/2017 of 6 April 2017 (‘the judgment of the District Court, Turin’), upheld by the Corte d’appello di Torino (Court of Appeal, Turin, Italy) by Judgment No 677/2019 of 12 December 2018 (‘the judgment of the Court of Appeal, Turin’). It should be noted, however, that the applicant failed to demonstrate either that the informed user would actually recognise that those features dominated the appearance of the earlier design, or that such features were also present in the contested design and had an influence on the appearance of that design comparable to that which they were alleged to have on the earlier design.54Lastly, it should be noted that the applicant’s arguments that, first, the features common to the designs at issue have also been present in the other versions of the Vespa scooter since its creation and first marketing by the applicant, both of which date back to 1945 and 1946, and, second, the Vespa S scooter design includes, in particular, a square headlight and rectilinear features are ineffective. For the reasons set out in paragraphs 38 and 49 above, those arguments are irrelevant for the purposes of examining the individual character of the contested design, which must be assessed solely in relation to the earlier design, chosen by the applicant, over any previous presence in the design corpus, in support of the application for a declaration of invalidity.55In the second place, as regards the applicant’s argument that the differences highlighted by the Board of Appeal essentially relate to details of minor importance, it should be noted that differences are insignificant in the overall impression produced by the designs at issue where they are not sufficiently pronounced to distinguish the goods at issue in the perception of the informed user or offset the similarities found between those designs (see, to that effect, judgment of 21 November 2013, El Hogar Perfecto del Siglo XXI v OHIM – Wenf International Advisers (Corkscrew), T‑337/12, EU:T:2013:601, paragraphs 49 to 54).56The applicant cannot effectively rely on the fact that the differences observed by the Board of Appeal are of little relevance in the context of a theoretical examination and even less decisive in a ‘real-life examination’ of the designs at issue on the ground that, when using it, the informed user would view the scooter at an angle of between 45° and 60°.57Firstly, contrary to the applicant’s assertions, for the assessment of the perception by the informed user of the appearance of the designs at issue, decisive weight must not be attached to the perspective during use of the goods into which the designs at issue are intended to be incorporated, inasmuch as the informed user also bases his decision to purchase and his decision to use the goods concerned on the design of those goods (see, to that effect, judgment of 21 May 2015, Senz Technologies v OHIM – Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 97 (not published)).58Secondly, after a detailed comparison of the front, side and rear views of the designs at issue, the Board of Appeal correctly observed that the differences between them were numerous and significant and would not escape the attention of an informed user, who, as has been noted in paragraph 43 above, is familiar with the various designs in the sector concerned, has a certain degree of knowledge of the components normally included in those designs and, because of his interest in the goods concerned, can be understood as a user who is both particularly observant and particularly attentive and sensitive to the design and aesthetics of the goods concerned.59Thirdly, according to case-law, the more the designer’s freedom in developing a design is restricted, the more likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. Conversely, the greater the designer’s freedom in developing a design, the less likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user (see, to that effect, judgment of 18 July 2017, Chanel v EUIPO – Jing Zhou and Golden Rose 999 (Ornamentation), T‑57/16, EU:T:2017:517, paragraph 30). In the present case, however, the differences between the designs at issue, as observed by the Board of Appeal in paragraphs 44 to 47 of the contested decision and which also concern features in respect of which the designer’s freedom may be expressed, are numerous and significant, so that the degree of freedom of the designer, which was defined as at least average, cannot affect the conclusion as to the overall impression produced by each of those designs.60The differences concerning the headlight, the front shield, the central element visible on the front shield, the air intake or the protective grille for the horn, the indicators and the profile of the lower part of the mudguard strengthen the angular look of the contested design in relation to the earlier design, which is characterised by a more curved appearance. Similarly, the shape of the rear fairing – a clearly tapered semicircle in the earlier design and strictly geometric in the contested design – confirms that perception. In addition, the fairing, which leaves the wheel completely uncovered in the contested design, which is not the case in the earlier design, the design and position of the lights, which are generally the same size, form a whole and are positioned on the lower edge of the body panel in the contested design, whereas they have clearly different dimensions, are separated and placed in different positions in the earlier design, and the design of the passenger grab rail, which is vertical in the contested design and essentially horizontal in the earlier design, are also significant differences which influence the overall impression produced by each of the designs at issue.61It follows that the differences which the Board of Appeal correctly observed between the designs at issue, which also relate to the elements on which the applicant relies as being the distinctive features of the earlier design, can be perceived by the informed user and influence the overall impression on that user created by the designs at issue, irrespective of the perspective from which those designs will be observed by the informed user.62In the third place, without raising a separate plea in law alleging that the statement of reasons for the contested decision is defective, the applicant argues that the Board of Appeal failed to appropriately state the reasons why it departed from the findings of fact already made by the Invalidity Division. That argument cannot succeed. The Board of Appeal, which is not bound by the findings of fact made by the Invalidity Division, explained to the requisite legal standard the reasons, set out in paragraphs 58 to 61 above, why, following the examination of the substance of the appeal and an objective technical assessment of the differences between the designs at issue, it had reached conclusions which differed from those of the Invalidity Division.63It is apparent from all of the foregoing that the Board of Appeal did not make an error of assessment in taking the view, in paragraphs 49 and 51 of the contested decision, that the contested design and the earlier design produced different overall impressions on the informed user and in concluding that the contested design did not lack individual character for the purposes of Article 6 of Regulation No 6/2002 in relation to the earlier design.64It follows that the first plea in law must be rejected. Second plea in law, alleging infringement of Article 25(1)(e) of Regulation No 6/2002 65In support of its second plea in law, the applicant argues that the contested design is invalid, pursuant to Article 25(1)(e) of Regulation No 6/2002, in that it uses an earlier distinctive sign of which the applicant is the right holder.66It should be borne in mind that Article 25(1)(e) of Regulation No 6/2002 provides that a design may be declared invalid if a distinctive sign is used in a subsequent design, and EU law or the law of the Member State governing that sign confers on the right holder of the sign the right to prohibit such use.67According to case-law, an application, based on the ground for invalidity specified in Article 25(1)(e) of Regulation No 6/2002, for a declaration that a Community design is invalid can succeed only if it is found that the relevant public will form the impression that use is made, in that Community design, of the distinctive sign relied on in support of the application for a declaration of invalidity (judgment of 12 May 2010, Beifa Group v OHIM – Schwan-Stabilo Schwanhäußer (Instrument for writing), T‑148/08, EU:T:2010:190, paragraph 105). The examination of that ground for invalidity must be based on the perception by the relevant public of the distinctive sign relied on in support of that ground, as well as on the overall impression which the sign leaves in the mind of the public (judgment of 12 May 2010, Instrument for writing, T‑148/08, EU:T:2010:190, paragraph 120).68As it confirmed at the hearing, the sign relied on by the applicant in support of the present plea in law is the earlier mark, constituted by the three-dimensional scooter shape which is also protected by the earlier design, a mark which has allegedly been recognised and used in Italy since 2005 without, as of the date of the contested decision, having been registered.69Under Article 2 of the Codice della proprietà industriale (Italian Industrial Property Code), industrial property rights are acquired according to the methods provided for by law, and distinctive signs other than registered trade marks are protected where the legal requirements laid down for that purpose are met. According to the relevant Italian law and case-law, an unregistered earlier national mark is protected where it has the properties of novelty and originality specific to a registered trade mark. If it has been the subject of earlier use which is well known, which should be understood as meaning actual knowledge on the part of the relevant public, the earlier mark in question prevents the registration of a later sign which is identical or similar to it or, where applicable, causes the registration of that sign to be invalid.70With regard to the applicant’s argument that the Board of Appeal based its decision on a personal interpretation of the applicable provisions and a subjective assessment of the evidence which the applicant had provided, it must be pointed out that that argument cannot succeed. The Board of Appeal examined whether, as of the date of filing of the contested design, the earlier mark was used in such a way as to have become well known to the relevant Italian public in order to be validly claimed, in view of Italian law and case-law, for the purposes of the application of Article 25(1)(e) of Regulation No 6/2002.71In its examination, the Board of Appeal took into consideration the evidence produced by the applicant. On the one hand, it correctly considered irrelevant, firstly, the data on sales and market share and the information concerning the applicant’s advertising activity, inasmuch as they did not relate exclusively to the earlier mark, and, secondly, the sales certificates, which did not establish sufficiently precisely if they related only or exclusively to Italy, which was the territory in which the earlier mark was supposedly protected.72The Board of Appeal, on the other hand, examined the opinion poll produced by the applicant as proof of the fact that the earlier mark was the subject of actual knowledge on the part of the relevant Italian public and that, in particular, the three-dimensional scooter shape which it protected was attributed to the applicant and had acquired a distinctive character through use.73With regard to the intervener’s argument that the earlier mark could not be validly claimed by the applicant for the purposes of the application of Article 25(1)(e) of Regulation No 6/2002, it should be noted that the judgment of the District Court, Turin, upheld by the judgment of the Court of Appeal, Turin, recognised the existence and validity of the earlier mark. However, that finding is not yet final, as the intervener indicates in its responses of 16 May 2019 to the question put by the Court.74Consequently, irrespective of whether the earlier mark can validly be claimed, in view of Italian law, for the purposes of the application of Article 25(1)(e) of Regulation No 6/2002, it is necessary to examine whether the Board of Appeal was fully entitled to reject the application for a declaration of invalidity in respect of the contested design on the basis of that provision, after having taken the view that the earlier mark was not used in the contested design and that there was no likelihood of confusion, on the part of the relevant public, of the earlier mark with the contested design. Relevant public 75In analysing the conflict between the contested design and the earlier mark, it is necessary to take into consideration the average consumer, who is the consumer deemed to be reasonably well informed and reasonably observant and circumspect, forming part of the relevant public interested in the goods to which the earlier mark relates, namely ‘scooters’ as a subcategory of the category ‘Mopeds; motorcycles’, as is apparent from the contested decision and the confirmations obtained from the parties at the hearing.76It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods in question (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26).77In the present case, inasmuch as scooters are relatively expensive, durable goods, the average consumer will display a high level of attention, as the Board of Appeal observed in paragraph 75 of the contested decision.78Accordingly, it is in view of the average consumer as defined in paragraphs 75 and 77 above, who will also make his purchasing decision on the basis of aesthetic considerations, that it is necessary to examine whether the earlier mark is used in the contested design and whether there exists a likelihood of confusion on the part of the relevant public. Use of the earlier mark in the contested design and existence of a likelihood of confusion on the part of the relevant public 79In the first place, inasmuch as, as was recalled in paragraph 68 above, the applicant limited the right on the basis of which it applied for a declaration of invalidity in respect of the contested design, under Article 25(1)(e) of Regulation No 6/2002, to the earlier mark, the possible presence, in Vespa scooters prior to 2005, of features common to the earlier mark is not relevant for the purposes of assessing the use of that mark in the contested design under Article 25(1)(e) of Regulation No 6/2002, as was correctly indicated by the Board of Appeal.80In the second place, with regard to the elements on which the applicant relies as being the distinctive features of the three-dimensional scooter shape protected by the earlier mark which it argues were unfairly reproduced in the contested design, namely the ‘X’ shape between the rear fairing and the under-seat assembly, the inverted ‘Ω’ shape between the under-seat assembly and the front shield, and the arrow shape of the front shield, to which the judgment of the District Court, Turin added the teardrop shape of the fairing, it should be noted that the assessment of the possible use of those features in the contested design implies a comparison between the shape protected by that design and that of the earlier mark.81As the Board of Appeal remarked in paragraphs 84 to 86 of the contested decision, when he observes the three-dimensional scooter shape protected by the earlier mark and that of the contested design, the average consumer, who is not an expert with in-depth technical skills, will not be able to spontaneously identify the ‘X’ shape between the rear fairing and the under-seat assembly or the inverted ‘Ω’ shape between the under-seat assembly and the front shield, nor will he automatically notice the arrow shape of the front shield, even when displaying a high level of attention. As to the fairing, he will rather notice the difference between the tapered shape of the fairing of the earlier mark, where that of the contested design looks more like a semicircle.82More generally, irrespective of whether the relevant public will distinguish the elements relied on by the applicant, as mentioned in paragraph 81 above, as being the distinctive features of the earlier mark, the average consumer, who displays a high level of attention, will perceive the style, lines and look which characterise the three-dimensional scooter shape protected by the earlier mark as different, visually, from those of the contested design.83Consequently, the Board of Appeal’s observation that there are differences between the appearance of the shapes of the earlier mark and those of the contested design must be upheld. Those differences also relate to the elements on which the applicant relies as being the distinctive features of the earlier mark.84To compensate for such visual differences, the applicant cannot effectively rely either on the identity of the goods to which the earlier mark and the contested design relate, or on the well-known use on the Italian market of the three-dimensional scooter shape protected by the earlier mark in respect of those goods, as shown by the opinion poll produced by the applicant.85As the Board of Appeal observed in paragraph 87 of the contested decision, contrary to the applicant’s assertions, the information contained in that opinion poll does not show whether the relevant public actually associates the three-dimensional scooter shape protected by the earlier mark with the contested design and, thus, establish that the earlier mark is used in the contested design.86In the third place, it should be noted that Article 25(1)(e) of Regulation No 6/2002 applies where use is made not only of a sign which is identical to that relied upon in support of the application for a declaration of invalidity, but also of a sign which is similar (judgments of 12 May 2010, Instrument for writing, T‑148/08, EU:T:2010:190, paragraph 52, and of 9 September 2015, Dairek Attoumi v OHIM –Diesel (DIESEL), T‑278/14, not published, EU:T:2015:606, paragraph 85), if a likelihood of confusion on the part of the relevant public can be established between those signs (judgment of 12 May 2010, Instrument for writing, T‑148/08, EU:T:2010:190, paragraph 54).87According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to that case-law, the likelihood of confusion must be assessed globally, according to the perception that the relevant public has of the signs and of the goods or services in question and taking into account all relevant factors in the case, in particular the interdependence between the similarity of the signs and that of the goods or services identified (see judgment of 25 April 2013, Chen v OHIM – AM Denmark (Cleaning device), T‑55/12, not published, EU:T:2013:219, paragraph 44 and the case-law cited).88However, if it is found that the relevant public will not form the impression that, in the Community design in respect of which the application for a declaration of invalidity has been submitted, use is made of the distinctive sign relied on in support of that application, any likelihood of confusion can clearly be ruled out (see, to that effect, judgment of 12 May 2010, Instrument for writing, T‑148/08, EU:T:2010:190, paragraph 106).89In the judgment of the District Court, Turin, the national court concluded that the contested design displayed significant aesthetic differences in relation to the earlier mark, differences which also related to the distinctive features of that mark and were capable of excluding any likelihood of confusion on the part of the relevant public, so that the claim that the contested design infringed the earlier mark had to be rejected. Those conclusions contained in the judgment of the District Court, Turin were not contested by the applicant or the intervener and therefore acquired the force of res judicata, as was noted in the judgment of the Court of Appeal, Turin and as was confirmed by the parties in their responses of 16 and 17 May 2019 to the question put by the Court.90It is apparent from all of the foregoing that, due to (i) the overall visual impression produced by the earlier mark, which is different from that emanating from the contested design, and (ii) the importance of aesthetics in the decision which he makes, the average consumer, who displays a high level of attention, will rule out the possibility that the earlier mark may be used in the contested design, despite the fact that the goods concerned are identical.91Consequently, the Board of Appeal did not make an error of assessment in taking the view, in paragraphs 73 and 88 of the contested decision, that there was no likelihood of confusion on the part of the relevant public, which included the likelihood of association, for the purposes of the application of Article 25(1)(e) of Regulation No 6/2002.92It follows that the second plea in law must be rejected. Third plea in law, alleging infringement of Article 25(1)(f) of Regulation No 6/2002 93In its third plea in law, the applicant argues, in essence, that the contested design should also be declared invalid on the basis of Article 25(1)(f) of Regulation No 6/2002, pursuant to Italian and French copyright law and principles.94With regard to the alleged use of an intellectual work protected by Italian copyright, namely legge n. 633 – Protezione del diritto d’autore e di altri diritti connessi al suo esercizio (Law No 633 on the protection of copyright and other rights relating to its exercise) of 22 April 1941 (GURI No 166 of 16 July 1941), as amended, the applicant referred, in the application, to ‘the Vespa shape’ or to ‘the Vespa’. The applicant maintains that the artistic and creative core of ‘the Vespa’, constituted by the features of shape referred to in paragraphs 10 and 53 above, dates back to 1945 and 1946 and that that creative heart is protected by Italian copyright, without its being possible to distinguish between the different Vespa moped designs, as was recognised by the judgment of the District Court, Turin. By virtue of those features, which have remained substantially the same since the creation and first marketing by the applicant of the first design, the Vespa has become an icon, a symbol of Italian customs and artistic design. At the hearing, the applicant stated that the earlier design encompasses the artistic and creative core of the original Vespa, namely the abovementioned features of shape.95With regard to the alleged use of an intellectual work protected by French copyright, the applicant refers to the judgment of 7 February 2013 of the tribunal de grande instance de Paris (Regional Court, Paris, France), which also recognised that ‘the Vespa’, and in particular that corresponding to the earlier design, met the requirements to be protected by French copyright, pursuant to Article L 111-1 of the code de la propriété intellectuelle français (French Intellectual Property Code), due to its specific overall look and particular shape, which had a ‘rounded, feminine and “vintage” character’, which bore the imprint of its author’s aesthetic choices and personality.9697First of all, it should be borne in mind that, under Article 25(1)(f) of Regulation No 6/2002, a Community design may be declared invalid if it constitutes an unauthorised use of a work protected under the copyright law of a Member State. Accordingly, the protection may be invoked by the copyright holder when, in accordance with the law of the Member State conferring the protection on him, he can prevent the use of the design in question (see, to that effect, judgment of 6 June 2013, Watch faces, T‑68/11, EU:T:2013:298, paragraph 79).98Next, according to case-law, an applicant relying on the ground for invalidity referred to in Article 25(1)(f) of Regulation No 6/2002 must provide evidence to demonstrate that the contested design constitutes an unauthorised use of a work protected under the copyright law of the Member State concerned (order of 17 July 2014, Kastenholz v OHIM, C‑435/13 P, not published, EU:C:2014:2124, paragraph 55).99Lastly, it is apparent from a combined reading of the provisions of Article 25(1)(f) and (3) of Regulation No 6/2002 and of Article 28(1)(b)(iii) of Regulation No 2245/2002, first, that a Community design may be declared invalid where it constitutes an unauthorised use of a work protected under the copyright law of a Member State, secondly, that an application for a declaration of invalidity may be made solely by the holder of the copyright and, thirdly, that that application must contain the representation and particulars of the protected work on which it is based and particulars showing that the applicant for a declaration of invalidity is the holder of the copyright (judgment of 23 October 2013, Viejo Valle v OHIM –Établissements Coquet (Cup and saucer with grooves), T‑566/11 and T‑567/11, EU:T:2013:549, paragraph 47).100In the first place, it is necessary to identify the work on which the applicant relies for the purposes of the application of Article 25(1)(f) of Regulation No 6/2002, which, although it is protected by Italian and French copyright is – according to the applicant – unfairly used in the contested design.101In that regard, on the one hand, the Board of Appeal observed, in paragraph 99 of the contested decision, that the only work identified by the applicant with the necessary precision for the purposes of the application of Article 25(1)(f) of Regulation No 6/2002 was that corresponding to the earlier design, inasmuch as the work in respect of which it was possible to rely on the ground for invalidity referred to in Article 25(1)(f) of Regulation No 6/2002 could not be an accumulation of stylistic versions of a product over many decades. On the other hand, the Board of Appeal attributed creativity and artistic value to the work corresponding to the earlier design, relying on the conclusions of the judgment of the District Court, Turin, which referred to the judgment of 7 February 2013 of the tribunal de grande instance de Paris (Regional Court, Paris). It observed that those judgments recognised that the scooter design corresponding to the earlier design was a work protected by Italian and French copyright.102Those observations must be upheld, in that they restate the principle that copyright protects the expression of ideas and not the ideas themselves. The earlier design encompasses the core of the original ‘Vespa’, namely the features of shape referred to in paragraphs 10 and 53 above, and it is as a concrete expression of that artistic and creative core that the earlier design is capable of protection by Italian copyright. Similarly, the earlier design has a specific overall look and a particular shape, which has a ‘rounded, feminine and “vintage” character’, which are capable of protection by French copyright.103In the second place, it is necessary to verify whether there is an ‘unauthorised use’ of the earlier design, as a work protected by Italian and French copyright, in the contested design for the purposes of Article 25(1)(f) of Regulation No 6/2002.104Under Italian copyright, the use of the artistic and creative core constituted by the features of shape referred to in paragraphs 10 and 53 above cannot be discerned in the contested design. Between the rear fairing and the under-seat assembly and between the under-seat assembly and the front shield, the lines of the contested design rather have an angular look. Its pointed front shield represents a ‘necktie’ up to the mudguard, rather than an arrow. As to the fairing, the shape of that of the contested design is not tapered, unlike the teardrop shape of the fairing of the earlier design.105Neither can the specific overall look and particular shape, which has a ‘rounded, feminine and “vintage” character’, of the earlier design be found in the contested design, which is characterised by straight lines and angles, so that the impressions which emanate from the work corresponding to the earlier design and from the contested design are different, as the Board of Appeal observed in paragraph 114 of the contested decision.106It follows from all the foregoing considerations that the Board of Appeal did not make an error of assessment in considering, in paragraph 115 of the contested decision, on the basis of the evidence available to it, that the scooter design corresponding to the earlier design, protected by Italian and French copyright, was not the subject of an unauthorised use in the contested design.107It follows that the third plea in law must be rejected.108Since the applicant has been unsuccessful in all its pleas in law, the present action must be dismissed. Costs 109Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.110Since the applicant has been unsuccessful in the present case, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.On those grounds,THE GENERAL COURT (Sixth Chamber)hereby: 1. Dismisses the action; 2. Orders Piaggio & C. SpA to pay the costs. BerardisPapasavvasSpineanu-MateiDelivered in open court in Luxembourg on 24 September 2019.[Signatures]( *1 ) Language of the case: Italian. | 06e90-eb78fdc-4895 | EN |
Fine imposed on HSBC group for anticompetitive practices in the interest rate derivatives sector is annulled | 24 September 2019 ( *1 )(Competition — Agreements, decisions and concerted practices — Euro Interest Rate Derivatives sector — Decision establishing an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Manipulation of the Euribor interbank reference rates — Exchange of confidential information — Restriction of competition by object — Single and continuous infringement — Fines — Basic amount — Value of sales — Article 23(2) of Regulation (EC) No 1/2003 — Obligation to state reasons)In Case T‑105/17, HSBC Holdings plc, established in London (United Kingdom), HSBC Bank plc, established in London, HSBC France, established in Paris (France),represented by K. Bacon QC, D. Bailey, Barrister, M. Simpson, Solicitor, and Y. Anselin and C. Angeli, lawyers,applicants,v European Commission, represented by M. Farley, B. Mongin and F. van Schaik, acting as Agents, and B. Lask, Barrister,defendant,APPLICATION pursuant to Article 263 TFEU seeking, first, annulment in part of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.39914 — Euro Interest Rate Derivatives) and, second, a variation of the amount of the fine imposed on the applicants,THE GENERAL COURT (Second Chamber, Extended Composition),composed of M. Prek (Rapporteur), President, E. Buttigieg, F. Schalin, B. Berke and J. Costeira, Judges,Registrar: M. Marescaux, Administrator,having regard to the written part of the procedure and further to the hearing on 19 March 2019,gives the following Judgment I. Background to the dispute 1By decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39914 — Euro Interest Rate Derivatives) (‘the contested decision’), the European Commission found that the applicants, HSBC Holdings plc, HSBC Bank plc and HSBC France, had infringed Article 101 TFEU and Article 53 of the EEA Agreement by taking part, from 12 February to 27 March 2007, in a single and continuous infringement with the object of distorting the normal course of pricing on the market for Euro Interest Rate Derivatives (‘EIRD’ or ‘EIRDs’) linked to the Euro Interbank Offered Rate (‘Euribor’) and/or the Euro Over-Night Index Average (‘EONIA’) (Article 1(b) of the contested decision) and imposed on them jointly and severally a fine of EUR 33606000 (Article 2 (b) of the contested decision).2The HSBC group (‘HSBC’) is a banking group, and one of its activities is global banking and markets. HSBC Holdings is the ultimate parent company of HSBC. HSBC Holdings is the parent company of HSBC France, which is the parent company of HSBC Bank. HSBC France and HSBC Bank are responsible for the negotiation of EIRDs. HSBC France is responsible for submitting rates to the Euribor panel (recitals 58 to 61 of the contested decision).3On 14 June 2011, the Barclays banking group (Barclays plc, Barclays Bank plc, Barclays Directors Ltd, Barclays Group Holding Ltd, Barclays Capital Services Ltd and Barclays Services Jersey Ltd) (‘Barclays’) applied to the Commission for the grant of a marker under the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), informing it of the existence of a cartel in the EIRD sector and expressing its wish to cooperate. On 14 October 2011, Barclays was granted conditional immunity (recital 86 of the contested decision).4Between 18 and 21 October 2011, the Commission carried out inspections at the premises of a number of financial institutions in London (United Kingdom) and Paris (France), including the applicants’ premises (recital 87 of the contested decision).5On 5 March and 29 October 2013, pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), the Commission initiated infringement proceedings against the applicants and Barclays, Crédit agricole SA and Crédit agricole Corporate and Investment Bank (together ‘Crédit agricole’), Deutsche Bank AG, Deutsche Bank Services (Jersey) Ltd and DB Group Services (UK) Ltd (together ‘Deutsche Bank’), JP Morgan Chase & Co., JP Morgan Chase Bank National Association and JP Morgan Services LLP (together ‘JP Morgan’), Royal Bank of Scotland plc and the Royal Bank of Scotland Group plc (together ‘RBS’), and Société générale (recital 89 of the contested decision).6Barclays, Deutsche Bank, Société générale and RBS wished to participate in a settlement procedure pursuant to Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), as amended. HSBC, Crédit agricole and JP Morgan decided not to participate in that settlement procedure.7On 4 December 2013, the Commission adopted, with regard to Barclays, Deutsche Bank, Société générale and RBS, decision C(2013) 8512 final, relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39914, Euro Interest Rate Derivatives (EIRD)(Settlement)) (‘the settlement decision’), by which it concluded that those undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in a single and continuous infringement with the object of distorting the normal course of pricing on the EIRD market (recital 95 of the contested decision). A. The administrative procedure which led to the contested decision 8On 19 March 2014, the Commission sent a statement of objections to the applicants, and to Crédit agricole and JP Morgan (recital 98 of the contested decision).9The applicants were able to consult the accessible parts of the Commission’s file on DVDs, and their legal representatives received further access to the file at the Commission premises (recital 99 of the contested decision). The applicants also had access to the statement of objections sent to the settling parties, the replies of those parties and the settlement decision (recital 100 of the contested decision).10On 14 November 2014, the applicants submitted their written observations on the statement of objections and presented their views orally at the hearing which took place on 15 to 17 June 2015 (recital 104 of the contested decision).11On 6 April 2016, the Commission amended the settlement decision as regards the determination of the amount of Société générale’s fine. The applicants had access to the amending decision, the underlying correspondence and the corrected financial data submitted by Société générale (recitals 105 and 106 of the contested decision). B. Contested decision 12On 7 December 2016, the Commission adopted the contested decision on the basis of Articles 7 and 23 of Regulation No 1/2003. Article 1(b) and Article 2(b) of that decision are worded as follows:‘Article 1The following undertakings have infringed Article 101 of the Treaty and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement regarding Euro Interest Rate Derivatives covering the entire EEA, which consisted of agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the EIRD sector:…(b) [the applicants] from 12 February 2007 to 27 March 2007; …Article 2For the infringement referred to in Article 1, the following fines are imposed:(b) [the applicants] jointly and severally liable: 33606000 EUR’. 1. Relevant products 13The infringements at issue relate to EIRDs, that is to say Euro Interest Rate Derivatives linked to Euribor or EONIA.14Euribor is a set of benchmark interest rates intended to reflect the cost of interbank loans frequently used on the international capital markets. It is defined as an index of the rate at which euro interbank term deposits are offered by one prime bank to another prime bank within the euro area. Euribor is calculated on the basis of the average of the prices offered daily by a panel — composed of 47 prime banks during the period concerned by the contested decision, including the banks referred to in paragraph 5 above — submitted to Thomson Reuters acting as the calculation agent to the European Banking Federation (‘EBF’) between 10.45 a.m. and 11.00 a.m. The banks provide contributions for the 15 different Euribor interest rates, which vary according to their term which ranges from 1 week to 12 months. EONIA fulfils an equivalent function to Euribor, but with regard to daily rates. It is calculated by the European Central Bank (‘ECB’) on the basis of an average of the rates for unsecured interbank deposits from the same panel of banks as is used to set Euribor (recitals 20 to 27 of the contested decision).15The most frequent EIRDs are forward rate agreements, interest rate swaps, interest rate options and interest rate futures (recitals 4 to 10 of the contested decision). 2. Conduct alleged against the applicants 16In recital 113 of the contested decision the Commission described the conduct of the banks referred to in paragraph 5 above as follows:‘Barclays, Deutsche Bank, JPMorgan Chase, Société générale, Crédit agricole, HSBC and RBS have participated in a series of bilateral contacts in the EIRD sector that largely consisted of the following practices between different parties.(a)On occasions, certain traders employed by different parties communicated and/or received preferences for an unchanged, low or high fixing of certain Euribor tenors. These preferences depended on their trading positions/exposures.(b)On occasions, certain traders of different parties communicated and/or received from each other detailed not publicly known/available information on the trading positions or on the intentions for future Euribor submissions for certain tenors of at least one of their respective banks.(c)On occasions, certain traders also explored possibilities to align their EIRD trading positions on the basis of such information as described under (a) or (b).(d)On occasions, certain traders also explored possibilities to align at least one of their banks’ future Euribor submissions on the basis of such information as described under (a) or (b).(e)On occasions, at least one of the traders involved in such discussions approached the respective bank’s Euribor submitters, or stated that such an approach would be made, to request a submission to the EBF’s calculation agent towards a certain direction or at a specific level.(f)On occasions, at least one of the traders involved in such discussions stated that he would report back, or reported back on the submitter’s reply before the point in time when the daily Euribor submissions had to be submitted to the calculation agent or, in those instances where that trader had already discussed this with the submitter, passed on such information received from the submitter to the trader of a different party.(g)On occasions, at least one trader of a party disclosed to a trader of another party other detailed and sensitive information about his bank’s trading or pricing strategy regarding EIRDs.’17In recital 114 of the contested decision, the Commission added that, ‘in addition, on occasions certain traders employed by different parties discussed the outcome of the Euribor rate setting, including specific banks’ submissions, after the Euribor rates of a day had been set and published’.18The Commission found that those instances of conduct formed a single and continuous infringement.19In order to substantiate that finding, in the first place, the Commission declared that those instances of conduct had a single economic aim (recitals 444 to 450 of the contested decision) of reducing the cash flows which the participants would have to pay under the EIRDs or increasing those which they were to receive. In the second place, it declared that the various instances of conduct formed a common pattern of behaviour, in so far as a stable group of individuals was involved in the cartel, the parties had followed a very similar pattern in their anticompetitive activities and the various discussions between the parties covered the same or overlapping topics and had therefore the same or almost the same content (recitals 451 to 456 of the contested decision). In the third place, it declared that the traders participating in the anticompetitive exchanges were skilled professionals and knew or should have been aware of the general scope and the essential characteristics of the cartel as a whole (recitals 457 to 483 of the contested decision).20It found that HSBC had participated in that single and continuous infringement, emphasising that the bilateral contracts with Barclays themselves constituted an infringement of Article 101(1) TFEU (recital 486 of the contested decision).21As regards the duration of HSBC’s participation, the Commission took 12 February 2007 as its starting date (recital 620 of the contested decision) and 27 March 2007 as its end date (recital 625 of the contested decision). 3. Calculation of the amount of the fine (a) Basic amount of the fine 22As regards, in the first place, the determination of the value of sales of the banks that participated in the cartel, since EIRDs do not generate any sales in the usual sense of the term, the Commission determined the value of sales by means of a proxy. Furthermore, in the light of the circumstances in the present case, it concluded that it was preferable not to use an annualised proxy, but to take as its basis a proxy based on the months corresponding to the banks’ participation in the infringement (recital 640 of the contested decision). It pointed out that it was not required to apply a mathematical formula and that it had a margin of discretion when determining the amount of each fine (recital 647 of the contested decision).23The Commission considered it appropriate to use as its proxy the cash receipts generated by the cash flows that each bank received from their portfolio of EIRDs linked to any Euribor tenor and/or EONIA and entered into with EEA-located counterparties (recital 641 of the contested decision), to which a uniform reduction factor of 98.849% was applied.24The Commission therefore took as the applicants’ value of sales the amount of EUR 192081799 (recital 648 of the contested decision).25As regards, in the second place, the gravity of the infringement, the Commission used a gravity factor of 15% as the infringement related to price coordination and price-fixing arrangements. It added a gravity factor of 3% by reference to the fact that the cartel concerned the whole of the EEA and had related to rates that were relevant for all EIRDs and that, as those rates related to the euro, they were of fundamental importance to the harmonisation of financial conditions in the internal market and for banking activities in Member States (recitals 720 and 721 of the contested decision).26As regards, in the third place, the duration of the infringement, the Commission stated that it had taken into account the duration of the participation of each participant in the cartel on ‘a rounded down monthly and pro rata basis’, which led to a multiplier of 0.08% being applied in respect of the applicants (recitals 727 to 731 of the contested decision).27In the fourth place, the Commission added an additional amount of 18% of the value of sales, described as an ‘entry fee’ in so far as the infringement consisted of horizontal price-fixing, in order to deter undertakings from participating in such practices, irrespective of the duration of the infringement (recitals 732 to 734 of the contested decision).28The Commission thus set the basic amount of the fine to be imposed on the applicants at EUR 37340000 (recital 735 of the contested decision). (b) Final amount of the fine 29As regards the setting of the final amount of the fine, the Commission found that HSBC had a more peripheral or minor role in the infringement that could not be compared with that of the main players and granted it a 10% reduction of the basic amount of the fine (recitals 747 to 749 of the contested decision). Article 2(1)(b) of the contested decision therefore imposes on the applicants a fine of a final amount of EUR 33606000. II. Procedure and forms of order sought 30By application lodged at the Court Registry on 17 February 2017, the applicants brought the present action.31On a proposal from the Second Chamber of the Court, the Court decided, pursuant to Article 28 of the Rules of Procedure of the General Court, to assign the case to a Chamber sitting in extended composition.32On a proposal from the Judge-Rapporteur, the Court (Second Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties on 30 January 2019. On 14 and 15 February 2019, the Commission and the applicants respectively replied to the questions put to them by the Court.33On 8 March 2019, the Court sent to the parties a further question to be answered at the hearing.34On 18 March 2019, the Court decided, after hearing the parties, to hold the hearing in camera pursuant to Article 109 of the Rules of Procedure.35At the hearing on 19 March 2019, the parties presented oral argument and replied to the Court’s oral questions. At that hearing, the Commission was asked to provide additional explanations on the determination of the 98.849% reduction factor which it had applied to the cash receipts.36On 2 April 2019, the Commission replied to the Court’s question.37On 10 May 2019, the applicants submitted their observations on the Commission’s reply.38On 28 May 2019, the Commission submitted its observations.39By decision of 4 June 2019, the Court (Second Chamber, Extended Composition) closed the oral part of the procedure.40The applicants claim that the Court should:–annul Article 1 of the contested decision;in the alternative, annul Article 1(b) of the contested decision;in the further alternative, annul in part Article 1(b) of the contested decision in so far as it holds that the applicants participated in a single and continuous infringement;annul Article 2(b) of the contested decision;in the alternative, substantially reduce the fine imposed on them under Article 2(b) of the contested decision to such amount as the Court may deem appropriate;order the Commission to pay the costs or, in the alternative, an appropriate proportion of their costs.41The Commission contends that the Court should:dismiss the application;order the applicants to pay the costs. III. Law 42In their action, the applicants seek both the annulment of Article 1 and Article 2(b) of the contested decision and a variation of the amount of the fine imposed by Article 2(b) of that decision. A distinction will be drawn between, on the one hand, the examination of the application for annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision and, on the other hand, the examination of the application for annulment of Article 2(b) of that decision, by which the Commission imposed a fine of EUR 33606000 on the applicants, and the application for variation of the amount of that fine.43In so far as the applicants present both applications for annulment of the contested decision and for variation of the amount of the fine imposed, it should be noted, as a preliminary point, that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 47 and the case-law cited).44First, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the EU judicature, in law and in fact, in the light of the pleas raised by the applicant and taking into account all the relevant evidence submitted by the latter (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 48 and the case-law cited).45Nevertheless, it should be noted that in the context of a review of legality referred to in Article 263 TFEU the EU judicature cannot substitute their own reasoning for that of the author of the act at issue (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited).46Second, the scope of the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 193 and the case-law cited).47By contrast, the scope of that unlimited jurisdiction is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 76 and the case-law cited). A. The applications for annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision 48In support of their applications for annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision, the applicants put forward five pleas in law.49The first plea concerns the Commission’s finding of an infringement by object.50By the second, third and fourth pleas, the applicants challenge the Commission’s finding of a single and continuous infringement. The second plea concerns the Commission’s finding that the collusive arrangements established by HSBC and the other parties formed part of an overall plan pursuing a single aim. The third and fourth pleas concern, respectively, HSBC’s intention to contribute to that aim and its awareness of the conduct of the other participants in the infringement.51The fifth plea concerns the adoption of the contested decision subsequent to a settlement decision in which the Commission had already adopted a position on HSBC’s participation in the infringement at issue. The applicants infer from this that the Commission breached the principles of the presumption of innocence, good administration and rights of the defence. 1. The first plea in law, concerning the finding of an infringement by object within the meaning of Article 101(1) TFEU 52Since the matter at issue is the Commission’s characterisation of the infringement as an infringement by object, it should be noted that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, decision by an association of undertakings or concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition within the internal market.53In that regard, it is apparent from the Court of Justice’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 49, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 113; see also, to that effect, judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 34).54The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain types of collusion between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 50, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 114; see also, to that effect, judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 35).55Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 115).56Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 34; of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 52; and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 116).57According to the case-law of the Court of Justice, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 53, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 117; see also, to that effect, judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 36).58In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 37; of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 54; and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 118).59With regard, in particular, to the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which it intends to adopt on the common market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 32, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 119).60While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 33, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 120).61The Court of Justice has accordingly held that the exchange of information between competitors was liable to be incompatible with the competition rules if it reduced or removed the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted (judgments of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 89; of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 35; and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 121).62In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 122; see also, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 41).63Moreover, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article 101(1) TFEU to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 123; see also, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 36).64On the contrary, it is apparent from Article 101(1)(a) TFEU that concerted practices may have an anticompetitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 37, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 124).65In any event, Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 38 and 39, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 125).66Lastly, it should be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article 101(1) TFEU, implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 126).67In that regard, the Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on that market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 127).68It is in the light of those considerations that the Court must examine the first plea, in which the applicants challenge the finding of an infringement by object applied to each of the categories of conduct alleged by the Commission. They divide their argument into two parts, the first of which deals with conduct connected to the manipulation of submissions to Euribor on 19 March 2007 and the second of which deals with conduct not connected to that manipulation, namely exchanges between HSBC traders and traders from other banks relating to their trading positions and mids.69In Article 1 of the contested decision the Commission found that there had been an infringement of Article 101 TFEU consisting of ‘agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the EIRD sector’.70Those agreements and/or concerted practices alleged against the banks, including HSBC, were described in recitals 113, 358 and 392 of the contested decision. As the applicants rightly state, those agreements and practices can be sorted into three groups: first, those relating to the manipulations of submissions to Euribor (recitals 113(a), 358(a) and 392(a): exchanges relating to their preference of level of Euribor benchmark; recitals 113(d), 358(d) and 392(d): exchanges relating to the possibility of aligning their Euribor submissions; recitals 113(e), 358(e) and 392(e): contact between the trader involved and the Euribor submitter within the same bank; recitals 113(f), 358(f) and 392(f): agreements to report back on attempts to influence Euribor submissions), second, those relating to exchanges about EIRD trading positions (recitals 113(b), 358(b) and 392(b): exchanges relating to their respective trading positions and exposures; recitals 113(c), 358(c) and 392(c): exchanges relating to the possibility of aligning their trading positions); and, third, those relating to exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs (recitals 113(g), 358(g) and 392(g)).71The Court considers it appropriate to deal first with two comments from the Commission and the applicants.72In the first place, the Commission submits that the applicants are wrong to challenge the various forms of conduct alleged against HSBC on an individual basis and highlights their interrelated nature. In essence, it claims that it is artificial to draw distinctions between (i) the manipulation of 19 March 2007, (ii) exchanges about trading positions and (iii) exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs, more specifically EIRD mids in the present case.73However, such a criticism cannot be upheld. The distinction made by the applicants merely reproduces the distinction made by the Commission in the contested decision and referred to in paragraph 70 above. Moreover, it is apparent, in particular, from recitals 365, 387, 393 and 442 of the contested decision that the Commission considered that the object of that conduct was to restrict competition, not only collectively but also on an individual basis.74In the second place, the applicants observe that, in certain grounds of the contested decision, the Commission does not explain the existence of an object that restricts competition merely by stating that the practices at issue distorted the normal course of pricing components in the EIRD sector, but also by reference to a distortion of other trading conditions for EIRDs within the meaning of Article 101(1)(a) TFEU. They claim that, since no such finding appears in Article 1 of the contested decision, it cannot be taken into account for the purposes of explaining the Commission’s finding of restriction by object.75The Commission submits that the wording of the operative part of the contested decision does not preclude it from relying on the finding that other trading conditions were distorted, since that finding is clearly set out in the recitals of that decision.76It should also be pointed out that the enacting terms of an act are inextricably linked to the statement of reasons for them in the recitals, so that, if that act has to be interpreted, account must be taken of the reasons which led to its adoption (see order of 30 April 2007, EnBW Energie Baden-Württemberg v Commission, T‑387/04, EU:T:2007:117, paragraph 127 and the case-law cited). While it is true that only the operative part of a decision is capable of producing legal effects, the fact remains that assessments made in the grounds of a decision can be subject to judicial review by the EU judicature to the extent that, as grounds of a measure adversely affecting the interests of those concerned, they constitute the essential basis for the operative part of that measure or if those grounds are likely to alter the substance of what was decided in the operative part of the measure in question (see judgment of 1 July 2009, KG Holding and Others v Commission, T‑81/07 to T‑83/07, EU:T:2009:237, paragraph 46 and the case-law cited).77Consequently, in so far as the Commission highlighted, in support of its finding that competition had been restricted, not only price coordination and/or price fixing, but also distortion of other trading conditions in the EIRD sector, in particular in recitals 384, 388, 393, 415, 423 and 488 of the contested decision, there is nothing, in principle, to preclude that reasoning from being taken into account for the purposes of assessing the legality of Article 1 of the contested decision, even though the latter does not expressly refer to those trading conditions. (a) First part of the plea, disputing the finding of restriction of competition by object applied to the manipulation of Euribor on 19 March 2007 78As a preliminary point, the applicants submit that the banks compete on the EIRD market only when those contracts are entered into and only on the basis of the fixed rate which is the price of those contracts. They consider that the Commission’s argument that the objective of the parties to an EIRD is to optimise their cash flow ignores market making and hedging activities. They submit that the present case differs from that which gave rise to the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), in which the significance of market making activities was not discussed, whereas it follows therefrom that, for banks operating in that capacity, the fixed rate is determined differently and competition takes place only on the basis of that fixed rate.79As regards the manipulation of 19 March 2007, the applicants acknowledge, in essence, that the objective of the manipulation was to lower the three-month Euribor (‘3m Euribor’) on 19 March 2007 and that, in that context, a Barclays trader asked an HSBC trader to request the person responsible for submitting rates to issue a low quote on 19 March 2007, which he did. However, first, they deny that the objective of that manipulation was to distort EIRD pricing components and/or trading conditions and, second, they argue that the objective of manipulating cash flow is not anticompetitive.80In the first place, the applicants deny that that manipulation had as its object the coordination and/or fixing of EIRD pricing components, as the Commission pointed out in recital 411 of the contested decision, since that manipulation relates to the variable rate of EIRDs, whereas the price of the EIRD is the fixed rate. Similarly, the 3m Euribor is not a relevant factor for the determination of the price of EIRDs or a component of that price. In that regard, they maintain that the Commission’s argument that the variable rate is an element in the setting of the fixed rate when new EIRDs are entered into is necessarily based on new contracts being entered into following the manipulation. On the basis of a financial expert’s report compiled at their request, they maintain that it was disadvantageous to the traders concerned to adapt their trading positions in the light of planned manipulation. They conclude from this that recital 411 of the contested decision is vitiated by an error of law, a manifest error of assessment or an inadequate statement of reasons.81In the second place, the applicants argue that the contested decision seems to imply that the manipulation of 19 March 2007 — in addition to price fixing — constitutes an exchange of information on traders’ intentions with the result that the uncertainty inherent in the EIRD market was reduced. They claim that proof of that conduct with regard to HSBC’s traders was not adduced by the Commission. It has not been shown that those traders benefited from an informational asymmetry which would have enabled them to offer better conditions than their rivals. They deny that they are required to show that the collusion did not influence HSBC’s conduct in any way and state that it is for the Commission to prove the existence of an anticompetitive object.82In the third place, the applicants maintain that the reference in recital 388 of the contested decision to the fact that the manipulation constitutes the fixing of trading conditions within the meaning of Article 101(1)(a) TFEU cannot be taken into account since it does not appear in the operative part of the contested decision. They add that this aspect of the Commission’s reasoning is, in any event, vitiated by insufficient reasoning, since no explanation is provided. The use of that term is also incorrect since the rights and obligations of the parties under an agreement are not at issue.83In the fourth place, the applicants maintain that the objective of manipulating cash flows is not anticompetitive, since it was not achieved by an agreement that restricted competition between traders. They state that competition on the EIRD market occurs at the time EIRDs are concluded and not at the level of the cash flow that is paid or received under EIRDs. In essence, they deny that cash flows may have an indirect effect on the price of EIRDs.84The Commission contends that this part of the plea should be rejected.85This part of the plea concerns the characterisation of the manipulation of Euribor of 19 March 2007 as having an object that restricts competition. How HSBC participated in that manipulation is discussed, in particular, in recitals 271, 275, 289, 322, 328 and 329 of the contested decision.86It is apparent from those recitals that, in essence, that conduct consisted in submitting low quotes on 19 March 2007 for the 3m Euribor with a view to reducing that rate on that date for the purpose of making a gain on a category of derivatives falling due on that date as a result of the difference in rates (‘spread’) as compared with derivatives linked to EONIA.87More particularly, that manipulation consists principally in the manipulation of one type of EIRD, interest rate futures linked to the 3m Euribor. Essentially, under this type of contract one party, termed the buyer, receives the fixed rate during the contract, while the other party, termed the seller, receives a variable rate. The manipulation consisted of gradually gaining a very large ‘buyer’ exposure, in respect of which the bank thus receives the fixed rate and pays the variable rate, and reducing the level of the variable rate at the maturity date by concerted action.88The reference to derivatives linked to EONIA relates to the fact that participants in the cartel covered their ‘buyer’ exposure to futures linked to the 3m Euribor by opposite exposure, namely, in the present case, a swap with the same tenor linked to EONIA. As mentioned in paragraph 14 above, EONIA is a daily rate calculated by the ECB.89Thus, by artificially reducing the Euribor rate as compared with that of EONIA on 19 March 2007, the banks participating in the cartel could expect to make a financial gain.90It is apparent from recitals 257 and 258 of the contested decision that the idea for such manipulation dates from at least 1 February 2007, in discussions between traders from Deutsche Bank, Barclays and Société générale. It is apparent from recital 271 of that decision that, on 12 February 2007, a trader from Barclays informed a trader from HSBC of that plan and from recital 275 of that decision that a discussion also took place on the following day concerning that manipulation. In recital 289 of the contested decision, mention is made of a conversation of 28 February 2007 between those two same traders concerning the reduction of the spread between the 3m Euribor and EONIA. Lastly, in recital 322 of the contested decision, reference is made to a discussion of 19 March 2007 in which the trader from Barclays asks the trader from HSBC to request HSBC submitters to contribute a very low 3m Euribor quote, which the latter trader allegedly did successfully.91The applicants do not contest the truth of the facts found by the Commission. They take the view, rather, that those facts are not capable of explaining the Commission’s finding of restriction of competition by object.92It is apparent from recital 384 of the contested decision that the Commission concluded that the object of the manipulation of 19 March 2007 was to influence the cash flows payable under EIRDs in a manner favourable to the parties to that manipulation. In recital 411 of the contested decision, in response to an argument put forward by the applicants contesting the finding of restriction of competition by object in respect of the conduct imputed to HSBC, the Commission stated, in essence, that Euribor directly determined the cash flows payable under the ‘variable leg’ of EIRDs and was also relevant for the determination of the cash flows payable under the ‘fixed leg’ of EIRDs, since it was indirectly taken into account at the time when the fixed rate was determined by reference to the yield curve, which was based on expected variable rates.93In recital 394 of the contested decision, the Commission stated that all of the forms of conduct described in recital 392 of its decision, including the manipulation of 19 March 2007, restricted competition by creating an informational asymmetry between market participants, since participants in the infringement, first, were better able to know in advance with a certain accuracy at what level Euribor would be and/or was intended to be set by their colluding competitors and, second, knew whether or not the Euribor on a given day was at artificial levels.94That line of reasoning does not contain any error of law or assessment.95In this regard, it should be noted that the impact of the Euribor manipulation on cash flows generated by the derivatives at issue is clear. On 19 March 2007, the participants artificially reduced the Euribor rates so that the sums they had to pay in respect of the ‘variable leg’ of futures linked to Euribor would be lower.96Therefore, when the HSBC traders negotiated the ‘fixed leg’ of those futures, that is to say, the fixed rate determining the payments which they were to receive, they were in a position to do so knowing that the variable rate, which determines the payments which they were going to have to make, would be low. They were therefore in a position to propose a more competitive rate than that of their competitors, since they knew that the cash flows associated with those contracts would remain positive.97That conduct necessarily restricted competition to their advantage and to the detriment of other operators on the market. This was also to the detriment not only of their counterparties who saw the payments that they received under the ‘variable leg’ of the EIRDs artificially reduced, but also to the banks that wanted to adopt a ‘buyer’ position in respect of the type of EIRD at issue, but which did not enter into a trade because of the more competitive rate offered by the participants in the manipulation. Such manipulation was also to the detriment of the market operators who, not being aware of that manipulation, took trading positions against those of HSBC and Barclays. In that regard, it is possible to note that the terms used by the traders from those two banks in a telephone conversation that took place immediately after the manipulation of 19 March 2007, referred to in recital 329 of the contested decision, are unequivocal as to the perception by those two traders of the negative effects of their manipulation on their competitors.98The various arguments put forward by the applicants are not such as to call into question the merits of that finding.99The first set of arguments put forward by the applicants is that the manipulation of Euribor cannot constitute a restriction of competition since, in essence, there is competition between the banks only when the EIRDs are entered into and solely on the basis of the rate of their ‘fixed leg’, which constitutes the only ‘price’ of EIRDs.100Such criticism is based on the premiss that EIRDs are entered into solely on the basis of competition in respect of the fixed rate. However, as the Commission rightly stated in the contested decision, the cash flows generated by an EIRD result from the netting of payments payable under the ‘fixed leg’ and the ‘variable leg’ of the EIRD. Thus, not only will a trader be in a position to improve the cash flows from existing EIRDs by manipulating the reference rate on the basis of its overall credit or debit position, but he will also be able to negotiate the fixed rate of the contracts which he enters into by having advanced information with regard to the variable rate applicable to the relevant dates for the determination of cash flows. His competitive position can only be improved as compared with that of his competitors who do not have such information.101The applicants claim that it was not in the interests of the banks participating in the manipulation of 19 March 2007 to adapt their trading positions according to that manipulation and make reference to paragraphs 347 to 351 of the financial expert’s report (see paragraph 80 above). However, that line of argument and the relevant passages of that financial expert’s report contain only general assertions claiming that it is not in the banks’ interest to offer better terms than those of their competitors on the ground that that would reduce the profitability of the EIRDs. Nevertheless, the fact remains that, where a trader has advanced information on the variable rate that applies to the relevant dates, he is able to determine the fixed rate that he should propose in order to ensure, first, the profitability of the EIRD, that is to say so that it generates positive cash flows for its bank and negative cash flows for its counterparty and, second, that that fixed rate will appear more attractive to the counterparty than that offered by its competitors.102In that regard, there is no contradiction between, on the one hand, the fact that it is possible for the banks concerned to offer better conditions than their competitors and, on the other hand, the finding of an infringement by object. In the circumstances of the present case, that possibility is instead the expression of a change in the competitive process on the EIRD market solely for the benefit of the banks that participated in the collusion.103That conclusion is all the more justified in the light of the characteristics of the manipulation of 19 March 2007. Those characteristics show that it was in the banks’ interest to modify their trading positions in the light of that manipulation by acquiring a ‘buyer’ exposure to futures linked to the 3m Euribor that was as large as possible in anticipation of the orchestration of a low rate. It is telling that, during the telephone conversation between the HSBC trader and the Barclays trader that took place on 19 March 2007 directly after the manipulation and is referred to in recital 329 of the contested decision, the HSBC trader appears to regret the fact that he had not benefited from the manipulation as much as the Barclays trader, who had built up a greater ‘buyer’ position.104Therefore, in the light of the significance of Euribor in determining the cash flows payable under those contracts, it is necessary to reject the first set of arguments, which seek to show that the Commission erred when it found that the conduct which had as its purpose the manipulation of the 3m Euribor rate on 19 March 2007 had an object that restricted competition. It also follows from the above that the Court has been able to carry out its review of lawfulness in this regard and that, consequently, the Court finds that that aspect of the Commission’s reasoning does not contain an insufficient statement of reasons, contrary to what is claimed by the applicants.105In a second set of arguments, the applicants complain that the Commission focused only on the proprietary trading of EIRDs, omitting the fact that HSBC traded EIRDs for hedging and market making purposes.106The term ‘market maker’ is defined in recital 40 of the contested decision as follows: ‘Market makers are individuals or companies which hold themselves out as able and willing to sell or to buy financial products, such as securities or financial derivative products, at prices determined by them generally and continuously (through firm bids and offers), rather than in respect of each particular transaction.’ That definition is not contested by the applicants.107Since they are generally and continuously active on the EIRD market, ‘market makers’ enter into a larger number of transactions than other market participants, always with the objective of making a profit. The applicants’ line of argument is that, for a market maker, that search for profit is based mainly on the difference between the purchase and selling prices of the numerous contracts which it enters into, that is to say, the difference between its overall ‘buyer’ and ‘seller’ positions, rather than by the difference between the fixed rate and the variable rate of each of those contracts.108However, if a market maker can make a profit by taking advantage of the difference between the price at which he buys and sells EIRDs, that does not preclude him from seeking to make a profit from the difference between the fixed rate and the variable rate of a single EIRD. It seems unlikely that a trader who makes a particularly large number of trades does not take into account what the variable rate will be when he offers a price based on the fixed rate.109Further, the HSBC trader’s role as a market maker bears out the implausible nature of the applicants’ argument that it was not in HSBC’s interest to adapt its trading positions according to the manipulation of 19 March 2007, which was dealt with in paragraphs 101 to 103 above. Accepting a lower level of profitability per transaction is entirely logical where a greater number of transactions are entered into.110Lastly, as regards the emphasis that the applicants’ place on the fact that the EIRDs were also entered into for hedging purposes, it need only be pointed out that using EIRDs in such a way does not detract from the fact that the EIRDs can also be used by market makers for speculation purposes, as the Commission pointed out in recital 38 of the contested decision.111In the light of the foregoing, the second set of arguments put forward by the applicants should be rejected and it must be concluded that the Commission was right to find that the manipulation of 19 March 2007 in which HSBC participated, fell within the definition of an infringement by object under Article 101(1) TFEU.112In the third set of arguments, the applicants criticise the Commission for having characterised the manipulation of 19 March 2007 as constituting a fixing of trading conditions within the meaning of Article 101(1)(a) TFEU.113However, since the finding of an infringement by object applied to the manipulation of 19 March 2007 is substantiated to the requisite legal standard for the reasons set out in paragraphs 94 to 111 above, those arguments must be rejected as irrelevant. With regard to those arguments, it is appropriate to apply the settled case-law according to which where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part (see, to that effect and by analogy, judgments of 12 July 2001, Commission and France v TF1, C‑302/99 P and C‑308/99 P, EU:C:2001:408, paragraph 27, and of 12 December 2006, SELEX Sistemi Integrati v Commission, T‑155/04, EU:T:2006:387, paragraph 47).114In view of the foregoing, the first part of the plea must be rejected. (b) Second part of the plea, relating to the finding of an infringement by object applied to other forms of conduct alleged against HSBC 115In this part of the plea, the applicants dispute the finding of an infringement by object applied by the Commission to forms of conduct which do not concern the Euribor manipulation of 19 March 2007 and are referred to in the contested decision as exchanges relating, first, to ‘trading positions’ and, second, to ‘detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs’. With regard to that second category, HSBC was found to have taken part in exchanges which allegedly relate to EIRD ‘mids’.116They observe that the exchanges at issue in this part of the plea are limited to six online discussions between 12 February and 27 March 2007, which do not relate to the manipulation of Euribor.117They maintain that the discussions described in the contested decision as exchanges on trading positions were insufficient to enable the traders in question to coordinate their trading positions. The applicants dispute the Commission’s assessment of the discussions of 12 and 16 February 2007 and 9 and 14 March 2007.118As regards the discussions described in the contested decision as exchanges on pricing strategies, the applicants deny that the mid constitutes a ‘price’, a ‘price list’ or a ‘pricing component’ that allows such characterisation and claim that the mid is not confidential information and that, from a certain perspective, such discussions encourage competition. They dispute the Commission’s assessment of the discussions of 14 and 16 February 2007.119The Commission’s reply is that the matters contested in the application are not the only examples of exchanges of sensitive information in which HSBC participated.120It states, as regards the discussions described in the contested decision as exchanges on trading positions, that, although some of them are related directly to the manipulation of 19 March 2007, they are intended, as such, to influence the cash flows under EIRDs, thereby distorting the normal course of competition.121As regards the discussions described in the contested decision as exchanges on pricing strategies, the Commission concludes that mids make it possible to anticipate bid and offer prices and, therefore, that those exchanges reduce uncertainty as to the likely level of those prices and that the holding of such discussions does not constitute one of the normal circumstances for the functioning of the market in question and is not favourable to consumers.122It retains the assessment that it made in the contested decision on the discussions of 12, 14 and 16 February 2007 and 9 and 14 March 2007.123As a preliminary point, it should be noted that, although it follows from the examination of the first part of this plea that HSBC’s participation in an infringement by object is established to the requisite legal standard, it is nevertheless still appropriate to examine the second part. The existence of other anticompetitive conduct attributable to HSBC is relevant for the purposes of assessing the gravity of the infringement of Article 101(1) TFEU committed by HSBC and, consequently, the proportionality of the fine imposed on it. The factors capable of affecting the assessment of the gravity of an infringement include the number and intensity of the incidents of anticompetitive conduct (see, to that effect, judgments of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 57 and the case-law cited, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 197).124The Court notes that the applicants’ line of argument can be divided into two grounds for complaint, the first of which relates to the merits of the finding of restriction by object applied by the Commission to discussions that it described as exchanges on mids and the second of which relates to the merits of the equivalent finding applied to discussions that it described as exchanges on trading positions. (1) Ground for complaint contesting the merits of the finding of restriction by object applied to the exchanges on mids 125At issue are two discussions in which HSBC participated and which allegedly related to the mid-point prices (described as ‘mids’ in the contested decision) of EIRDs; the first of those discussions occurred on 14 February 2007 (recitals 283 to 285 of the contested decision), and the second occurred on 16 February 2007 (recitals 286 to 288 of that decision). Those discussions fall within the category of anticompetitive conduct contemplated in recitals 113(g), 358(g) and 392(g) of the contested decision (exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs).126As it did with regard to the manipulation of 19 March 2007, the Commission explained its finding of restriction by object with regard to such exchanges in recital 394 of the contested decision by reference to the creation of informational asymmetry between market participants, since the participants in the infringement, first, were better placed to know in advance with a certain accuracy at what level Euribor would be and/or was intended to be set by their colluding competitors, and, second, knew whether or not the Euribor on a given day was at artificial levels.127Reasons relating more specifically to mids appear in other passages of the contested decision.128Thus, in recital 32 of the contested decision, it is made clear that the terms ‘run’ or ‘mids’, ‘in simple terms … can be described as price lists of a trader, a trading desk or a bank regarding certain standard financial products’. In recital 34 of that decision, it is stated that the term ‘mid’‘refers to the mid-point or average of the bid and offer prices (for example perceived, modelled, quoted or traded) for a particular product. The mid often serves as a reliable approximation of where a market maker would trade with a client, in particular where the market is liquid and the bid-offer spread is narrow’.129Also in recital 34 of the contested decision, the Commission referred to the fact that one bank explained to it that ‘derivatives traders [used] the mid points on their yield curves to help determine the bid or offer prices they are to make to the market. Through knowing a competitor’s mid point, although it is not actually the dealing price, a derivatives trader is more easily able to work out the actual bid or offer prices of its competitors. Mids are used for pricing, managing trading positions and appreciation of a portfolio.’130In recital 419 of the contested decision, in response to the applicants’ arguments, the Commission stated that the mid constituted each trader’s estimate for the actual price of the EIRD and that there are as many estimates of the mid as there are market players ‘as the mid represents an individual perception of the price, and therefore reveals a price intention’. In that regard, it pointed out that the applicants themselves had stated that the ‘offer price’ was typically set slightly above the mid and the bid price is typically set slightly below the mid, and that changes in the mid ‘tend to result in a parallel change of both the bid and the offer’ and, therefore, that the mid is a close proxy to the price.131The Commission also analysed the question whether the information exchanged was secret and the degree of market transparency.132Thus, in recital 395 of the contested decision, the Commission emphasised that those exchanges went beyond an exchange of information in the public domain and had the objective of increasing transparency between the parties and therefore significantly reducing normal market uncertainties to benefit the parties to the detriment of other market participants.133Similarly, in recitals 399 to 402 of the contested decision, the Commission rejected the argument that the information exchanged was not sensitive because it was widely available to the public. The Commission concluded that accurate pricing information was not widely available on the EIRD market, arguing that it was apparent from the documents before the Court that unreliable information was sometimes knowingly communicated to the public platforms of market players and that the traders needed the pricing information of other traders to adjust their own pricing curves.134In recital 403 of the contested decision, the Commission did not accept the arguments that the exchanges pursued a legitimate purpose, essentially on the ground that those exchanges did not play a role in the conclusion of transactions between the traders concerned. It also highlighted that such exchanges between market makers gave rise to greater transparency only between themselves and did not benefit all market participants.135In addition, in recital 431 of the contested decision, the Commission denied that certain characteristics of the EIRD market, and in particular its fast-moving and transitory nature, implied that collusion could arise only with frequent communication on specific details of individual trades, such as precise information on future individual transactions. It reiterated that ‘the information exchanged on transaction data (prices and volumes) for most over the counter EIRDs was not publicly available and accurate pieces of information were valuable information to traders’.136The conversation of 14 February 2007 is referred to in recitals 283 to 285 of the contested decision. In that conversation, the HSBC trader tells the Barclays trader that the Deutsche Bank trader publishes some of his prices on his Bloomberg screen, to which the Barclays trader replies that those prices are merely indicative. The contested decision then states that ‘[the Barclays trader] then inquires just about [the HSBC trader]’s exact price for August[; … HSBC trader] obliges and replies “4.012” and that he has been offered 4.005-4.015 on this in the market shortly before leaving the chat.’ The Commission concludes from this conversation that ‘[the Barclays trader] asks [the HSBC trader] for a precise pricing information outside of the context of a potential transaction, a request which [the HSBC trader] satisfies …’.137With regard to the discussion of 16 February 2007, in recitals 286 to 288 of the contested decision, the Commission found that ‘[the HSBC trader] and [the Barclays trader] disclose[d] to each other their respective mid prices on an EONIA swap (“t’as quoi 10/11 sp eonia?”) and a [forward rate agreement] (“et sur le 10/11 sp fra?”). [The HSBC trader] is not sure about his price on the EONIA swap (“je dois etre a la rue … 4.06?”“g 4.0625 en mid”) but [the Barclays trader] reassures him (“non ca va”) and then reveals the deal prices and that he has gained on the [forward rate agreement] from trades with two other market players who had different prices for the same contract.’138The Commission did not err in finding that the exchanges on mids contained in those two discussions had an object that restricted competition.139In the first place, it should be noted that, contrary to the applicants’ assertions, information relating to mids is relevant for pricing in the EIRD sector.140First, it is common ground between the parties that a trader determines the fixed rate of EIRDs by reference to what it considers to be the mid, namely slightly below it for its ‘bid price’ and slightly above it for its ‘offer price’, as the Commission pointed out in recital 419 of the contested decision.141Second, it must also be concluded that knowledge of a competitor’s mid makes it possible to assess that competitor’s perception of what the variable rate of the EIRD will be on the fixing date, by applying the yield curve referred to in recital 34 of the contested decision, at least as regards EIRDs with a short maturity. When questioned at the hearing as to whether the yield curve of an EIRD is known to all market operators or depends on the individual perception of each operator, the applicants themselves stated that that yield curve was objective and was not based on an individual assessment of that type of derivative.142In the second place, it should be noted that information on mids for over-the-counter (‘OTC’) derivatives is not public, unlike the equivalent information for derivatives traded on a regulated market. While it is common ground between the parties that the latter information is available or may be deduced in respect of all parties operating on a regulated market, that is not the case for OTC derivatives.143It is true that information on mids relating to such derivatives may be made public directly by certain traders or indirectly through brokerage companies. However, the fact remains that such information is not generally available and is not necessarily reliable, as is shown by the discussion of 14 February 2007, referred to in paragraph 136 above, between the HSBC trader and the Barclays trader in relation to the mids published by the Deutsche Bank trader on his Bloomberg page.144In the third place, it should be noted that a distinction may be drawn between, on the one hand, competitors gleaning information independently or discussing future pricing with customers and third parties and, on the other hand, competitors discussing price-setting factors and the evolution of prices with other competitors before setting their quotation prices. Although the first type of conduct does not raise any difficulty in terms of the exercise of free and undistorted competition, the same cannot be said of the second type, which runs counter to the requirement that each economic operator must determine independently the policy which it intends to adopt on the internal market, since that requirement of independence strictly precludes any direct or indirect contact between such operators with the object or effect either of influencing the conduct on the market of an actual or potential competitor or of disclosing to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market (see judgment of 14 March 2013, Dole Food and Dole Germany v Commission, T‑588/08, EU:T:2013:130, paragraphs 291 and 292 and the case-law cited).145Further, an exchange between competitors on a factor that is relevant for pricing and is not publicly available is all the more sensitive in terms of competition where it takes place between traders acting as ‘market makers’, in the light of the importance of such traders on the EIRD market. As was stated in paragraphs 106 and 107 above, ‘market makers’ are generally and continuously active on the EIRD market and therefore enter into a larger number of transactions than other market participants. From the point of view of competition on the market, it is particularly fundamental that prices be determined independently.146In the fourth place, it must be concluded that the discussions between the HSBC and Barclays traders of 14 and 16 February 2007 concerned precise information which could have been exploited by the other party.147Thus, it is apparent from reading the entire discussion of 14 February 2007 that not only did the HSBC trader disclose the level of his mid (4.012) and the prices of transactions that had been offered to him (4.004/4.0015), but both traders also shared their impressions on the level and evolution of prices.148With regard to the discussion of 16 February 2007, it is apparent from the explanations provided by the applicants themselves in their observations on the statement of objections that the HSBC and Barclays traders discussed their assessments of the mid for a one-month spot EONIA swap starting in 10 months (‘10/11 sp eonia’) and compared it with the mid for a forward rate agreement linked to Euribor covering the same dates. It is clear from that discussion, first, that the HSBC trader reassessed his mid for the EONIA swap after the Barclays trader shared his opinion and, second, that the parties exchanged views on what the price difference between those two derivatives should be.149In the fifth place, it should be noted that the applicants’ arguments that the exchanges of information between market makers on mids are ‘pro-competitive’ cannot be upheld. In essence, the applicants claim that exchanges on mids are inherent in the activities of traders and, more specifically, of market makers operating on the EIRD market for the purposes of reducing risk and result in lower bid-offer spreads, to the benefit of customers.150It is true that, in accordance with the case-law cited in paragraph 57 above, examination of the finding of infringement by object must take into account the economic and legal context of the market in which the exchanges of information took place.151It is indeed also true that the EIRD market is somewhat unusual. Banks often enter into EIRDs with other banks on that market, in particular for hedging purposes. In other words, the very nature of the market means that banks, in particular those acting as a market makers, which are competitors as regards their EIRD offer to potential clients, also end up trading between themselves and, consequently, communicating confidential information to each other when they do so.152However, that aspect of the economic and legal context of the EIRD market was taken into account by the Commission, since it excluded from its analysis the information exchanged in the context of contractual negotiations.153The applicants’ line of argument goes beyond merely criticising the failure to take into account the economic and legal context of the EIRD market and alleges that the Commission failed to take account of any pro-competitive effects of discussions between traders.154In this regard, it should be noted that, with the exception of restrictions ancillary to a main operation (see judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 89 and the case-law cited), it is only in the context of the assessment of Article 101(3) TFEU that any pro-competitive effects can be taken into account. It is clear from settled case-law that the existence of a ‘rule of reason’, that is to say an examination weighing up the pro- and anticompetitive effects of an agreement when characterising it for the purpose of Article 101(1) TFEU, cannot be upheld under EU competition law (judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 65; see also, to that effect, judgment of 23 October 2003, Van den Bergh Foods v Commission, T‑65/98, EU:T:2003:281, paragraph 106).155It was therefore for the applicants either to show that the discussions on mids were directly related and necessary to the functioning of the EIRD market or that they meet the conditions in Article 101(3) TFEU.156First, the applicants do not allege that the Commission misapplied Article 101(3) TFEU in the present action.157Second, to the extent that the applicants’ line of argument may be understood as being that exchanges of information on mids between market makers are inextricably linked to the functioning of the EIRD market, it should be noted that, according to settled case-law, if a given operation or activity is not covered by the prohibition rule laid down in Article 101(1) TFEU, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives of one or the other (see judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 89 and the case-law cited). Where it is not possible to dissociate such a restriction, described as an ancillary restriction, from the main operation or activity without jeopardising its existence and aims, it is necessary to examine the compatibility of that restriction with Article 101 TFEU in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 101(1) TFEU (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 90).158In order for a restriction to classify as ancillary, it is necessary to establish, first, whether the restriction is objectively necessary for the implementation of the main operation or activity and, secondly, whether it is proportionate to it (judgments of 18 September 2001, M6 and Others v Commission, T‑112/99, EU:T:2001:215, paragraph 106, and of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 64).159As regards the first condition, according to the case-law, it is necessary to inquire whether that operation or activity would be impossible to carry out in the absence of the restriction in question. Thus, the fact that that operation or activity is simply more difficult to implement or even less profitable without the restriction concerned cannot be deemed to give that restriction the ‘objective necessity’ required in order for it to be classified as ancillary. Such an interpretation would effectively extend that concept to restrictions which are not strictly indispensable to the implementation of the main operation or activity. Such an outcome would undermine the effectiveness of the prohibition laid down in Article 101(1) TFEU (see, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 91).160That first condition, when applied to the circumstances of the present case, means ascertaining whether the functioning of the EIRD market is made impossible without exchanges of information on mids between market makers. In this regard, it need only be noted that it is true that the applicants refer, in their written pleadings, to the pro-competitive effects that such exchanges between traders may have, in so far as they have allowed them to reduce the uncertainty about the level at which they might be able to hedge their positions and, consequently, to quote more favourable prices. However, the applicants do not establish that the OTC derivatives market could not function without such exchanges of information between traders acting as market makers. Therefore, the first condition is not satisfied in the present case.161For all of those reasons, the applicants’ first complaint must be rejected. (2) Ground for complaint contesting the merits of the finding of restriction by object applied to the exchanges on trading positions 162At issue in this ground for complaint is the Commission’s characterisation of the conduct described in recitals 271 to 276 (discussion of 12 February 2007), 286 to 288 (discussion of 16 February 2007), 295 (discussion of 9 March 2007) and 296 to 298 (discussion of 14 March 2007) of the contested decision. In its defence, the Commission maintains that discussions on trading positions also took place on 13 and 28 February and 19 March 2007.163With regard to the discussions of 13 and 28 February and 19 March 2007 to which the Commission makes reference, it need only be noted that they all took place in view of the Euribor manipulation of 19 March 2007 or had a connection to it and that, consequently, it has already been concluded that they pertain to conduct with an anticompetitive object. Moreover, the applicants do not dispute the finding of restriction by object that was applied to them in the context of the present part of the plea.164A similar conclusion must be reached with regard to the discussions of 12 and 16 February 2007, since it has already been established that the Commission was entitled to characterise them as a restriction of competition by object. First, it is apparent from the first part of this plea that the Commission was correct to find that the discussion of 12 February 2007 was part of the Euribor manipulation of 19 March 2007 and, on that basis, constituted an infringement of Article 101(1) TFEU. Second, for the reasons set out in the context of the examination of the first ground for complaint in the present part of the plea, the Commission was also entitled to find that the discussion of 16 February 2007 constituted an infringement of Article 101(1) TFEU to the extent that the exchange related to mids. It is therefore unnecessary to ascertain whether the same form of conduct is also classified as an infringement by object for another reason.165Therefore all that remains at issue are the discussions of 9 and 14 March 2007.166Those discussions fall within the category of anticompetitive conduct contemplated in recitals 113(b), 358(b) and 392(b) of the contested decision (exchanges between traders relating to their respective EIRD trading positions and exposures) and in recitals 113(c), 358(c) and 392(c) of the contested decision (exchanges relating to the possibility of aligning their trading positions).167It is apparent from recitals 394 and 395 of the contested decision that the same considerations as those used with regard to the manipulation of 19 March 2007 and the exchanges on mids are used to explain the finding of infringement by object applied to the exchanges of information on trading positions, namely that they would put participants in a favourable position of informational asymmetry, by increasing transparency between the parties and significantly reducing normal market uncertainties.168There is no definition in the contested decision of the concept ‘trading position’. Nevertheless, it is apparent from the various places it is used in that decision that that expression covers the composition of a trader’s investment portfolio (his ‘book’), and the level and direction of his exposure on the EIRD market.169Reasoning relating more specifically to trading positions is set out in other passages of the contested decision.170Thus, in recital 390 of the contested decision, the Commission observed that, according to RBS, each market maker carries a trading book which consisted of an inventory of contracts and inferred from this that ‘by sharing their trading positions, market makers [were] able to infer each other’s demand and supply as regards these contracts and [could] use this information to their advantage. This [could] involve them adjusting their own trading patterns and [resulted] in them being better informed than their competitor market makers and other market participants’.171In recital 417 of the contested decision, the Commission stated that ‘exchanges on trading positions … served the objective of checking whether the parties’ commercial interests were aligned before they could take further concerted action to influence the value of EIRDs to the detriment of competitors not part of the cartel’. It added that ‘in the context of an EIRD market which was not transparent … sharing such information allowed the colluding parties to be more informed than other market participants’. In the same recital, the Commission also stated that ‘by sharing their trading positions and therefore, being able to adjust their own trading patterns, the colluding parties could influence the value of their portfolios, which in turn influenced the trading conditions within the meaning of Article 101(1)(a) [TFEU] and therefore affect the structure of competition in the EIRD market’.172The conversation of 9 March 2007, which took place between an HSBC trader and a Deutsche Bank trader is considered in recital 295 of the contested decision. The Commission concluded in that recital that it related to specific trading positions of important market players and the information exchange took place outside of the context of a potential transaction.173The discussion of 14 March 2007 is considered in recitals 296 to 298 of the contested decision. It is clear from those recitals that the conversation relates to past speculations on the rate difference between EONIA and the 1 month Euribor in the context of which the HSBC trader made a loss, while the Barclays trader made a significant financial gain. The Barclays trader goes on to explain how he believes the market worked and states that this should also apply to June tenors.174For the purpose of assessing the merits of the finding of restriction by object applied to those discussions, it must be borne in mind that the Commission found that those discussions had contributed to the distortion of the normal course of pricing components in the EIRD sector. In addition, in particular in recital 417 of the contested decision, the Commission also found that the conversations on trading positions had influenced other trading conditions within the meaning of Article 101(1)(a) TFEU.175As regards that second classification, although it may, in principle and for the reasons set out in paragraphs 74 to 77 above, be taken into account despite the fact that it does not appear in the operative part of the contested decision, this is on the condition that reasons are given to the requisite legal standard.176In that regard, it should be noted that, according to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate for the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, page 115 and the case-law cited).177As the applicants rightly observe in their written submissions, the contested decision does not make it possible to identify the ‘other trading conditions’ which were coordinated following the exchanges on trading positions involving HSBC. It follows that such reasoning fails to meet the criteria noted in the case-law referred to in paragraph 176 above and cannot, therefore, be taken into account when reviewing the merits of the finding of restriction by object applied to the exchanges on trading positions.178It is therefore necessary to investigate in the context of this ground for complaint whether the Commission was entitled to find that such exchanges distorted the normal course of pricing components in the EIRD sector.179In that regard, it should be noted, in the first place, that exchanges between competitors concerning the composition of their investment portfolio or the level of their exposures do not have the same relevance to pricing on the EIRD market as information on mids. Although, for the reasons set out in paragraphs 139 to 141 above, such information on mids makes it easier to identify the fixed rate proposed by a competitor for a derivative and his perception of what the variable rate will be at the fixing date, the same cannot be said for an exchange on trading positions which do not directly concern EIRD rates.180When questioned on that point at the hearing, the Commission itself acknowledged that exchanges on trading positions did not intrinsically have the same scope for restricting competition as exchanges on mids.181That conclusion is also supported by the contested decision. It is apparent from that decision that most of the exchanges on trading positions are instead complementary to other practices that restrict competition and have a proven object of restricting competition. Thus, in recital 417 of the contested decision, the Commission states that ‘exchanges on trading positions … served the objective of checking whether the parties’ commercial interests were aligned before they could take further concerted action to influence the value of EIRDs to the detriment of competitors not part of the cartel’.182Thus, the vast majority of discussions on trading positions in which HSBC traders participated had a link to the Euribor manipulation of 19 March 2007. This is the case for the discussions with the Barclays trader of 12, 13 and 28 February and 19 March 2007.183The same cannot be said for the discussions of 9 and 14 March 2007, which did not occur in view of the Euribor manipulation of 19 March 2007.184In the second place, it is apparent from the case-law cited in paragraphs 54, 55, 59 and 62 above that, although an exchange of information between competitors is likely to be incompatible with the competition rules if it reduced or removed the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted, a finding of infringement by object must be restricted to those exchanges that reveal a sufficient degree of harm to competition, meaning that it is not necessary to examine their effects. That is the case, in particular, for an exchange of information which is capable of removing uncertainty in the minds of the interested parties as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market.185In the third place, and consequently, it should be investigated whether the information exchanged during the discussions of 9 and 14 March 2007 reduced or removed the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector without having to examine their effects.186Turning first to the discussion of 9 March 2007, in recital 295 of the contested decision, the Commission criticises the HSBC trader for having informed the Deutsche Bank trader of his trading positions by stating, inter alia, ‘..j’ai fait la patte 5 ans …je suis en flattener a des niveaus imbattable!..et je reste short du court euro’, to which the HSBC trader responds ‘bravo bien joue’. It also complains that, during the same conversation, the HSBC trader wrote with regard to his portfolio ‘flattener euro maintenant 2-5 ans short de juin et sep 7 euribor’, which the Commission interpreted as meaning that he anticipates ‘a decrease in the spread between the prices of EIRDs with a maturity between 2 and 5 years and [that the HSBC trader] has a short trading position on June and September 2007’. The Commission also noted that the Deutsche Bank trader responded to him with ‘moi j’ai pas de h8 et de 2y !’, which the Commission interpreted as meaning that he had no ‘March 2008 futures nor EIRDs with 2 years maturity’.187The traders did indeed discuss the composition of their portfolios and in doing so exchanged confidential information, outside of the context of a potential transaction.188However, contrary to what is claimed by the Commission, that institution does not establish to the requisite legal standard that that discussion gave the traders an informational advantage that may have allowed them to adjust their trading strategies as a result.189First, the impression that emerges from that conversation is that the HSBC trader is boasting to the Deutsche Bank trader about a good trade that he made and the latter is congratulating him. The information provided, which is neither precise nor detailed, does not make it possible to read into that conversation the explanation of a ‘strategy’ which, as it was known by the Deutsche Bank trader in isolation, placed him in such a favourable situation as against his competitors that the Commission was able to infer that the object of that conversation was to restrict competition.190Second, as the applicants note, without being contradicted by the Commission, the pieces of information provided by the traders on their portfolios do not cover the interest rate tenors concerned or the extent of the positions concerned.191In the absence of more precise information of that order, it cannot be concluded that that discussion reduced or removed the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector without having to examine its effects.192Turning secondly to the discussion of 14 March 2007, considered in recitals 296 to 298 of the contested decision, it is true that, unlike the previous conversation, the information exchanged between the traders is precise and clear. The Barclays trader informs the HSBC trader how to make a financial gain in the future by using the difference between the 1 month Euribor and EONIA rates.193However, by proceeding in that way, the Barclays trader did not provide any confidential information to the HSBC trader. He merely shares with him the observation that, in essence, the EONIA rate can have an impact on the 1 month Euribor rate. Even though the HSBC trader appears not to be aware of how those two rates interact, what the Barclays trader says is merely a simple observation which any market observer could make. The Court therefore cannot find that his explanation to a competitor reduces or removes the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector.194In the light of the foregoing, the Court finds that the discussions of 9 and 14 March 2007, either individually or jointly, cannot be regarded as having an object that restricts competition within the meaning of Article 101(1) TFEU.195Therefore, the applicants are right when they state, in the second part of the first plea, that the Commission was not entitled to find that the object of the discussions of 9 and 14 March 2007 was to restrict competition. 2. Second, third and fourth pleas in law, concerning the Commission’s finding of a single and continuous infringement 196In the second, third and fourth pleas in law the applicants contest the Commission’s conclusion regarding HSBC’s participation in a single and continuous infringement.197According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition on the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156 and the case-law cited).198An undertaking which has participated in such a single and complex infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157 and the case-law cited).199An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 158 and the case-law cited).200On the other hand, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 159 and the case-law cited).201Furthermore, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is not necessary to establish whether they present a link of complementarity, in that each of them is intended to deal with one or more consequences of the normal pattern of competition, and through that interaction, they contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective. On the other hand, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the conduct in fact implemented by other participating undertakings does not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of an identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 247 and 248).202In addition, to the extent that a finding of a single and continuous infringement leads to an undertaking being held responsible for an infringement of competition law, it should be noted that, in the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 71 and the case-law cited).203In order to establish that there has been an infringement of Article 101(1) TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (see judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited).204Moreover, where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement. Indeed, the presumption of innocence constitutes a general principle of EU law, currently laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 72 and the case-law cited).205It is also apparent from the case-law of the Court of Justice that the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 73 and the case-law cited).206In the present case, as was pointed out in paragraph 70 above, the Commission applied the characterisation of a single and continuous infringement to three groups of forms of conduct: first, those relating to the manipulations of submissions to Euribor (point (a) of recitals 113, 358 and 392: exchanges relating to preference of level of Euribor benchmark; point (d) of recitals 113, 358 and 392: exchanges relating to the possibility of aligning their Euribor submissions; point (e) of recitals 113, 358 and 392: contact between the trader involved and the Euribor submitter within the same bank; point (f) of recitals 113, 358 and 392: agreements to report back on attempts to influence Euribor submissions), second, those relating to exchanges about EIRD trading positions (point (b) of recitals 113, 358 and 392: exchanges relating to respective trading positions and exposures; point (c) of recitals 113, 358 and 392: exchanges relating to the possibility of aligning trading positions); and, third, those relating to exchanges about detailed and not publicly available information on pricing intentions and pricing strategies concerning EIRDs (point (g) of recitals 113, 358 and 392).207The reasons put forward in the contested decision to explain such characterisation as a single and continuous infringement are set out in recitals 442 to 492 of the contested decision and summarised in paragraph 19 above. The Commission found that there was a single economic aim (recitals 444 to 450), that the various forms of conduct at issue formed part of a common pattern of behaviour (recitals 451 to 456) and that the traders of the banks at issue knew or should have been aware of the general scope and the essential characteristics of the cartel as a whole (recitals 457 to 483).208As is apparent from the case-law cited in paragraphs 197 and 198 above, three factors are decisive for the purpose of concluding that an undertaking participated in a single and continuous infringement. The first concerns the very existence of the single and continuous infringement. The various forms of conduct in question must form part of an ‘overall plan’ with a single objective. The second and third elements concern whether or not the single and continuous infringement can be attributed to an undertaking. First, that undertaking must have intended, through its own conduct, to contribute to the common objectives pursued by all the participants. Second, it must have been aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or could reasonably have foreseen all that conduct and was prepared to take the risks. The existence of those three elements is disputed, respectively, in the applicants’ second, third and fourth pleas in law. (a) The second plea in law, disputing the existence of an ‘overall plan’ with a single aim 209In their second plea, the applicants dispute the existence of an ‘overall plan’ with a single aim and conclude from this that the Commission’s finding of a single and continuous infringement is incorrect.210The relevant grounds in the contested decision appear in recitals 444 to 456 of the contested decision under the heading ‘Single economic aim’ and ‘Common pattern of behaviour’ and were summarised in paragraph 19 above.211The applicants’ arguments in the second plea in law can be divided into two parts; in essence, the first part relates to the single aim of the infringement and the second part relates to the existence of an ‘overall plan’. (1) The first part of the plea, relating to the single aim of the infringement 212According to the applicants, discussions between traders on issues unconnected to the manipulation of reference rates cannot have the same single aim as discussions relating to the manipulation of those rates.213The Commission submits that all the forms of conduct in question can be linked to the single aim which it has identified.214In recital 445 of the contested decision the single aim found by the Commission was described as being ‘[to reduce] the cash flows [colluding parties] would have to pay (or [to increase] those they would receive) and thereby [to increase] the value of the EIRDs they had in their portfolio, to the detriment of the counterparties to these EIRDs’.215As explained in paragraph 100 above, the cash flow linked to an EIRD results from the difference between the fixed rate of the contract, that is to say, the rate negotiated between the parties, and the variable rate, which depends on the reference rate.216As a preliminary point, it should be noted that the concept of a single aim cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether as object or effect, is an essential element of any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single aim is likely to deprive the concept of a single and continuous infringement of a part of its meaning, since it would have the consequence that different types of conduct which relate to a particular economic sector and are prohibited by Article 101(1) TFEU would have to be systematically characterised as constituent elements of a single infringement (judgments of 12 December 2007, BASF and UCB v Commission, T‑101/05 and T‑111/05, EU:T:2007:380, paragraph 180; of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 92; and of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraph 149).217It must follow that only restrictions of competition whose aim has been established to be the distortion of the normal course of either the fixed rate or the variable rate of EIRDs can have the single aim found by the Commission. It would be contrary to the case-law referred to in paragraph 216 above to find that instances of conduct that restrict competition but do not have a sufficiently close link with the fixing of those rates also have that aim.218Accordingly, it is appropriate to examine whether the three groups of forms of conduct highlighted by the Commission and referred to in paragraphs 70 and 206 can be associated with that single aim. In that regard, it is necessary to distinguish between, on the one hand, forms of conduct relating to the manipulation of Euribor submissions and, on the other hand, exchanges on EIRD trading positions and exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs.219In the first place, with regard to manipulations of the Euribor submissions, since the variable rate of an EIRD is based directly on the reference rate, those manipulations necessarily have the single aim identified by the Commission.220With regard to HSBC, it is therefore unproblematic to conclude that the discussions of 12, 13 and 28 February and 19 March 2007 referred to in paragraphs 85, 163 and 164 above, which form part of the manipulation of 19 March 2007, do have that aim.221In their reply, the applicants submit, in essence, that the Commission failed to show that manipulations concerning different tenors of reference rate were sufficiently interlinked to form part of the same single infringement.222In that regard, it should be noted that the Commission found that HSBC participated in a discussion of 27 March 2007, described in recital 339 of the contested decision, in which the Barclays trader considered the future manipulation of reference rates. As a result of that discussion — which, as the applicants accept, had as its objective the restriction of competition — the end of the period of the applicant’s participation in the infringement was declared to be 27 March 2007.223Although the applicants’ criticism in that respect is presented in summary form and only at the reply stage, it can nevertheless be examined by the Court. First, the Court understands the sense of this criticism and, second, it is merely a development of the line of argument already appearing in the application and does not constitute the submission of a new plea in law, which is prohibited by Article 84(1) of the Rules of Procedure. This criticism has a connection with the application that is sufficiently close to allow it to be considered as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgment of 20 November 2017, Petrov and Others v Parliament, T‑452/15, EU:T:2017:822, paragraph 46 and the case-law cited).224With regard to the merits of that criticism, while the case-law referred to in paragraph 216 above prevents the Commission from adopting a definition of the single aim that is so broad as to be similar to a general reference to the distortion of competition in a given sector, it would be contrary to the logic of the concept of a single infringement to require the Commission, when defining that single aim, to be so precise that it de facto prevents it from including in that same infringement different forms of conduct.225Accordingly, it must be concluded that various manipulations of reference rates can have the same single aim.226In the second place, as regards the exchanges relating to trading positions and those about detailed and not publicly available information on EIRD pricing intentions and strategies, it should be noted, at the outset, that the exchanges at issue here are only those that did not take place either in view of a manipulation of reference rates or jointly with such manipulation.227The discussions between traders that occurred in view of a manipulation of reference rates or jointly with such manipulation have the single aim of the infringement for the reasons set out in paragraphs 219 to 225 above. As regards HSBC, this is also the case for the discussions on trading positions which the traders participated in on 12, 13 and 28 February and 19 March 2007, for the reasons set out in paragraphs 181 and 182 above.228Contrary to what the applicants seem to claim, it cannot be automatically excluded that exchanges on trading positions and those about detailed and not publicly available information on EIRD pricing intentions and strategies have the single aim found by the Commission, despite the fact that they did not occur in view of manipulation of reference rates or jointly with such manipulation. Nevertheless, for the reasons explained in paragraphs 216 and 217 above, they can be found to have that aim only if the Commission has demonstrated that the purpose of those exchanges is to distort the normal course of either the fixed rate or the variable rate of EIRDs. With regard to HSBC, it is clear from paragraphs 139 to 161 above that that was the case for the discussions of 14 and 16 February 2007 in which its traders participated.229In the light of the foregoing, the first part of the plea in law must be rejected. (2) The second part of the plea, disputing the existence of an ‘overall plan’ 230In essence, the applicants dispute the Commission’s assertion that the various forms of collusive conduct formed part of an overall plan with the aim of improving their bank’s current and future trading positions, on the ground that there is no evidence of a global plan. In that regard, they submit, in essence, that the evidence that there was a ‘stable group of individuals’ that were involved in the conduct does not apply to HSBC. Additionally, the reference to secrecy in the contested decision is insufficient to establish that forms of conduct which are, by their nature, very different share a single economic aim. They also submit that, at least with regard to HSBC, the Commission’s assertions that the discussions had ‘the same or almost the same content’ or were ‘always for the same types of operations’ are incorrect as a matter of fact.231The Commission claims, in essence, that it established to the requisite legal standard the existence of an ‘overall plan’ in the contested decision.232In the contested decision, the Commission essentially based the existence of an ‘overall plan’, in recital 446 of the contested decision, on the fact that the parties clearly adhered to a common strategy which limited their individual commercial conduct by determining the course of their mutual action or abstention from action in the market thereby replacing the competition between themselves with cooperation, to the detriment of other market participants. It also stated, in recital 451, that the cartel was ‘controlled and maintained’ by a stable group of persons and, in recital 452, that the parties had followed a very similar pattern in their anticompetitive activities. In that regard, it highlighted, in recitals 452 to 456, that the contacts between the banks had often taken place in parallel or in close proximity, that the language used showed that those communications were commonly used by the individuals participating in the cartel, that the parties took precautions to conceal their contacts and that the various communications had the same or almost the same content.233Among the various reasons highlighted by the Commission in the contested decision, the Court finds that the central element which establishes that there was an ‘overall plan’, as referred to in recital 451 of the contested decision, is the fact that the cartel was ‘controlled and maintained’ by a stable group of individuals.234While the other reasons appearing in the contested decision and summarised in paragraph 232 above — such as the similarity of the anticompetitive activities of the traders in the market, the frequency of those activities and the will of those traders to maintain the secrecy of that conduct — do bolster the impression that there was an ‘overall plan’, in the absence of more conclusive evidence, they do not in themselves prove that such a plan existed.235Consequently, it is only to the extent that those various forms of conduct can be considered to have been controlled or directed by the same group of individuals that the Court can find in favour of the existence of such an ‘overall plan’ which would substantiate a finding of a single infringement.236The applicants do not dispute the correctness of the ground that the cartel was controlled and maintained by a stable group of traders, but rather claim that none of HSBC’s traders formed part of that group. That line of argument does not relate to the merits of the Commission’s finding of a single infringement, but rather to whether it is imputable to HSBC, which falls within the scope of the fourth plea.237Subject to that reservation, the second part of the plea must be rejected, as, accordingly, must the second plea in law. (b) The fourth plea, disputing HSBC’s awareness of the offending conduct of the other participants 238The applicants criticise the Commission for concluding that HSBC was or ought to have been aware of the allegedly unlawful conduct of the other banks. They claim that neither the grounds of the contested decision relating to all the banks, nor those specific to HSBC, show that HSBC was or ought to have been aware of the general scope and the essential characteristics of the cartel as a whole.239The applicants claim, inter alia, that it can be concluded from the discussion of 12 February 2007 only that the HSBC trader had a rough idea of the broad plan to manipulate the 3m Euribor on 19 March 2007 without, however, knowing which banks were participating, and, further, dispute the fact that the Barclays trader made the involvement of other banks in the manipulation clear to the HSBC trader or, alternatively, that the HSBC trader was fully aware of it. In any event, any knowledge of the participation of other banks in the manipulation of 19 March 2007 is not tantamount to awareness of the wider pattern of contacts between other banks which took place over an extended period of time. Moreover, the situation of 27 March 2007 referred to in recital 491 of the contested decision, in which the Barclays trader mentioned to an HSBC trader the prospect of repeating the manipulation of 19 March 2007 at some time in the future, is irrelevant in the context of an overall cartel between 12 February and 26 March 2007.240The Commission submits, as a preliminary point, that, through its contact with Barclays, HSBC participated in all of the anticompetitive conduct comprising the single and continuous infringement and that that situation is sufficient to render it liable for the entirety of that conduct.241The Commission claims that it has nevertheless proved that HSBC was aware or could reasonably have foreseen the offending conduct of the other undertakings. In this respect, that institution refers to the content of the exchanges between HSBC and Barclays on 12 February and 7 and 19 March 2007. The Commission refutes the applicants’ argument that HSBC’s awareness of the manipulation of 19 March 2007 does not mean that it was aware of other anticompetitive conduct.242The grounds of the contested decision relating to awareness of the offending conduct appear in recitals 457 to 465 of the contested decision, which cover grounds common to all the banks, and in recitals 471 to 476 of that decision, which cover grounds relating to HSBC alone.243As regards the grounds common to all the banks, they are based on the premiss, set out in recital 457 of the contested decision, that traders participating in the anticompetitive exchanges were skilled professionals and were aware or should have been aware of the general scope and characteristics of the cartel. In that regard, the Commission referred, first, in recital 458, to the very specific context in which the traders operate, characterised by bilateral, recorded and controlled exchanges. It claimed, second, in recital 459 of the contested decision, that the traders involved in the arrangements were aware that traders from other banks were ready to engage in the same type of collusive behaviour concerning pricing components and other trading conditions of EIRDs. It argued, third, in recitals 460 to 461 of the contested decision, that the evidence showed a wide-spread general awareness of the declaratory nature of the mechanism for setting the Euribor rate and, consequently, of the fact that it could be distorted by the panel banks’ submissions. Fourth, in recital 463 of that decision, it highlighted the fact that each of the banks in question had been active on the market in question for many years and that the traders had not expressed any surprise when they were asked to act in concert. In recitals 462 to 464 of that decision, it concluded, in essence, from the combination of those factors that the traders who participated in those bilateral exchanges were aware or could reasonably have foreseen that it was likely that several banks were involved in the collusive arrangements, even if that information was never explicitly disclosed to them. The Commission also stated, in recital 465, that the traders were subject to a high level of recording and supervision, which means that their management must be considered to have been aware or should have been aware of the essential characteristics of the collusive scheme and their employees’ involvement in it. It added that it had to take into account the precautions taken by traders to conceal their arrangements.244With regard to the grounds relating to HSBC alone, the Commission first highlighted, in recital 471 of the contested decision, that from the beginning of HSBC’s involvement in the infringement of 12 February 2007, the Barclays trader explained the scheme to the HSBC trader with a view to the manipulation of 19 March 2007 in a manner that implied that other banks were involved. Second, in recital 472, the Commission claimed that the HSBC trader was aware of the close relationship between the Barclays trader and the traders from JP Morgan, Société générale and Deutsche Bank. Third, in recital 472, it noted that the traders from Deutsche Bank and Barclays regarded the HSBC trader as a reliable partner for the cartel. It inferred from this, in recital 473, that the HSBC traders knew or, at least, should have known that their discussions with Barclays were part of a network of anticompetitive contacts that comprised at least Barclays, Deutsche Bank, Société générale, HSBC and one or more other banks that are not mentioned which would help to bring about the anticompetitive effects intended through the manipulation of 19 March 2007. In addition, in recitals 475 and 476, it added that, in view of the short period during which HSBC was involved in the collusive exchanges, its participation in the scheme had been continuous.245As a preliminary point, it should be noted that the Commission’s argument, set out in paragraph 240 above, that HSBC participated in all of the anticompetitive conduct at issue, which is sufficient to render it liable for the entirety of that conduct, cannot be upheld.246In that regard, it should be noted that, at least in the case of HSBC, the alleged anticompetitive conduct took place in bilateral discussions. Therefore, the submission that the discussions in which HSBC participated may have fallen within each of the categories referred to in recitals 113, 358 and 392 of the contested decision, if proved, cannot, in itself, be sufficient to render HSBC liable for the offending conduct of the banks with which it did not have direct contact. In accordance with the case-law cited in paragraph 198 above, it was for the Commission to show that HSBC was aware of the offending conduct planned or put into effect by other banks or that it could reasonably have foreseen it.247In that regard, a distinction must be drawn between, on the one hand, the manipulation of 19 March 2007 and the possibility of it being repeated and, on the other hand, the other conduct taken into account by the Commission in respect of the single infringement. (1) HSBC’s knowledge of the participation of other banks in the manipulation of 19 March 2007 and the possibility of it being repeated 248From 12 February until 19 March 2007 HSBC participated in the manipulation described in paragraphs 85 to 90 above and sought to profit from the submission of low quotes on 19 March 2007 for the 3m Euribor. In addition, the prospect of repeating that manipulation was mentioned in a conversation of 19 March 2007 which took place between one of the HSBC traders and the Barclays trader, referred to in recital 329 of the contested decision. The Barclays trader mentions the prospect of repeating that manipulation in a discussion with another HSBC trader on 27 March 2007, referred to in recital 339 of the contested decision.249With regard to the manipulation of 19 March 2007, the Commission has direct evidence showing HSBC’s awareness that it was participating in a single and continuous infringement with other banks.250The Commission is right in identifying, in recital 471 of the contested decision, the conversation of 12 February 2007 as being indicative of HSBC’s awareness of the participation of other banks.251That exchange shows that the Barclays trader turns the conversation towards the profit that could be made from manipulating the spread between two derivatives, specifically futures linked to the 3m Euribor and swaps linked to EONIA on 19 March 2007.252First, it follows from that discussion that it is here that the Barclays trader discloses to HSBC the ‘overall plan’ for the manipulation envisaged: namely, a gradual increase of the ‘buyer’ position on futures linked to the 3m Euribor, followed by concerted action to reduce that rate on 19 March 2007.253In that respect, contrary to what is claimed by the applicants, the later conversation on 13 February 2007, in which the HSBC trader notes that the Barclays trader’s conduct is not coherent with the plan explained the day before, reveals that the HSBC trader has a good comprehension of how the manipulation is to function. The HSBC trader finds it suspicious that the conduct of Barclays departs from the defined strategy. Although the reply from Barclays (‘je clean juste quelque truc’) does not seem to convince him (‘mouai’), the fact remains that the HSBC trader’s focus on the fact that the conduct of Barclays seems to run counter to the envisaged manipulation is a sign of his thorough comprehension.254Second, the Barclays trader made it clear in the conversation of 12 February 2007 that other banks were participating in that manipulation, even though he did not wish to disclose their identity. It is apparent from this that the HSBC trader was entirely aware that other banks were participating in that manipulation.255Thus, even if their identity was not disclosed by the Barclays trader, after that conversation, the HSBC trader was aware of the fact that a certain number of banks were going to lower the Euribor rate on 19 March 2007 by means of concerted action. Accordingly, HSBC must have been aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives within the meaning of the case-law cited in paragraph 198 above.256That conclusion must also be extended to the discussions on the prospect of repeating that manipulation which took place on 19 and 27 March 2007. The HSBC traders who participated in those discussions could reasonably foresee that such repetition would be done in an equivalent manner and thus with other banks.257Furthermore, it must be concluded that HSBC’s participation in that single infringement continued from 12 until 27 March 2007.258In this respect, it is apparent from the settled case-law that the principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 482 and the case-law cited).259Although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 483 and the case-law cited).260In the context of the functioning of the infringement at issue, it is indeed necessary to take into account that the Euribor rate is set on a daily basis. It necessarily follows that the effects of manipulating those rates are limited in time and that the manipulation needs to be repeated in order for those effects to continue (see, to that effect, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 222).261Further, it should be recalled that, in circumstances where the pursuit of an agreement or of concerted practices requires special positive measures, the Commission cannot assume that the cartel has been pursued in the absence of evidence that those measures were adopted (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 223 and the case-law cited).262However, in the present case, it should be noted that on 19 March 2007 not only did HSBC participate in the manipulation planned for that date while being aware of the participation of other banks, but, through their traders, it also discussed the prospect of repeating that manipulation with Barclays, a discussion which was pursued by another HSBC trader on 27 March 2007. It can therefore be concluded that special positive measures were adopted within the meaning of the case-law cited in paragraph 261 above. (2) HSBC’s knowledge of the participation of other banks in the other conduct forming part of the single infringement 263The point at issue here is whether, by virtue of HSBC’s participation in the single infringement, the Commission was entitled to attribute to it all the conduct of the other banks concerned.264It is apparent from the case-law cited in paragraphs 198 and 199 above that it was permissible for the Commission to show either that HSBC was aware of the existence of other offending conduct or that HSBC could reasonably foresee it. Similarly, in accordance with the case-law cited in paragraph 203 above, the Commission is entitled to rely on a body of evidence.265However, it is clear from that case-law that that body of evidence, viewed as a whole, must correspond to firm, precise and consistent evidence. Furthermore, in accordance with the case-law cited in paragraph 204 above, the presumption of innocence means that where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement.266In the first place, it must be stated that the applicants are correct to claim, in essence, that the Commission has failed to demonstrate to the requisite legal standard in the contested decision that HSBC was aware, or should have been aware, of the existence of an ‘overall plan’ with a single aim that gives a reason why HSBC is to be held liable for all forms of conduct forming part of that single aim, regardless of whether or not it was directly involved in it.267For the reasons set out in paragraphs 233 to 235 above, it must be noted that the central element substantiating the existence of such an ‘overall plan’ is that the various forms of conduct referred to in the single infringement found were controlled or directed by the same group of persons.268The applicants are correct to point out that none of HSBC’s traders was in that group of persons. On the contrary, it is apparent from the contested decision that HSBC traders received from the Barclays trader only very fragmented information, which was limited to what was strictly necessary merely for its participation in the manipulation of 19 March 2007 and then in order to repeat that manipulation.269It cannot therefore be concluded that the HSBC traders ought themselves to have extrapolated from the pieces of information which had been communicated to them in the course of well-defined conduct — namely the manipulation of 19 March 2007 — that a stable group of traders whose identity was not disclosed to them was participating in other conduct restricting competition on the EIRD market.270In the second place and for similar reasons, the grounds of the contested decision, summarised in paragraphs 242 to 244 above, do not show that HSBC was aware of the offending conduct of other undertakings or could reasonably foresee it.271Aside from the Commission’s reference to the fact that the Barclays trader explained to the HSBC trader the plan for the manipulation of 19 March 2007 in a way that implied the involvement of other banks, the other evidence put forward by the Commission is, in fact, based on the premiss that the HSBC traders should have been able to infer from that fact that traders from other banks who operate on the EIRD market know each other and that they would undertake other practices which restrict competition that may have an influence on the cash flows generated by EIRDs.272Such a premiss cannot be accepted without disregarding the case-law cited in paragraph 203 above.273In the light of the foregoing, it must be concluded that HSBC’s participation in a single and continuous infringement can be upheld only in respect, first, of its own conduct in that infringement and, second, of the conduct of other banks forming part of the manipulation of 19 March 2007 and any potential repeat of that manipulation.274The Commission was, therefore, wrong to hold HSBC liable for conduct other than that identified in paragraph 273 above. (c) The third plea, relating to HSBC’s intention to participate in the single and continuous infringement 275In their third plea, the applicants claim, in essence, that the condition set out in paragraph 198 above — that an undertaking must intend, through its own conduct, to contribute to the common objectives pursued by all the participants — is not satisfied in so far as it relates to them.276In that context, they submit, in essence, that HSBC could not have been aware that it was participating in a single infringement in view of the diverse nature of the conduct of which it is accused. The applicants also highlight the fact that HSBC participated in the infringement in a different and more secondary way as compared with the main players.277The Commission submits that this plea must be rejected.278In the light of the Court’s finding regarding the fourth plea, as set out in paragraph 274 above, it is sufficient to examine the present plea in relation to the manipulation of 19 March 2007 and the repetition of that manipulation.279In so far as it relates to them, the intention to participate in a single infringement is clear from the evidence put forward by the Commission. With regard, more particularly, to the manipulation of 19 March 2007, while it is true that the HSBC trader seems to have had doubts as to the functioning of that manipulation — as is borne out by the discussion of 13 February 2007 and the regret that he seems to have then felt for having failed to have built up a greater ‘buyer’ position on futures linked to the 3m Euribor — the fact remains that he participated, jointly with traders from other banks, in the conduct that reduced the 3m Euribor rate on 19 March 2007 by asking the person responsible for submissions in his bank to submit low quotes on that day, which that person went on to do.280The third plea in law must therefore be rejected. 3. The fifth plea, alleging an error in law and an infringement of the essential procedural requirements in the course of the administrative procedure 281The applicants maintain that the settlement decision prejudged HSBC’s liability and irremediably impaired the applicants’ right to be heard. They conclude that the contested decision should be annulled on account of an infringement, first, of the principle of the presumption of innocence and, second, of the principles of good administration and of respect for the rights of the defence. They also refer to the statements by Commissioner Almunia on the outcome of the EIRD investigation given prior to the adoption of the contested decision. They also note that they were not given the opportunity to give comments on the statement of objections sent to the parties who decided to settle.282The Commission claims that this plea in law should be rejected.283As regards the ground for complaint alleging that the settlement decision was adopted in breach of the principle of the presumption of innocence, it should be recalled that that principle is a general principle of EU law, currently laid down in Article 48(1) of the Charter of Fundamental Rights, which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73 and the case-law cited).284The principle of the presumption of innocence means that every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 257 and the case-law cited).285In addition, it is settled case-law that the Commission is required during the administrative procedure relating to restrictive practices to respect the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 154 and the case-law cited).286Article 41 of the Charter of Fundamental Rights provides that every person has the right, inter alia, to have his affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155 and the case-law cited).287However, the issue whether any lack of objective impartiality on the part of the Commission which may have arisen from an infringement of the principle of the presumption of innocence with respect to HSBC when the settlement decision was adopted was able to impact the lawfulness of the contested decision is indissociable from the question whether the findings made in that decision are properly supported by the evidence adduced by the Commission (see, to that effect, judgments of 6 July 2000, Volkswagen v Commission, T‑62/98, EU:T:2000:180, paragraph 270, and of 16 June 2011, Bavaria v Commission, T‑235/07, EU:T:2011:283, paragraph 226).288Thus, even if a lack of objective impartiality on the part of the Commission may have led it to find — wrongly — first, that the discussions of 9 and 14 March 2007 in which HSBC participated had an object that restricted competition or, second, that HSBC could be held responsible for certain forms of conduct of other banks which are not linked to the manipulation of 19 March 2007 or any repeat thereof by virtue of the single and continuous infringement, it should be pointed out that the unlawfulness of those aspects of the contested decision has already been established following the examinations of, respectively, the second part of the first plea and the fourth plea.289As regards the other findings made in the contested decision, the irregularity relating to a possible lack of objective impartiality on the part of the Commission would lead to annulment of that decision only if it is established that the content of that decision would have differed if that irregularity had not occurred (judgment of 6 July 2000, Volkswagen v Commission, T‑62/98, EU:T:2000:180, paragraph 283). In the present case, as a result of a comprehensive review of the relevant grounds of that decision, it was found that, with the exception of the aspects mentioned in paragraph 288 above, the Commission had established to the requisite legal standard HSBC’s participation in the infringement at issue. Therefore, there is no reason to assume that, if the settlement decision had not been adopted before the contested decision, the content of the latter would have been different.290In their reply, the applicants claim that, in the circumstances of the present case, the Commission’s lack of objective impartiality is more serious than in the cases that gave rise to the judgments of 6 July 2000, Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraphs 270 and 283) and of 16 June 2011, Bavaria v Commission (T‑235/07, EU:T:2011:283, paragraph 226), since, in those cases, the lack of impartiality arose after the parties had been heard.291However, it must be found that the principle that an irregularity of that type can lead to the annulment of the contested decision only if it has been established that the content of that decision would have differed if that irregularity had not occurred has its origin in the judgment of 16 December 1975, Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraphs 90 and 91). In that regard, it should be noted that that judgment was delivered against a background that is relatively similar to that of the present case, since the applicants were arguing that the Commission had infringed the principle of the right to a fair hearing by issuing certain public statements making the existence of the alleged infringements appear to have been established at a time when the parties concerned had not yet had an opportunity to express a view on the allegations against them.292For similar reasons, the other arguments put forward by the applicants in support of their ground for complaint alleging infringement of the principle of good administration and the ground for complaint alleging infringement of their rights of defence must also be rejected as ineffective.293In the light of the foregoing, the fifth plea in law must be rejected. 4. The effects of the errors established in the context of the first and fourth pleas in law on the lawfulness of Article 1 of the contested decision 294According to Article 1 of the contested decision, ‘the following undertakings have infringed Article 101 of the Treaty and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement regarding Euro Interest Rate Derivatives covering the entire EEA, which consisted of agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the EIRD sector: … (b) [the applicants] from 12 February 2007 to 27 March 2007’.295It should be noted that the errors made by the Commission in its finding relating to the discussions of 9 and 14 March 2007, referred to in paragraphs 166 to 195 above, have no effect on the lawfulness of Article 1 of the contested decision and, in particular, on Article 1(b) of the contested decision, since the conclusion it contains remains substantiated even if those discussions are discounted.296The same applies to the errors made by the Commission relating to the precise determination of the conduct for which HSBC could be held liable by virtue of its participation in a single and continuous infringement, as referred to in paragraphs 263 to 274 above. HSBC’s participation, along with other banks, in the manipulation of 19 March 2007 and the fact that HSBC considered repeating that manipulation in themselves substantiate Article 1(b) of the contested decision to the sufficient legal standard.297However, to the extent that the factors capable of affecting the assessment of the gravity of an infringement include the number and intensity of the incidents of anticompetitive conduct and for the reasons set out in paragraph 123 above, it is in its assessment of whether the amount of the fine is proportionate that the Court may give due effect to the fact that those assessments were vitiated by error. B. Application for annulment of Article 2(b) of the contested decision and, in the alternative, for variation of the amount of the fine imposed 298The applicants contest the lawfulness of Article 2(b) of the contested decision, in which the Commission imposed on them a fine on account of HSBC’s participation in the infringement. That plea can be divided into four parts, since the applicants dispute, first, the use of discounted cash receipts for the purposes of assessing the value of sales, second, the gravity factor applied, third, the additional amount applied and, fourth, the assessment of the mitigating circumstances. The applicants seek, principally, annulment of Article 2(b) of the contested decision and, in the alternative, request that the Court exercise its unlimited jurisdiction in order to reduce the amount of the fine imposed on them.299In the context of the first part of this plea, the applicants complain that the Commission based the value of sales on the basis of cash receipts under EIRDs received by HSBC during the period of the infringement, to which a factor of 98.849% was applied.300The Commission’s reasoning is set out in recitals 639 to 648 of the contested decision.301In the first place, the Commission stated, in recital 639 of the contested decision, that interest rate derivatives did not generate any sales in the usual sense and, consequently, applied a specific proxy for the value of sales, which constitutes a starting point for its determination of the amounts of the fines. In recital 640, the Commission considered it to be preferable not to take as its basis the proxy value of the sales made during the last year and, in view of the short duration of the infringement of some parties, the varying market size of the EIRD business over the infringement period and the differences in the duration of the involvement of the banks concerned, concluded that it was more appropriate to take as its basis the value of sales actually made by the undertakings during the months corresponding to their respective participation in the infringement.302In recital 641 of the contested decision, it stated that sales in the usual sense corresponded to inflows of economic benefit, the form of which was in most cases in cash or cash equivalent and noted that the anticompetitive conduct of this case concerned, notably, the collusion on price components relevant for the cash-flows of EIRDs. For these reasons, it decided to determine the annual value of sales for all parties on the basis of cash receipts, that is to say ‘the cash flows that each bank received from their respective portfolio of EIRDs linked to any Euribor tenor and/or the EONIA and entered into with EEA-located counterparties’.303In recital 642 of the contested decision, it found that, with respect to HSBC, the amount of cash receipts was EUR 16688253649.304In the second place, in recital 643 of the contested decision, the Commission concluded that it was it appropriate to discount the cash receipts figures found in respect of HSBC and the other banks by an appropriate, uniform factor in order to take account of the particularities of the EIRD market, and in particular the netting inherent in derivatives trading. In recital 648 of the contested decision, that uniform factor was set at 98.849%.305The justification for the level of that reduction factor in the contested decision is based on five sets of reasons. First, in recital 644, the Commission took into account the netting inherent in derivatives trading in general, assessed by the International Swap Dealer Association as involving a reduction of between 85% and 90%.306Second, in recital 645, it highlighted the specific nature of EIRD netting, since a comparison of the parties’ cash receipts with the net EIRD cash settlements shows that the application of a rate of between 85% and 90% would lead to fines that were over-deterrent.307Third, in recital 646, it found that the EIRD cartel caused an overcharge that was much lower than the 20% usually caused by that type of cartel in classical industries.308Fourth, in recital 647, the Commission stated that it was not required to apply a precise mathematical formula and had a margin of discretion when determining the amount of each fine.309Fifth, in recital 648, the Commission stated that it had applied to the addressees of the contested decision the same rate as that used to calculate the amounts of the fines imposed on the addressees of the settlement decision.310In the third place, the Commission responded to the criticisms made during the administrative procedure. In that context, in recitals 656 to 662 of the contested decision, it refuted the assertion that the use of discounted cash receipts was inappropriate. In that respect, it claimed that, as compared with net cash receipts and payments suggested by the applicants — which could lead to negative values — the use of discounted cash receipts was more consistent with the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’), according to which sales are the starting point for calculating fines, not profits.311As regards the criticism of the reduction factor, the Commission claimed, inter alia, in recital 710 of the contested decision, that it had been transparent about its intention to discount cash receipts by a uniform factor of at least 97.5%. It also claimed, in recital 713, that it had not applied individual discount factors because they could have given rise to unequal treatment.312In this part of the plea, the applicants essentially put forward three grounds for complaint challenging the legality of the calculation of the value of sales. First, they challenge the very principle of using cash receipts to which a reduction factor of 98.849% is applied. Second, they consider that the Commission was wrong to include the cash receipts arising from contracts that predated the cartel. Third and last, they dispute the statement of reasons on which the reduction factor is based. 1. First ground for complaint, alleging that the Commission was wrong to take discounted cash receipts as its basis 313The applicants state that, while the Commission was right in observing, in recital 639 of the contested decision, that derivatives ‘[did] not generate any sales in the usual sense’, it erred in its assessment of the value of those sales by taking as its basis cash receipts received under EIRDs to which a reduction factor of 98.849% was applied. They complain that the Commission took into account only incoming payments under EIRDs and not outgoing payments, whereas a manipulation of reference rates has effects on both of those aspects. That approach helped vastly to overstate the revenues a bank generates from EIRD trading. They claim that the ground, set out in recital 659 of the contested decision, that using incoming payments cannot lead to no sales or negative sales, does not make cash receipts an appropriate proxy for the value of sales. They argue that the same is true of the statement, in recital 660 of that decision, that it is sales that are the starting point for calculating fines in the 2006 Guidelines.314The Commission contends that it was fully entitled to assess the value of sales by reference to the cash receipts to which a reduction factor has been applied.315It claims that outgoing payments under EIRDs have not been ignored. The purpose of applying the reduction factor is precisely to take account of the netting inherent in derivatives trading. From a deterrence perspective, such an approach would be more appropriate than the net cash receipts and payments approach suggested by the applicants, which could lead to negative values.316As a preliminary point, the Court notes that, with regard to the lawfulness of a decision imposing a fine, the in-depth review, in law and in fact, that the EU judicature is to carry out of all the factors of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU, as referred to in paragraph 44 above, means that it cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the 2006 Guidelines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the law and of the facts (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 62).317In the first place, it must be borne in mind that it is common ground between the parties that EIRDs ‘do not generate any sales in the usual sense’, as is noted in recital 639 of the contested decision.318In the second place, although Article 23(3) of Regulation No 1/2003 refers in general terms to the gravity and duration of the infringement, the methodology favoured by the Commission for the application of that provision in its 2006 Guidelines gives a central role to the concept of ‘value of sales’, as it is used to determine the economic significance of the infringement and the relative size of each undertaking participating in the infringement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76). As provided in paragraph 13 of the 2006 Guidelines: ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA’. In the introduction, those guidelines lay down, in point 6 thereof, that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.319In the third place, the Commission may refrain from applying the method laid down in the 2006 Guidelines where it has reason to do so. The obligation on the Commission to carry out a specific review of each particular situation when imposing sanctions under Article 23 of Regulation No 1/2003 means that it must, where appropriate, depart from the methodology in the 2006 Guidelines if the specific nature of the particular situation so requires. That principle, which is noted in the case-law (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 and 210) is now specifically enshrined in paragraph 37 of the 2006 Guidelines.320In the present case, it must be ascertained whether the Commission did not make an error of assessment when it appraised the value of sales of EIRDs on the basis of discounted cash receipts. That involves, inter alia, examining whether the approach favoured by the Commission made it possible to take into account the netting inherent in EIRDs, since those contracts give rise to both receipts and payments.321It should be borne in mind that, according to paragraphs 15 and 16 of the 2006 Guidelines, in determining the value of sales by an undertaking, the Commission will take that undertaking’s best available figures. Where the figures made available by an undertaking are incomplete or not reliable, the Commission may determine the value of its sales on the basis of the partial figures it has obtained or any other information which it regards as relevant and appropriate.322The approach favoured by the Commission tends to give a better reflection of the value of sales — and therefore the economic importance of the infringement — than the alternative approach proposed by the applicants during the administrative procedure based on net cash receipts and payments. This involves, in essence, taking into account only the balance of the cash flow during the infringement period, namely a figure which is comparable to the profit derived from trading activities.323As the Commission rightly noted in recital 659 of the contested decision, such a limitation would run counter to the logic it applied in the methodology in the 2006 Guidelines when it set the basic amount by reference to the value of sales, namely to reflect the economic significance of the infringement and the size of the involvement of the undertaking concerned.324Thus, since, first, the approach favoured by the Commission is consistent with the logic underlying the choice of value of sales and, second, the applicants did not propose a more appropriate alternative method during the administrative procedure, it cannot be concluded that the principle of using discounted cash receipts is inherently incorrect.325The fact remains that, in the approach favoured by the Commission, ensuring that the determination of the amount of cash receipts is free from flaws is not the only important matter. The determination of the rate of the reduction factor applied is also important.326The latter has an essential role in determining the value of sales, due to the particularly high amount that results from taking account only of cash receipts, that is to say without deducting corresponding payments.327Thus, by way of illustration, by applying the factors relating to the gravity, duration, additional amount and mitigating circumstances found by the Commission in the contested decision, and without prejudice to the assessment of the substance of those factors, the Court notes that a variation of 0.1% in the rate of that factor would affect the final amount of the fine by almost EUR 16221000.328It follows from the foregoing that, in the model favoured by the Commission for the purposes of determining the value of sales, precision in the rate of the reduction factor is fundamental, since the tiniest variation in that factor may have a significant impact on the amount of the fine imposed on the undertakings concerned.329Subject to that reservation, the first ground for complaint must be rejected. 2. Second ground for complaint, alleging that the Commission was wrong to take into account cash receipts from contracts concluded before the start of HSBC’s participation in the infringement 330The applicants argue that the Commission was wrong to take into account discounted cash receipts generated by contracts concluded before HSBC’s alleged conduct.331The Commission contends that that ground for complaint should be rejected.332As the Court has held previously, paragraph 13 of the 2006 Guidelines pursues the objective of adopting, as the starting point for the calculation of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the ‘value of sales’ referred to in paragraph 13 of the Guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not come within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 19).333Consequently, sales made pursuant to contracts which predate the infringement period, can be included in the value of the sales calculated in accordance with paragraph 13 of the 2006 Guidelines, for the purpose of determining the basic amount of the fine, on the same basis as the sales made pursuant to contracts concluded during the infringement period but which were not shown to have specifically been the subject of collusion (judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 20).334Such a solution is particularly applicable to the circumstances of the present case because the Euribor manipulation in which HSBC participated affected the variable rate of contracts linked to the 3m Euribor falling due on 19 March 2007, regardless of whether they were concluded before or after 12 February 2007, the starting point of HSBC’s participation in the infringement.335The second ground for complaint must therefore be rejected. 3. Third ground for complaint, alleging that insufficient reasons were given for the 98.849% reduction factor applied by the Commission 336The applicants submit that the determination of the reduction factor is vitiated by an inadequate statement of reasons, in that it does not enable them to understand the reasons why the basic amount of the fine was set at that level. They claim, inter alia, that that amount takes into account the situation of a hypothetical overcharge of 2 to 4 basis points, without explaining how such an overcharge was realistic in circumstances where one bank could actually move a reference rate by no more than 0.1 basis point, as is made clear in footnote 441 of the contested decision. The applicants state that the fact that the Commission applied a novel and unprecedented approach for determining the value of sales means that observance of the obligation to state reasons was particularly necessary.337The Commission claims that the statement of reasons in respect of the 98.849% reduction factor is sufficient, since the reasons set out in recitals 643 to 646 of the contested decision enable the applicants to understand why that factor was considered appropriate. With regard to the reference to the overcharge of 2 to 4 basis points referred to in recital 646, it is stated in the contested decision that this is a hypothetical overcharge. The Commission states, in this respect, that it has a margin of discretion when determining the amount of each fine and is not required to apply a precise mathematical approach.338It is established case-law that the obligation laid down in the second paragraph of Article 296 TFEU to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasons are well founded, which goes to the substantive legality of the measure at issue. In that vein, the statement of reasons required must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality. As regards, in particular, the statement of reasons in individual decisions, the purpose of the obligation to state the reasons on which such decisions are based is therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 146 to 148 and the case-law cited; judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 114 and 115, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 44).339In addition, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom that measure is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 150; of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116; and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45).340It is also settled case-law that the statement of reasons needed, therefore, in principle to be notified to the person concerned at the same time as the decision adversely affecting him. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the Courts of the European Union (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 149; of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74; and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 46).341With respect to a decision imposing a fine, the Commission must state the reasons, particularly with regard to the amount of the fine and the method of calculation (judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 91). The Commission must indicate in its decision the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine (judgment of 13 July 2011, Schindler Holding and Others v Commission, T‑138/07, EU:T:2011:362, paragraph 243). It must nevertheless explain the weighting and assessment of the factors taken into account (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61).342Where the author of a contested decision provides explanations during the proceedings before the Court to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the EU Courts of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision. Thus, additional explanations going beyond its duty to state reasons may enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them and, more generally, serve to render the administrative act more transparent and facilitate the exercise by the Court of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision, but also the appropriateness of the fine imposed. However, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons (judgment of 16 November 2000, Cascades v Commission, C‑279/98 P, EU:C:2000:626, paragraphs 45 and 47).343The Commission refers to the case-law cited in paragraph 341 above in order to make clear, in essence, that it was not required to explain precisely in the contested decision the figures-based assessment which led to the application of a reduction factor of 98.849%.344In that respect, the Court finds that, in accordance with the case-law referred to in paragraph 339 above, the requirement to state reasons must be assessed by reference to the circumstances of the case. This case has two notable specific features.345First, in the present case the Commission decided to apply the methodology in the 2006 Guidelines rather than departing from it, which it would have been entitled to do in accordance with the case-law referred to in paragraph 319 above and paragraph 37 of the 2006 Guidelines. It therefore chose to apply a methodology in which, for the reasons set out in paragraph 318 above, the determination of the ‘value of sales’ plays a central role, even though it had noted in recital 639 of the contested decision that EIRDs do not generate any sales in the usual sense.346Therefore, it was essential that the statement of reasons in the contested decision should enable the applicants to verify whether the proxy chosen by the Commission may be vitiated by an error enabling its validity to be challenged and the Court to exercise its jurisdiction to review legality.347Second, as has been pointed out in paragraph 325 above, in the approach taken by the Commission the reduction factor plays an essential role because the amount of cash receipts to which it applies is particularly large.348It follows that, in the circumstances of the present case, since the Commission decided to determine the basic amount of the fine by applying a figures-based model in which the reduction factor plays an essential role, it was necessary that the undertakings concerned be placed in a position to understand how it had arrived at a reduction factor set precisely at 98.849% and that the Court be in a position to carry out an in-depth review, in law and in fact, of that factor of the contested decision, in accordance with the case-law cited in paragraph 316 above.349Only recitals 643, 644 to 646 and 648 of the contested decision show that the reduction factor had to be greater than 90%, since, first, the comparison of the cash receipts of parties with the net cash settlements under EIRDs showed that the application of a rate between 85% and 90% would lead to fines that were over-deterrent and, second, the cartel at issue gave rise to a much lower overcharge than the 20% usually caused by that type of cartel in classic industries. In recital 648 of the contested decision, the Commission states, first, that it carried out an estimate of the factors mentioned in recitals 643 to 646 without, however, specifying which value it attributed to those various factors in order to set the rate of reduction precisely at 98.849%. Second, it states that it applied the same methodology in determining the values of sales as that used to calculate the amounts of the fines in the settlement decision. However, no further indication as to the determination of the 98.849% reduction rate is apparent from the settlement decision.350The only other indication in the contested decision appears in recital 710, where the Commission points out that it stated during the administrative procedure that the uniform reduction factor would be at least 97.5%.351Those considerations do not provide the applicants with an explanation of the reasons why the reduction factor was set at 98.849% rather than at a higher level. Further, in the absence of a more detailed explanation of the reasons why those considerations led the reduction factor to be set at that precise level, the Court is unable to conduct an in-depth review, in law and in fact, on a factor of the decision which could have had a significant effect on the amount of the fine imposed on the applicants.352It is true that, following the hearing, the Commission provided the Court with additional explanations concerning the determination of that reduction factor of 98.849%. However, it is apparent from a combined reading of the case-law cited in paragraphs 340 and 342 above that such additional explanations may be taken into account by the Court, as regards the review by the EU Courts of the grounds of the decision, only on the condition that they supplement a statement of reasons which is already sufficient in itself. However, that is not the case here.353In the light of the foregoing, the third ground for complaint in the first part of the plea must be upheld, and Article 2(b) of the contested decision must be annulled, without it being necessary to examine the other parts of the plea.354Since the principal head of claim seeking the annulment of Article 2(b) of the contested decision has been granted, there is no need to examine the form of order sought in the alternative by the applicants. Costs 355Under Article 134(3) of the Rules of Procedure of the Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.356In the present case, the applicants have been unsuccessful as regards their head of claim seeking the annulment of Article 1 of the contested decision and have been successful as regards their head of claim seeking the annulment of Article 2(b) of that decision. In view of those factors, on a fair assessment of the circumstances of the case, each party should be ordered to bear its own costs.On those grounds,THE GENERAL COURT (Second Chamber, Extended Composition)hereby: 1. Annuls Article 2(b) of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)); 2. Dismisses the action as to the remainder; 3. Orders HSBC Holdings plc, HSBC Bank plc and HSBC France to bear their own costs; 4. Orders the European Commission to bear its own costs. PrekButtigiegSchalinBerkeCosteiraDelivered in open court in Luxembourg on 24 September 2019.E. CoulonRegistrarE. ButtigiegActing President( *1 ) Language of the case: English. | b2352-847dc91-4d9b | EN |
Advocate General Bobek: the General Court erred in law when it held that the existence of a teaching contract between an applicant and its legal representative meant that the requirement of independent legal representation was not satisfied | 4 February 2020 ( *1 )(Appeal — Action for annulment — Article 19 of the Statute of the Court of Justice of the European Union — Representation of parties in direct actions before the Courts of the European Union — Lawyer representing the applicant as a third party — Article 47 of the Charter of Fundamental Rights of the European Union)In Joined Cases C‑515/17 P and C‑561/17 P,TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 August 2017 (C‑515/17 P) and 22 September 2017 (C‑561/17 P), Uniwersytet Wrocławski, established in Wrocław (Poland), represented by A. Krawczyk-Giehsmann and K. Szarek, adwokaci, and by K. Słomka, radca prawny,appellant,supported by: Czech Republic, represented by M. Smolek, J. Vláčil and A. Kasalická, acting as Agents,intervener in the appeal,the other party to the proceedings being: Research Executive Agency (REA), represented by S. Payan-Lagrou and V. Canetti, acting as Agents, and by M. Le Berre, avocat, and G. Materna, radca prawny,defendant at first instance (C‑515/17 P),and Republic of Poland, represented by B. Majczyna, D. Lutostańska and A. Siwek-Slusarek, acting as Agents, Krajowa Izba Radców Prawnych, established in Warsaw (Poland), represented by P.K. Rosiak and S. Patyra, radcowie prawni,interveners in the appeal,the other parties to the proceedings being: Uniwersytet Wrocławski, established in Wrocław, represented by A. Krawczyk-Giehsmann and K. Szarek, adwokaci, and by K. Słomka, radca prawny,applicant at first instance,defendant at first instance (C‑561/17 P),THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, A. Prechal, P.G. Xuereb and I. Jarukaitis, Presidents of Chambers, E. Juhász, J. Malenovský, L. Bay Larsen, F. Biltgen (Rapporteur), N. Piçarra and A. Kumin, Judges,Advocate General: M. Bobek,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 11 June 2019,after hearing the Opinion of the Advocate General at the sitting on 24 September 2019,gives the following Judgment 1By their appeals, the Uniwersytet Wrocławski (University of Wrocław, Poland) and the Republic of Poland seek the setting aside of the order of the General Court of the European Union of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407) (‘the order under appeal’), by which that court dismissed as manifestly inadmissible the action brought by the University of Wrocław seeking, first, annulment of the decisions of the Research Executive Agency (REA), acting under powers delegated by the European Commission, terminating the Cossar grant agreement (No 252908) and requiring that university to repay the sums of EUR 36 508.37, EUR 58 031.38 and EUR 6 286.68 and to pay damages in the amount of EUR 5 803.14, and, second, reimbursement by the REA of the corresponding sums plus interest calculated from the date of payment until the date of reimbursement. Legal context European Union law 2Under Article 19 of the Statute of the Court of Justice of the European Union, applicable to the General Court under the first paragraph of Article 53 thereof:‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.The States, other than the Member States, which are parties to the Agreement on the European Economic Area and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in [the] same manner.Other parties must be represented by a lawyer.Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’3Article 51(1) of the Rules of Procedure of the General Court provides:‘A party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute.’ Polish law 4Polish law recognises, alongside the profession of lawyer, the profession of legal adviser (radca prawny). Legal advisers may request admission to the Bar and be authorised to represent their clients before the Polish courts. Background to the dispute 5The background to the dispute may be summarised as follows.6In connection with a programme for research, technological development and demonstration activities, the REA concluded a grant agreement with the University of Wrocław which stated, inter alia, that the researcher who was employed on a full-time basis in connection with the subsidised activity was not authorised to receive any income except for that relating to his research work.7However, it became apparent that the researcher in question was also receiving remuneration for other activities, with the result that the REA terminated the grant agreement, sent a debit note to the University of Wrocław for a sum of EUR 36 508.37, and informed that body that it was withdrawing a sum of EUR 6 286.68 directly from the guarantee fund as provided for in the grant agreement. The University of Wrocław paid the sum corresponding to that debit note.8Following an investigation conducted by the European Anti-Fraud Office (OLAF), the REA sent the University of Wrocław two additional debit notes amounting to EUR 58 031.38 — the outstanding balance of the grant — and EUR 5 803.14 in damages payable under the penalty clause laid down in the grant agreement, respectively. The University of Wrocław also paid those two debit notes. Procedure before the General Court and the order under appeal 9By application lodged at the Registry of the General Court on 25 March 2016, the University of Wrocław brought an action seeking, first, annulment of the decisions of the REA terminating the grant agreement and requiring it to repay a part of the subsidies in question and to pay damages, and, second, reimbursement of the corresponding sums, together with interest calculated from the date of payment of those sums by that university until the date of reimbursement of those sums by the REA.10In its defence, the REA raised an objection of inadmissibility in respect of that action, alleging, in particular, that the legal adviser representing the University of Wrocław was employed by a research centre of that university’s Faculty of Law and Management, and that he did not therefore satisfy the condition of independence required by the Statute.11The University of Wrocław argued that, although the legal adviser representing it before the General Court had, in the past, been connected to it by an employment contract, this was no longer the case by the time it brought the action at first instance. Indeed, since 3 October 2015, that legal adviser has been connected to the university by a civil law contract for the provision of lecturing services. That contract is, according to the university, characterised by the lack of any hierarchical relationship and cannot, therefore, be regarded as an employment contract.12In paragraph 14 of the order under appeal, the General Court indicated that the third and fourth paragraphs of Article 19 of the Statute, applicable to proceedings before the General Court under Article 53 thereof, provides that ‘non-privileged’ parties must be represented by a lawyer and that only a lawyer authorised to practise before a court of a Member State may represent or assist such parties before the Court.13In paragraphs 16 and 17 of the order under appeal, the General Court noted, regarding those two cumulative conditions, that, unlike the authorisation to practise before a court of a Member State, the concept of ‘lawyer’ does not include any explicit reference to the national law of the Member States for the purposes of determining its meaning and scope. It specified that, according to the settled case-law of the Court of Justice, that concept must be interpreted, as far as possible, autonomously, having regard to the context and the purpose of the provision in question, without reference to national law.14Thus, the General Court held, in paragraph 18 of the order under appeal, referring to the conception of the lawyer’s role in the legal order of the European Union, which is derived from the legal traditions common to the Member States and on which Article 19 of the Statute is based, and, inter alia, to the judgments of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157, paragraph 24), of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others (C‑550/07 P, EU:C:2010:512, paragraph 42), and of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 23), that the lawyer’s role is that of collaborating in the administration of justice and of being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs.15It inferred from this, in paragraph 19 of the order under appeal, that the requirement for a lawyer to be independent means that there must be no employment relationship between the lawyer and his or her client, the concept of ‘independence’ being determined not only positively, that is by reference to professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship.16In paragraph 20 of the order under appeal, the General Court considered that those findings were applicable in the case at hand, namely in a situation where a legal adviser is connected to the party he or she is supposed to represent by way of a service contract, inasmuch as, even if, formally, it were to be held that such a contract does not give rise to an employment relationship between those two parties, the fact remains that such a situation creates a risk that the professional opinion of that legal adviser might be, at least partly, influenced by his or her working environment, as the Court of Justice recalled, in essence, in paragraph 25 of the judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553).17Thus, the General Court held, in paragraph 21 of the order under appeal, that, because the application initiating proceedings had been signed by such a legal adviser, the action at first instance had not been brought by a person meeting the requirements of the third and fourth paragraphs of Article 19 of the Statute and Article 51(1) of the Rules of Procedure of the General Court. Consequently, it dismissed that action as being manifestly inadmissible. Procedure before the Court of Justice and forms of order sought 18By decision of the President of the Court of 24 November 2017, the two appeals were joined for the purposes of the written and oral procedure and the judgment.19On 6 February 2018 the Czech Republic applied for leave to intervene in the joined appeals. By decision of 31 May 2018, the President of the Court granted the Czech Republic leave to intervene.20By order of the President of the Court of 5 July 2018, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, not published, EU:C:2018:553), the Krajowa Izba Radców Prawnych (National Chamber of Legal Advisers, Poland) was granted leave to intervene in Case C‑561/17 P in support of the form of order sought by the Republic of Poland.21By order of the President of the Court of 27 February 2019, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, not published, EU:C:2019:174), the application for leave to intervene submitted by the Association of Corporate Counsel Europe was refused.22By its appeal in Case C‑515/17 P, the University of Wrocław, supported by the Czech Republic, claims that the Court should:–set aside the order under appeal;declare that the action at first instance was properly brought; andorder the REA to bear the costs in their entirety.23By its appeal in Case C‑561/17 P, the Republic of Poland, supported by the Czech Republic and the National Chamber of Legal Advisers, claims that the Court should:refer the case back to the General Court for reconsideration;order each of the parties to bear its own costs; andassign the case to the Grand Chamber, in accordance with the third paragraph of Article 16 of the Statute.24The REA contends that the Court should:dismiss the appeals;order the University of Wrocław and the Republic of Poland to pay the costs; andorder the Czech Republic and the National Chamber of Legal Advisers to bear their own costs. The appeals 25In support of its appeal in Case C‑515/17 P, the University of Wrocław relies on two grounds of appeal, alleging that the General Court erred in its interpretation of Article 19 of the Statute and that it provided an insufficient statement of reasons in the order under appeal, respectively. In support of its appeal in Case C‑561/17 P, the Republic of Poland raises three grounds of appeal, alleging that the General Court (i) erred in its interpretation of that provision, (ii) failed to observe the principles of legal certainty and effective judicial protection, and (iii) provided an insufficient statement of reasons in that order.26In the light of the connection between them, the first ground of appeal in both appeals and the second ground of appeal in Case C‑561/17 P, alleging that the General Court erred in its interpretation of Article 19 of the Statute and that it failed to observe the principles of legal certainty and effective judicial protection, must be examined together. Arguments of the parties 27By its first ground of appeal, the University of Wrocław criticises the General Court for holding that a legal adviser, connected to the party he is representing by a contract for the supply of services under which he is called upon, inter alia, to give lectures, does not have the requisite independence from his principal that would enable him to represent that principal in proceedings before the Courts of the European Union.28By the first part of its first ground of appeal, the University of Wrocław argues that the nature and the main characteristics of the contract for the supply of services at issue in the present case do not permit that contract to be regarded as an employment contract, because, inter alia, the hierarchical relationship which is characteristic of the latter type of contract is missing.29By the second part of that ground of appeal, the University of Wrocław submits that the ground of the order under appeal according to which any legal relationship between a party and its legal representative may influence that representative’s legal opinion is at odds with the principles of proportionality and subsidiarity, in that it gives the EU institutions the exclusive power to decide who may validly appear before the Courts of the European Union.30By the third part of that ground of appeal, the University of Wrocław, supported by the Czech Republic and the National Chamber of Legal Advisers, complains that the General Court failed to take into consideration national law, and, more specifically, Polish law, which guarantees that a legal adviser is independent from and is in no way subordinate to third parties. It emphasises that, like the profession of lawyer, the profession of legal adviser serves both the interests of justice and the interests of the persons with whose rights of defence the legal adviser is entrusted, is based on public trust and is governed by a professional code of conduct.31By the first part of its first ground of appeal, the Republic of Poland argues, in the first place, that there is no basis for the General Court’s interpretation of Article 19 of the Statute in the order under appeal in either the legal traditions common to the Member States or EU law. In that regard, the Republic of Poland emphasises that the General Court contradicts itself inasmuch as it considers that the lawyer’s role is drawn from the legal traditions common to the Member States and interprets the concept of ‘lawyer’ without referring to national law.32In the second place, the Republic of Poland submits that the assessment of independence vis-à-vis the principal may not be carried out without reference being made to the guarantees derived from various national laws.33In the third place, the Republic of Poland considers that the concept of ‘independence’ used in the order under appeal disregards the reality of practising as a lawyer, inasmuch as that concept is based on the premiss that an in-house lawyer, who is practising in the context of an employment relationship, will be subject to greater pressure from his or her employer than an external lawyer, who is only subject to pressure from his or her client.34In the fourth place, the Republic of Poland argues that, were the Court of Justice to abide by the solution provided by the General Court, based on the current case-law of the Court of Justice relating to the representation of parties before the Courts of the European Union, this would have the result of creating a system where two levels of required independence would be applicable to the same lawyer: one level before the national courts and another, stricter level before the Courts of the European Union.35The Czech Republic considers in that context that any limitation of the right of lawyers who have no employment relationship with their clients to represent those clients must be interpreted strictly.36By the second part of its first ground of appeal, the Republic of Poland argues that the General Court’s interpretation of Article 19 of the Statute goes beyond the limits of the current case-law of the Court of Justice relating to the representation of parties before the Courts of the European Union.37First, that case-law links the requirement for the lawyer to be independent solely to the negative condition of there being no employment contract between that lawyer and his or her client. However, in the present case, the General Court itself found, in paragraph 20 of the order under appeal, that the signatory of the action at first instance was not connected to the University of Wrocław by an employment contract. In that regard, the Republic of Poland argues that the General Court was wrong to decide, on the basis of applying, by analogy, the judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553), that the existence of a civil law contract connecting the parties in question was sufficient for a finding that that university’s legal representative did not satisfy the condition of independence.38Second, the Republic of Poland criticises the order under appeal inasmuch as the General Court only took into consideration the contract concluded between the legal adviser and the University of Wrocław relating to the teaching assignment, but failed to analyse the links connecting the parties in relation to the legal assistance provided.39The National Chamber of Legal Advisers emphasises that the General Court erred in its line of reasoning, which is tantamount to considering that, in order for a lawyer to be totally independent, he or she must have no connection whatsoever with his or her client’s working environment. It argues that it is difficult to conceive of a legal representative being able to act without being subject to any influence whatsoever from his or her client’s immediate working environment.40By its second ground of appeal, the Republic of Poland argues that, as the order under appeal does not specify the criteria that would permit assessment of the degree of independence required by the General Court, that order is at odds with the principle of legal certainty. In addition, in so far as the result of a finding that the legal representative is not independent is the dismissal of the action, the applicant concerned would be deprived of both an effective remedy and its right of access to a court.41The Czech Republic recalls that representation by a lawyer before the courts is part of the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Forbidding an applicant to conclude a legal representation agreement with a lawyer with whom it also has a contractual connection is liable to expose that applicant to additional costs.42The National Chamber of Legal Advisers considers that not only the act of prohibiting the representation of a party referred to in the third and fourth paragraphs of Article 19 of the Statute by a lawyer who is contractually connected to that party, but also the situation resulting from that prohibition, namely the dismissal of the action with no possibility of rectifying the alleged procedural defect, is a limitation of the right to an effective remedy before the General Court protected by Article 47 of the Charter.43The REA pleads, first of all, the inadmissibility of both appeals in so far as they raise arguments relating to the assessment of the facts and are based on pleas in law and arguments that have already been discussed before the General Court. Next, it argues that the University of Wrocław’s appeal is inadmissible in so far as it is based on facts relating to the situation of the lawyer concerned which were not submitted to the General Court. Lastly, it contends that the arguments used by the Czech Republic and the National Chamber of Legal Advisers in their statements in intervention are inadmissible inasmuch as they refer to infringement of Article 47 of the Charter; no such argument has been put forward by either the University of Wrocław or the Republic of Poland. The Czech Republic’s line of argument is also inadmissible inasmuch as it does not identify any specific paragraph of the order under appeal.44As regards the substance, the REA contends that the line of argument according to which Article 19 of the Statute must be interpreted on the basis of national rules entails replacing that article, which governs the representation of parties before the Courts of the European Union, with national rules, determined on a case-by-case basis. Thus, it argues that, far from being a ‘limitation’, the General Court’s interpretation is a guarantee that all EU lawyers will be subject to the same conditions as regards representation before the Court.45Furthermore, it maintains that the General Court has not gone beyond the existing case-law of the Court of Justice in this area, which is more wide-ranging than the appeals suggest, inasmuch as that case-law has already laid down the requirement that the adviser must be sufficiently distant from the party he or she is representing.46It contends that, in any event, the line of argument based on Article 47 of the Charter must be rejected as unfounded, in so far as the inadmissibility of the action would not prevent the University of Wrocław from being represented by another adviser in order to bring new proceedings before the General Court on the basis of Article 272 TFEU. Findings of the Court Admissibility 47Regarding the pleas of inadmissibility raised by the REA, first, on the ground that the appeals contain arguments relating to the assessment of the facts, it should be borne in mind that it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute that the General Court has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts. That assessment does not constitute, save where the evidence produced before the General Court has been distorted, a question of law which is subject, as such, to review by the Court of Justice. When the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them.48In the present case, in order to assess the nature and substance of the professional relationship between the University of Wrocław and its legal representative, the General Court relied on elements of a factual nature, the characterisation of which may be reviewed by the Court of Justice in the light of the proper interpretation of Article 19 of the Statute.49Secondly, in so far as the REA argues that the appeals confine themselves to raising arguments that have already been discussed before the General Court, it should be borne in mind that, where an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be raised again in the course of an appeal. If an appellant could not thus base its appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 124 and the case-law cited).50Thirdly, regarding the REA’s argument that the University of Wrocław has raised new facts in its appeal, it is sufficient to point out that, in any event, those facts are irrelevant for the resolution of the present dispute.51Fourthly, and as regards the statements in intervention made by the Czech Republic and the National Chamber of Legal Advisers, it should be borne in mind that a party which, pursuant to Article 40 of the Statute, is granted leave to intervene in a case before the Court of Justice may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties, so that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 116).52However, in so far as the Republic of Poland is relying, in particular, on a failure to observe the principle of effective judicial protection guaranteed by Article 47 of the Charter, the arguments raised by the Czech Republic and the National Chamber of Legal Advisers as referred to in paragraphs 41 and 42 above are not such as to alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the Republic of Poland.53Fifthly, as regards the REA’s argument relating to the Czech Republic’s failure to identify specific paragraphs of the order under appeal, it must be pointed out that the Czech Republic, by supporting the respective arguments of the University of Wrocław and the Republic of Poland, is referring to the same paragraphs of that order as those parties.54Consequently, the objections of inadmissibility raised by the REA must be rejected. Substance 55Regarding the substance, and more specifically the issue of the representation of a party not covered by the first two paragraphs of Article 19 of the Statute before the Courts of the European Union, the General Court correctly recalled, in paragraph 16 of the order under appeal, that that article contains two separate, but cumulative, conditions. Thus, the first condition, set out in the third paragraph of that article, lays down the requirement for such a party to be represented by a lawyer. The second condition, contained in the fourth paragraph of that article, provides that the lawyer representing that party must be authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement (see, to that effect, order of 20 February 2008, Comunidad Autónoma de Valencia v Commission, C‑363/06 P, not published, EU:C:2008:99, paragraph 21).56Regarding that second condition, it is apparent from the wording of the fourth paragraph of Article 19 of the Statute that the meaning and scope of that condition must be interpreted by reference to the national law concerned. In the present case, it is common ground that that condition was satisfied by the legal adviser representing the University of Wrocław in the action at first instance.57By contrast, as regards the first condition, relating to the concept of ‘lawyer’, the Court of Justice has held that, as there is no reference in the third paragraph of Article 19 of the Statute to the national law of the Member States, that concept must be given an autonomous and uniform interpretation throughout the European Union, taking into account not only the wording of that provision, but also its context and purpose (see, to that effect, in particular, order of 20 February 2008, Comunidad Autónoma de Valencia v Commission, C‑363/06 P, not published, EU:C:2008:99, paragraph 25 and the case-law cited), it being specified however that that concept, for the purposes of that article, is without prejudice to the recognised possibility for persons authorised, under national law, to represent a party in a dispute to represent that same party before the Court of Justice in the context of a reference for a preliminary ruling.58In that regard, it is apparent from the wording of the third paragraph of Article 19 of the Statute, and in particular from the use of the term ‘represented’, that a ‘party’ as referred to in that provision, whatever that party’s standing, is not authorised to act on its own behalf before a Court of the European Union, but must use the services of a third party. Other provisions of that Statute or of the Rules of Procedure of the Court of Justice, such as the first paragraph of Article 21 of the Statute and Article 44(1)(b), Article 57(1) and Article 119(1) of those Rules of Procedure, also confirm that a party and its legal representative cannot be one and the same person (orders of 5 December 1996, Lopes v Court of Justice, C‑174/96 P, EU:C:1996:473, paragraph 11; of 16 March 2006, Correia de Matos v Commission, C‑200/05 P, not published, EU:C:2006:187, paragraph 10; and of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 23).59Given that, regarding direct actions, no derogation from or exception to that obligation is provided for by the Statute or by the Rules of Procedure of the Court of Justice and of the General Court, the submission of an application signed by the applicant itself is not sufficient for the purpose of bringing an action, even if the applicant is a lawyer authorised to plead before a national court (see, to that effect, orders of 5 December 1996, Lopes v Court of Justice, C‑174/96 P, EU:C:1996:473, paragraphs 8 and 10; of 16 March 2006, Correia de Matos v Commission, C‑200/05 P, not published, EU:C:2006:187, paragraph 11; and of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 24).60The foregoing is confirmed by the context of the third paragraph of Article 19 of the Statute. It is clear from that provision that the legal representation of a party not covered by the first two paragraphs of that article can be carried out only by a lawyer, whereas the parties covered by those first two paragraphs may be represented by an agent who may, if necessary, be assisted by an adviser or by a lawyer.61That finding is borne out by the objective of parties not covered by the first two paragraphs of Article 19 of the Statute being represented by a lawyer, which is, on the one hand, to prevent private parties from acting on their own behalf before the Courts without using an intermediary and, on the other, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he or she represents (see, to that effect, orders of 5 September 2013, ClientEarth v Council, C‑573/11 P, not published, EU:C:2013:564, paragraph 14; of 4 December 2014, ADR Center v Commission, C‑259/14 P, not published, EU:C:2014:2417, paragraph 25; and of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 27).62In that regard, it should be emphasised that, while the task of representation by a lawyer referred to in the third and fourth paragraphs of Article 19 of the Statute must be carried out in the interests of the sound administration of justice, the objective of that task is, above all, as was also noted by the Advocate General in point 104 of his Opinion, to protect and defend the principal’s interests to the greatest possible extent, acting in full independence and in line with the law and professional rules and codes of conduct.63As the General Court correctly recalled in paragraph 19 of the order under appeal, the concept of the independence of lawyers, in the specific context of Article 19 of the Statute, is determined not only negatively, that is to say, by the absence of an employment relationship, but also positively, that is by reference to professional ethical obligations (see, to that effect, judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 24 and the case-law cited).64In that context, the lawyer’s duty of independence is to be understood not as the lack of any connection whatsoever between the lawyer and his or her client, but the lack of connections which have a manifestly detrimental effect on his or her capacity to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent.65In that regard, the Court of Justice has previously held that a lawyer who has been granted extensive administrative and financial powers which place his or her function at a high executive level within the legal person he or she is representing, such that his or her status as an independent third party is compromised, is not sufficiently independent from that legal person (see, to that effect, order of 29 September 2010, EREF v Commission, C‑74/10 P and C‑75/10 P, not published, EU:C:2010:557, paragraphs 50 and 51); nor is a lawyer who holds a high-level management position within the legal person he or she is representing (see, to that effect, order of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 25) or a lawyer who holds shares in, and is the president of the board of administration of the company he or she is representing (order of 4 December 2014, ADR Center v Commission, C‑259/14 P, not published, EU:C:2014:2417, paragraph 27).66However, the situation at issue in the present case, in which, as can be seen from the order under appeal, the legal adviser not only was not defending the interests of the University of Wrocław in the context of a hierarchical relationship with that university, but also was simply connected to the university by a contract for the provision of lecturing services at that university, cannot be regarded as equivalent to those situations.67Such a connection is not sufficient for a finding that that legal adviser was in a situation that had a manifestly detrimental effect on his capacity to defend his client’s interests to the greatest possible extent, in full independence.68Consequently, by holding, in paragraph 20 of the order under appeal, that the mere existence of a civil law contract for the provision of lecturing services between the University of Wrocław and the legal adviser representing that university in the action at first instance was liable to have an effect on the independence of that adviser because there was a risk that the professional opinion of that adviser would be, at least partly, influenced by his working environment, the General Court erred in law.69As a result, the first ground of appeal relied on by the University of Wrocław and the Republic of Poland in support of their respective appeals must be upheld. Accordingly, and without it being necessary to examine the other arguments raised in the second ground of appeal in Case C‑561/17 P, relating to the principle of legal certainty and the right to an effective remedy, or the other grounds raised in the appeals, the order under appeal must be set aside. Referral of the case back to the General Court 70In accordance with the first paragraph of Article 61 of the Statute, if the appeal is well founded, the Court of Justice, when setting aside the decision of the General Court, may give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.71In the present case, as the General Court has not given a ruling on the substance, it is appropriate to refer the case back to that court. Costs 72Since the case has been referred back to the General Court, the costs relating to the appeal proceedings must be reserved.On those grounds, the Court (Grand Chamber) hereby: 1. Sets aside the order of the General Court of the European Union of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407). 2. Refers Case T‑137/16 back to the General Court of the European Union. 3. Reserves the costs. [Signatures]( *1 ) Language of the case: Polish | f336a-5d62337-4d9e | EN |
Advocate General Tanchev: the Court should declare that the requests for a preliminary ruling relating to the national measures establishing a regime for disciplinary proceedings against judges in Poland are inadmissible | 26 March 2020 ( *1 )(References for a preliminary ruling — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principle of judicial independence — Disciplinary regime applicable to national judges — Jurisdiction of the Court — Article 267 TFUE — Admissibility — Interpretation necessary for the referring court to be able to give judgment — Meaning)In Joined Cases C‑558/18 and C‑563/18,TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Łodzi (Regional Court, Łódz, Poland) (C‑558/18) and from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) (C‑563/18), made by decisions of 31 August 2018 and 4 September 2018, received at the Court on 3 September 2018 and 5 September 2018 respectively, in the proceedings Miasto Łowicz v Skarb Państwa — Wojewoda Łódzki, intervening parties: Prokurator Generalny, represented by the Prokuratura Krajowa, formerly the Prokuratura Regionalna w Łodzi, Rzecznik Praw Obywatelskich (C‑558/18),and Prokurator Generalny, represented by the Prokuratura Krajowa, formerly the Prokuratura Okręgowa w Płocku, VX, WW, XV (C‑563/18),THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal (Rapporteur), M. Vilaras, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, M. Ilešič, J. Malenovský, L. Bay Larsen, T. von Danwitz, C. Toader, K. Jürimäe, C. Lycourgos and N. Piçarra, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 18 June 2019,after considering the observations submitted on behalf of:–the Skarb Państwa — Wojewoda Łódzki, by J. Zasada and L. Jurek, acting as Agents,the Prokurator Generalny, represented by the Prokuratura Krajowa, A. Reczka, S. Bańko, B. Górecka, J. Szubert and P. Tarczyński,the Rzecznik Praw Obywatelskich, by M. Taborowski and M. Wróblewski, acting as Agents,the Polish Government, by B. Majczyna and P. Zwolak, acting as Agents, and by W. Gontarski, adwokat,the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,the Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents,the European Commission, by K. Herrmann and H. Krämer, acting as Agents,the EFTA Surveillance Authority, by I.O. Vilhjálmsdóttir and C. Howdle, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 24 September 2019,gives the following Judgment 1These requests for a preliminary ruling concern the interpretation of Article 19(1) TEU.2The requests have been made, first, in proceedings between Miasto Łowicz (town of Łowicz, Poland) and the Skarb Państwa — Wojewoda Łódzki (State Treasury — Governor of Łódź Province, Poland) (‘the State Treasury’) concerning a claim for payment of public subsidies (Case C‑558/18) and, secondly, in criminal proceedings against VX, WW and XV for participation in kidnappings for financial gain (Case C‑563/18). The disputes in the main proceedings and the questions referred for a preliminary ruling 3As is apparent from the order for reference in Case C‑558/18, the town of Łowicz brought proceedings against the State Treasury before the Sąd Okręgowy w Łodzi (Regional Court of Łódź, Poland), under the ustawa o dochodach jednostek samorządu terytorialnego (Law on the income of local government units) of 13 November 2003 (Dz. U. of 2018, item 317), seeking payment of 2357148 Polish zlotys (PLN) (approximately EUR 547612) in respect of subsidies intended to cover the costs incurred by that town between 2005 and 2015 for the performance of certain tasks entrusted to it in respect of government administration.4Following an objection by the State Treasury, the order for payment of that sum, issued at the first phase of the main proceedings, was declared to be unenforceable, and the case is now being examined under the ordinary procedure. According to the referring court, it is highly likely, in view of the evidence gathered in those proceedings, that the decision which it is called upon to make will be unfavourable to the State Treasury.5As regards Case C‑563/18, it is apparent from the order for reference of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) that VX, WW and XV are being prosecuted before that court in respect of two kidnappings for financial gain perpetrated in 2002 and 2003 respectively. VX, WW and XV, who admitted the charges against them and cooperated with the criminal authorities, applied to be granted the status of ‘cooperative witnesses’ (‘mały świadek koronny’), which means that the referring court must consider whether to allow them an exceptional reduction in their sentences under the provisions of the Criminal Code.6The requests for a preliminary ruling express concern that disciplinary proceedings could be brought against the single judge in charge of each case in the main proceedings if that judge were to give a ruling along the lines outlined in paragraphs 4 and 5 above.7Those concerns are prompted, in essence, by the fact that, as a result of various recent legislative reforms which took place in Poland, the objectivity and impartiality of disciplinary proceedings concerning judges are no longer guaranteed and the independence of the referring courts is thereby affected.8In that regard, those courts consider, in the first place, that the composition of the Izba Dyscyplinarna Sądu Nawyższego (Disciplinary Chamber of the Supreme Court, Poland), newly established within that court by virtue of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, items 5, 650, 771, 847, 848, 1045 and 1443) and called upon under that same law to hear and determine disciplinary cases concerning judges, both at first instance and on appeal, is problematic.9The judges called upon to sit in that Disciplinary Chamber were appointed by the President of the Republic on a proposal from the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland). As a result of the recent amendments to the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. of 2011, item 714), by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3), the National Council of the Judiciary, whose 15 members with judicial status are now appointed by the Sejm (lower chamber of the Polish Parliament) and not, as before, by their peers, no longer constitutes a body which is independent of political authority.10In the second place, the newly composed National Council of the Judiciary has itself become a quasi-disciplinary body, since it has jurisdiction to hear appeals against decisions of court presidents on the transfer of judges to other judicial formations. Moreover, a large number of court presidents were appointed by the current Minister for Justice and some of them have been elected members of the National Council of the Judiciary.11In the third place, the new provisions inserted in the ustawa — Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U. of 2018, items 23, 3, 5, 106, 138, 771, 848, 1000, 1045 and 1443), which deal with the disciplinary proceedings applicable to judges of the ordinary courts, have conferred on the Minister for Justice, who also fulfils the role of chief prosecutor, practically unlimited power in that regard.12The Minister for Justice is empowered, first, to appoint the disciplinary officer responsible for cases concerning judges sitting in the ordinary courts, secondly, to initiate investigation procedures and, where the disciplinary officer refuses to launch a disciplinary procedure, to oblige that officer to do so, thirdly, to appoint a disciplinary officer on an ad hoc basis to deal with a particular case and, fourthly, to appoint the judges who act as disciplinary judges in an appeal court.13Furthermore, the considerable influence thus conferred on the Minister for Justice does not have adequate safeguards. First, the legal definition of the infringements which give rise to the imposition of disciplinary measures on judges is unclear. Secondly, disciplinary proceedings may be conducted even in the justified absence of the judge under investigation or of his or her representative. Thirdly, evidence obtained improperly can now be used in such proceedings. Fourthly, no provision has been made for any guarantee as to the length of the disciplinary proceedings. Fifthly, the Minister for Justice may apply for disciplinary proceedings to be reopened up to five years after their closure or for a decision to be delivered should new evidence come to light.14The referring courts consider that the disciplinary proceedings thus conceived confer on the legislature and the executive the means to remove judges whose decisions displease them and accordingly to influence the judicial decisions they are called upon to make through the deterrent effect that the prospect of such proceedings has on such persons.15According to those courts, it follows from all of the foregoing that, as regards the court decision which each of them is required to make in the dispute before them in the main proceedings, it is necessary to determine, first of all, whether the abovementioned national rules on the disciplinary regime for judges undermines the independence of those judges by depriving the litigants concerned of their right to an effective judicial remedy guaranteed by the second subparagraph of Article 19(1) TEU. That provision, read in conjunction with Article 2 and Article 4(3) TEU, requires the Member States to ensure that bodies, like the referring courts, which are empowered to rule on questions relating to the application or interpretation of EU law, satisfy the requirements inherent in the right to effective judicial protection; those requirements include the independence of those bodies which is of essential importance.16In those circumstances, the Sąd Okręgowy w Łodzi (Regional Court, Łódz) and the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) each decided to stay the proceedings and to refer a question to the Court of Justice for a preliminary ruling.17The question referred by the Sąd Okręgowy w Łodzi (Regional Court, Łódz) is worded as follows:‘On a proper construction of the second subparagraph of Article 19(1) of the Treaty on European Union, does the resulting obligation for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law preclude provisions which materially increase the risk of undermining the guarantee of independent disciplinary proceedings against judges in Poland through:(1)political influence on the conduct of disciplinary proceedings;(2)the emerging risk that the system of disciplinary measures will be used to control the content of judicial decisions politically; and(3)the possibility of evidence obtained by [means of a criminal act] being used in disciplinary proceedings against judges?’18The Sąd Okręgowy w Warszawie (Regional Court, Warsaw) referred the following question to the Court:‘On a proper construction of the second subparagraph of Article 19(1) of the Treaty on European Union, does the resulting obligation for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law preclude provisions which remove the guarantee of independent disciplinary proceedings against judges in Poland by permitting disciplinary proceedings to be conducted under political influence, giving rise to a risk that the system of disciplinary measures will be used to politically control the content of judicial decisions?’ Procedure before the Court 19By decision of the President of the Court of Justice of 1 October 2018, Cases C‑558/18 and C‑563/18 were joined for the purposes of the written and oral procedure, and the judgment.20In the course of the written part of the procedure before the Court, the Sąd Okręgowy w Łodzi (Regional Court, Łódź), by letters of 7 and 11 December 2018, and the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), by letters of 30 October and 12 December 2018, informed the Court that both judges who had referred the questions to the Court for a preliminary ruling in those cases had received from an assistant to the disciplinary officer responsible for cases relating to judges in the ordinary courts a summons to attend a hearing, as witnesses, concerning the grounds which led them to refer those questions and the issue whether judicial independence could have been undermined by the fact that the two judges in question did not adopt their respective orders for reference independently.21In those letters, the two referring courts also note, first, that during those hearings questions relating to the confidentiality of deliberations were put to the judges concerned. Secondly, those judges both received from the assistant to the disciplinary officer an order to file a written statement concerning potential ‘ultra vires conduct’ for having referred those questions for a preliminary ruling, in breach of the conditions laid down in Article 267 TFEU.22By documents lodged at the Court Registry on 24 December 2019, 13 February and 2 March 2020, the Rzecznik Praw Obywatelskich (Ombudsman, Poland) requested that the oral part of the procedure be reopened.23In support of his request of 24 December 2019, the Ombudsman argues that the Advocate General stated in his Opinion that the present requests for a preliminary ruling should be declared inadmissible on the ground, in essence, that the Court does not have sufficient factual and legal material to enable it to rule on those requests and to establish whether there has been a breach of the Member States’ obligation to guarantee judicial independence. In those circumstances, the Court should order the reopening of the oral part of the procedure in order, first, to allow the parties to express their views on such a potential ground for the inadmissibility of those requests, which, as the Advocate General stated, was neither advanced nor discussed by the parties and, secondly, to clarify further the circumstances of the cases as required.24In the same request, the Ombudsman also refers to new facts that have arisen since the closure of the oral part of the procedure and which demonstrate that the questions put to the Court are not hypothetical and may therefore have a decisive influence on the decision which the Court is called upon to give in the present joined cases. Those new facts consist, first, of a number of specific cases in which disciplinary proceedings have recently been brought against judges as a result of the content of decisions which they adopted and, in particular, decisions in which those judges intended to follow the lessons to be drawn from the judgment of the Court of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982).25Secondly, on 20 December 2019, the Sejm adopted the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts, the Law on the Sąd Najwyższy (Supreme Court) and several other laws), which is intended to bolster considerably the disciplinary regime applicable to judges, and which provides, inter alia — in order to render that judgment of the Court of Justice ineffective — that, if the validity of a judge’s appointment or the legitimacy of a constitutional body is called into question by a court, disciplinary measures will be taken against the judge or judges sitting in that court. To those ends, that law now makes any examination of complaints relating to the lack of independence of a judge or court subject to the exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych Sądu Nawyższego (Chamber of Extraordinary Control and Public Affairs of the Supreme Court, Poland), which has recently been established and which exhibits defects — in particular in relation to the process for appointing its members — that are similar to those highlighted by the Court of Justice in relation to the Disciplinary Chamber of the Supreme Court in its judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982).26In his further request of 13 February 2020, the Ombudsman states, first, that the Law of 20 December 2019 has since been signed by the President of the Republic of Poland, on 4 February 2020, and published (Dz. U. of 2020, item 190), and that its entry into force was set for 14 February 2020. Secondly, he refers to the continuance and to the growing number of disciplinary proceedings and administrative measures and, thereafter, to the adoption of disciplinary measures against judges, in particular for the reasons already mentioned in paragraph 24 above. In his further request of 2 March 2020, the Ombudsman refers to the fact that the Prokuratura Krajowa (National Prosecutor, Poland), under the Law of 20 December 2019, recently brought an action before the Disciplinary Chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in Case C‑563/18 and to authorise criminal proceedings against that judge for allowing the media to record the pronouncement of a decision handed down in a case concerning a challenge to the change of location of the sittings of the Sejm, in which the judge ordered the prosecutor to resume the investigation relating to that move. According to the Ombudsman, those new developments should be taken into consideration by the Court for the purposes of assessing the admissibility and substance of the questions referred to it in the present cases, which justifies the Court reopening the oral part of the procedure.27In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 61 and the case-law cited).28Secondly, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, must make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning which led to that Opinion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions which were examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 62 and the case-law cited).29However, the Court may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.30In the present case, however, after hearing the Advocate General, the Court considers that it has at its disposal, following the written procedure and the hearing which took place before it, all the information necessary to give a ruling and that the new facts relied on by the Ombudsman are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give. Furthermore, the Court finds that the present joined cases do not have to be decided on the basis of an argument which was not the subject of exchanges between the interested persons. In such circumstances, it is not necessary to order the reopening of the oral procedure. The jurisdiction of the Court 31The State Treasury, the Prokurator Generalny (General Public Prosecutor, Poland) and the Polish Government maintain that the Court has no jurisdiction to hear the present requests for a preliminary ruling, arguing, in essence, that both the disputes in the main proceedings, which are purely domestic in nature and do not fall within the areas covered by EU law, and the national provisions relating to the organisation of national courts and the disciplinary measures applicable to judges, which fall within the exclusive competence of the Member States, are outside the scope of EU law.32In that regard, it should be recalled that, under the second subparagraph of Article 19(1) TEU, the interpretation of which is, in the present case, the subject of the questions referred to the Court for a preliminary ruling, Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law. It is therefore for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34 and the case-law cited, and of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 99 and the case-law cited).33As regards the scope of the second subparagraph of Article 19(1) TEU, it follows, moreover, from the Court’s case-law that that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter of Fundamental Rights of the European Union (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29, and of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 82 and the case-law cited).34Thus, the second subparagraph of Article 19(1) TEU is intended inter alia to apply to any national body which can rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fall within the fields covered by that law (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40, and of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 83 and the case-law cited).35This is true of the referring courts, which may be called upon, in their capacity as ordinary Polish courts, to rule on questions relating to the application or interpretation of EU law and, as ‘courts or tribunals’ within the meaning of EU law, come under the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, so that those courts must meet the requirements of effective judicial protection (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 104).36Furthermore, it should be recalled that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU (judgment of 5 November 2019, Commission v Poland(Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 102 and the case-law cited).37It follows from the foregoing that the Court has jurisdiction to interpret the second subparagraph of Article 19(1) TEU. Admissibility 38The Public Treasury, the General Prosecutor and the Polish Government also submit that the requests for a preliminary ruling are inadmissible on the following grounds. First, the orders for reference do not satisfy the requirements arising from Article 94 of the Rules of Procedure, in particular because they have not specified the link between the provision of EU law for which an interpretation is sought and the national legislation applicable to the disputes in the main proceedings.39Secondly, the questions referred bear no relation to the procedures and the subject matter of the disputes in the main proceedings and are general and hypothetical in nature, in that the referring courts are not called upon to apply, in those disputes, either the national provisions relating to the disciplinary regime for judges or the second subparagraph of Article 19(1) TEU. The hypothetical nature of the questions also stems from the fact that the opening of disciplinary proceedings following the decisions which the referring courts will deliver in the main proceedings appears, at this stage, to be a mere possibility, so that the questions do not relate to the disputes in the main proceedings, but to possible future disputes which might arise between the judges concerned and the national disciplinary authorities. An answer to those questions will not affect the obligation of the referring courts to rule on the cases in the main proceedings on the basis of the applicable substantive and procedural provisions of national law, nor will it alter the scope of that obligation. It is not therefore necessary for the resolution of those cases.40The European Commission also maintains that the present requests for a preliminary ruling are inadmissible, in so far as the rule of EU law to which the questions put to the Court relate bears no relation to the subject matter of the disputes in the main proceedings, which concern, first, the payment of expenses incurred by a Polish town in the performance of certain tasks entrusted to it in respect of government administration and, secondly, criminal proceedings brought against certain persons as a result of their involvement in kidnappings, in which an exceptional reduction in the sentence is anticipated. Moreover, the answer which the Court might give to the questions referred for a preliminary ruling would not be of a sort capable of determining the content of any preliminary decision which the referring courts would be required to make, either in terms of procedure or as regards their own jurisdiction, before ruling, as necessary, on the substance of the disputes in the main proceedings. Such an answer would not therefore be necessary for the resolution of those disputes, but would amount to the Court giving an advisory opinion on general or hypothetical questions.41In those various respects, it should be noted at the outset that, in their respective requests for a preliminary ruling, the referring courts, first, described, to the requisite legal standard, the circumstances of the disputes in the main proceedings and, secondly, set out in detail the provisions constituting the new national legal framework on the disciplinary regime applicable to judges. Thirdly, those courts have indicated both the reasons why, as national courts capable of ruling on the application or interpretation of EU law, they entertained doubts as to the compatibility of those rules with the second subparagraph of Article 19(1) TEU, and the reasons why they considered that an answer to the questions of interpretation addressed to the Court was necessary in view of the judgments which they are called upon to deliver in the main proceedings that are pending, given their fear, in the particular context of those proceedings, that the judges concerned may be subject to disciplinary proceedings if they were to rule on those disputes along the lines set out, respectively, in paragraphs 4 and 5 of this judgment.42In so doing, those courts have satisfied the requirements laid down in Article 94 of the Rules of Procedure, including, inter alia, the requirement in paragraph (c) of that article, by adequately stating the reasons which prompted them to inquire about the interpretation of the second subparagraph of Article 19(1) TEU and, in particular, the connection which they see between that Treaty provision and the national provisions which, in their view, are liable to influence the judicial process before delivery of their judgments and, accordingly, the outcome of the actions brought before them in the main proceedings.43Furthermore, it must be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgments of 15 May 2003, Salzmann, C‑300/01, EU:C:2003:283, paragraph 31, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 16 and the case-law cited).44However, it has also been consistently held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgments of 18 October 1990, Dzodzi, C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 33, and of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 29 and the case-law cited). The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgments of 15 June 1995, Zabala Erasun and Others, C‑422/93 to C‑424/93, EU:C:1995:183, paragraph 29, and of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited).45As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (see, to that effect, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraph 35).46The Court has thus repeatedly held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 11; of 4 October 1991, Society for the Protection of Unborn Children Ireland, C‑159/90, EU:C:1991:378, paragraphs 12 and 13; and of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 28 and the case-law cited).47In that context, the task of the Court must be distinguished according to whether it is requested to give a preliminary ruling or to rule on an action for failure to fulfil obligations. Whereas, in an action for failure to fulfil obligations, the Court must ascertain whether the national measure or practice challenged by the Commission or another Member State, contravenes EU law in general, without there being any need for there to be a relevant dispute before the national courts, the Court’s function in proceedings for a preliminary ruling is, by contrast, to help the referring court to resolve the specific dispute pending before that court (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 49).48In such proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court (see, to that effect, order of 25 May 1998, Nour, C‑361/97, EU:C:1998:250, paragraph 15 and the case-law cited).49In the present case, it must be held, first, that the disputes in the main proceedings are not substantively connected to EU law, in particular to the second subparagraph of Article 19(1) TEU to which the questions referred relate, and that the referring courts are not therefore required to apply that law, or that provision, in order to determine the substantive solution to be given to those disputes. In that respect, the present joined cases can be distinguished, in particular, from the case which gave rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), in which the referring court had to rule on an action seeking annulment of administrative decisions reducing the remuneration of the members of the Tribunal de Contas (Court of Auditors, Portugal) pursuant to national legislation which provided for such a reduction and whose compatibility with the second subparagraph of Article 19(1) TEU was challenged before that referring court.50Secondly, although the Court has already held to be admissible questions referred for a preliminary ruling on the interpretation of procedural provisions of EU law which the referring court is required to apply in order to deliver its judgment (see, to that effect, inter alia, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraphs 41 and 42), that is not the scope of the questions raised in the present joined cases.51Thirdly, an answer by the Court to those questions does not appear capable of providing the referring courts with an interpretation of EU law which would allow them to resolve procedural questions of national law before being able to rule on the substance of the disputes before them. In that regard, the present cases also differ, for example, from the cases giving rise to the judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982), in which the interpretation sought from the Court was such as to have a bearing on the issue of determining which court had jurisdiction for the purposes of settling disputes relating to EU law, as is clear specifically from paragraphs 100, 112 and 113 of that judgment.52In those circumstances, it is not apparent from the orders for reference that there is a connecting factor between the provision of EU law to which the questions referred for a preliminary ruling relate and the disputes in the main proceedings, and which makes it necessary to have the interpretation sought so that the referring courts may, by applying the guidance provided by such an interpretation, make the decisions needed to rule on those disputes.53Those questions do not therefore concern an interpretation of EU law which meets an objective need for the resolution of those disputes, but are of a general nature.54As regards the circumstance, mentioned by the national courts in their letters referred to in paragraphs 20 and 21 above, in which the two judges who made the present requests for a preliminary ruling were, as a result of those requests, the subject of an investigation prior to the initiation of potential disciplinary proceedings against them, it should be noted that the disputes in the main proceedings in respect of which the Court is requested to provide a preliminary ruling in the present joined cases do not relate to that circumstance. Moreover, it should be noted, as the Polish Government stated in its written observations and at the hearing before the Court, that those investigation proceedings have since been closed on the ground that no disciplinary misconduct, involving a failure to respect the dignity of their office as a result of making those requests for a preliminary ruling, had been established.55In that context, it is important to note, as is clear from the Court’s settled case-law, that the keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 176, and judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 41).56In accordance with equally settled case-law, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them. National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgments of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 26, and of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 42 and the case-law cited).57Therefore, a rule of national law cannot prevent a national court from using that discretion, which is an inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU and of the functions of the court responsible for the application of EU law, entrusted by that provision to the national courts (judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 103 and the case-law cited).58Provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they submitted a reference to the Court for a preliminary ruling cannot therefore be permitted (see, to that effect, order of the President of the Court of 1 October 2018, Miasto Łowicz and Prokuratura Okręgowa w Płocku, C‑558/18 and C‑563/18, not published, EU:C:2018:923, paragraph 21). Indeed, the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference after it was made is likely to undermine the effective exercise by the national judges concerned of the discretion and the functions referred to in the preceding paragraph.59For those judges, not being exposed to disciplinary proceedings or measures for having exercised such a discretion to bring a matter before the Court, which is exclusively within their jurisdiction, also constitutes a guarantee that is essential to judicial independence (see, to that effect, order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraph 47), which independence is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 54 and the case-law cited).60It follows from all of the foregoing that the present requests for a preliminary ruling must be declared inadmissible. Costs 61Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: The requests for a preliminary ruling made by the Sąd Okręgowy w Łodzi (Regional Court, Łódź, Poland) and by the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), by decisions of 31 August 2018 and 4 September 2018, are inadmissible. [Signatures]( *1 ) Language of the case: Polish | 28e13-6a914c4-4133 | EN |
The prohibition on processing certain categories of sensitive personal data applies also to operators of search engines | 24 September 2019 ( *1 )(Reference for a preliminary ruling — Personal data — Protection of individuals with regard to the processing of personal data contained on websites — Directive 95/46/EC — Regulation (EU) 2016/679 — Search engines on the internet — Processing of data appearing on websites — Special categories of data referred to in Article 8 of Directive 95/46 and Articles 9 and 10 of Regulation 2016/679 — Applicability of those articles to operators of a search engine — Extent of that operator’s obligations with respect to those articles — Publication of data on websites solely for journalistic purposes or the purpose of artistic or literary expression — Effect on the handling of a request for de-referencing — Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union)In Case C‑136/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 24 February 2017, received at the Court on 15 March 2017, in the proceedings GC, AF, BH, ED v Commission nationale de l’informatique et des libertés (CNIL), interveners: Premier ministre, Google LLC, successor to Google Inc.,THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Arabadjiev, A. Prechal, T. von Danwitz, C. Toader and F. Biltgen, Presidents of Chambers, M. Ilešič (Rapporteur), L. Bay Larsen, M. Safjan, D. Šváby, C.G. Fernlund, C. Vajda and S. Rodin, Judges,Advocate General: M. Szpunar,Registrar: V. Giacobbo-Peyronnel, administrator,having regard to the written procedure and further to the hearing on 11 September 2018,after considering the observations submitted on behalf of:–AF, by himself,BH, by L. Boré, avocat,Commission nationale de l’informatique et des libertés (CNIL), by I. Falque-Pierrotin, J. Lessi and G. Le Grand, acting as Agents,Google LLC, by P. Spinosi, Y. Pelosi and W. Maxwell, avocats,the French Government, by D. Colas, R. Coesme, E. de Moustier and S. Ghiandoni, acting as Agents,Ireland, by M. Browne, G. Hodge, J. Quaney and A. Joyce, acting as Agents, and M. Gray, Barrister-at-Law,the Greek Government, by E.-M. Mamouna, G. Papadaki, E. Zisi and S. Papaioannou, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and F. De Luca and P. Gentili, avvocati dello Stato,the Austrian Government, by G. Eberhard and G. Kunnert, acting as Agents,the Polish Government, by B. Majczyna, M. Pawlicka and J. Sawicka, acting as Agents,the United Kingdom Government, by S. Brandon, acting as Agent, and C. Knight, Barrister,the European Commission, by A. Buchet, H. Kranenborg and D. Nardi, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 10 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).2The request has been made in proceedings between GC, AF, BH and ED and the Commission nationale de l’informatique et des libertés (French Data Protection Authority, France) (‘the CNIL’) concerning four decisions of the CNIL refusing to serve formal notice on Google Inc., now Google LLC, to de-reference various links appearing in the lists of results displayed following searches of their names and leading to web pages published by third parties. Legal context EU law Directive 95/46 3The object of Directive 95/46, in accordance with Article 1(1), is to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data, and to eliminate obstacles to the free flow of personal data.4Recitals 33 and 34 of Directive 95/46 state:‘(33)Whereas data which are capable by their nature of infringing fundamental freedoms or privacy should not be processed unless the data subject gives his explicit consent; whereas, however, derogations from this prohibition must be explicitly provided for in respect of specific needs …(34)Whereas Member States must also be authorised, when justified by grounds of important public interest, to derogate from the prohibition on processing sensitive categories of data …; whereas it is incumbent on them, however, to provide specific and suitable safeguards so as to protect the fundamental rights and the privacy of individuals;’5Article 2 of Directive 95/46 provides:‘For the purposes of this Directive:(a)“personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); …(b)“processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;…(d)“controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; …(h)“the data subject’s consent” shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.’6In Chapter II, Section I of Directive 95/46, headed ‘Principles relating to data quality’, Article 6 reads as follows:‘1. Member States shall provide that personal data must be:processed fairly and lawfully;collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. …(c)adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified;(e)kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use.2. It shall be for the controller to ensure that paragraph 1 is complied with.’7In Chapter II, Section II of Directive 95/46, headed ‘Criteria for making data processing legitimate’, Article 7 provides:‘Member States shall provide that personal data may be processed only if:(f)processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1).’8Articles 8 and 9 of Directive 95/46 appear in Chapter II, Section III, headed ‘Special categories of processing’. Article 8, headed ‘The processing of special categories of data’, provides:‘1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.2. Paragraph 1 shall not apply where:the data subject has given his explicit consent to the processing of those data, except where the laws of the Member State provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject’s giving his consent; orthe processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims.4. Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of the supervisory authority.5. Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority.Member States may provide that data relating to administrative sanctions or judgments in civil cases shall also be processed under the control of official authority.…’9Article 9 of Directive 95/46, headed ‘Processing of personal data and freedom of expression’, states:‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’10Article 12 of Directive 95/46, headed ‘Right of access’, provides:‘Member States shall guarantee every data subject the right to obtain from the controller:as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data;11Article 14 of Directive 95/46, headed ‘The data subject’s right to object’, provides:‘Member States shall grant the data subject the right:at least in the cases referred to in Article 7(e) and (f), to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data;12Article 28 of Directive 95/46, headed ‘Supervisory authority’, reads as follows:‘1. Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.3. Each authority shall in particular be endowed with:investigative powers, such as powers of access to data forming the subject matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties,effective powers of intervention, such as, for example, that … of ordering the blocking, erasure or destruction of data, of imposing a temporary or definitive ban on processing …– …Decisions by the supervisory authority which give rise to complaints may be appealed against through the courts.4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The person concerned shall be informed of the outcome of the claim.6. Each supervisory authority is competent, whatever the national law applicable to the processing in question, to exercise, on the territory of its own Member State, the powers conferred on it in accordance with paragraph 3. Each authority may be requested to exercise its powers by an authority of another Member State.The supervisory authorities shall cooperate with one another to the extent necessary for the performance of their duties, in particular by exchanging all useful information. Regulation (EU) 2016/679 13Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 (General Data Protection Regulation) (OJ 2016 L 119, p. 1, and corrigendum OJ 2018 L 127, p. 2) applies, in accordance with Article 99(2), from 25 May 2018. Article 94(1) of that regulation provides that Directive 95/46 is repealed with effect from that date.14Recitals 1, 4, 51, 52 and 65 of Regulation 2016/679 state:‘(1)The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (the “Charter”) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her.(4)The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, … the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, …(51)Personal data which are, by their nature, particularly sensitive in relation to fundamental rights and freedoms merit specific protection as the context of their processing could create significant risks to the fundamental rights and freedoms. …(52)Derogating from the prohibition on processing special categories of personal data should also be allowed when provided for in Union or Member State law and subject to suitable safeguards, so as to protect personal data and other fundamental rights …(65)A data subject should have … a “right to be forgotten” where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject. … However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information …’15Article 4(11) of Regulation 2016/679 defines ‘consent’ as ‘any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her’.16Article 5 of Regulation 2016/679, headed ‘Principles relating to processing of personal data’, provides in paragraph 1(c) to (e):‘Personal data shall be:adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (“data minimisation”);accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (“accuracy”);kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; … (“storage limitation”).’17Article 9 of Regulation 2016/679, headed ‘Processing of special categories of personal data’, provides:‘1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.2. Paragraph 1 shall not apply if one of the following applies:the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;processing relates to personal data which are manifestly made public by the data subject;(g)processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;18Article 10 of Regulation 2016/679, headed ‘Processing of personal data relating to criminal convictions and offences’, provides:‘Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.’19Article 17 of Regulation 2016/679, headed ‘Right to erasure (“right to be forgotten”)’, reads as follows:‘1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);the personal data have been unlawfully processed;the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:for exercising the right of freedom of expression and information;20Article 21 of Regulation 2016/679, headed ‘Right to object’, provides in paragraph 1:‘The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.’21Article 85 of Regulation 2016/679, headed ‘Processing and freedom of expression and information’, provides:‘1. Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.2. For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information. French law 22Directive 95/46 was implemented in French law by Loi No 78-17, du 6 janvier 1978, relative à l’informatique, aux fichiers et aux libertés (Law No 78-17 of 6 January 1978 on information technology, data files and civil liberties), in the version applicable to the facts of the main proceedings.23Article 11 of that law states that, among its functions, the CNIL is to ensure that the processing of personal data is carried out in accordance with the provisions of that law, and that, on that basis, it is to receive claims, petitions and complaints relating to the processing of personal data and is to inform their authors of their outcome. The disputes in the main proceedings and the questions referred for a preliminary ruling 24GC, AF, BH and ED each requested Google to de-reference, in the list of results displayed by the search engine operated by Google in response to searches against their names, various links leading to web pages published by third parties; Google, however, refused to do this.25More particularly, GC requested the de-referencing of a link leading to a satirical photomontage placed online pseudonymously on 18 February 2011 on YouTube, depicting her alongside the mayor of a municipality whom she served as head of cabinet and explicitly referring to an intimate relationship between them and to the impact of that relationship on her own political career. The photomontage was placed online during the campaign for the cantonal elections in which GC was then a candidate. On the date on which her request for de-referencing was refused she was neither a local councillor nor a candidate for local elective office and no longer served as the head of cabinet of the mayor of the municipality.26AF requested de-referencing of links leading to an article in the daily newspaper Libération of 9 September 2008, reproduced on the site of the Centre contre les manipulations mentales (Centre against mental manipulation) (CCMM) (France), concerning the suicide of a member of the Church of Scientology in December 2006. AF is mentioned in that article in his capacity as public relations officer of the Church of Scientology, an occupation which he has since ceased to exercise. Furthermore, the author of the article states that he contacted AF in order to obtain his version of the facts and describes the comments received on that occasion.27BH requested the de-referencing of links leading to articles, mainly in the press, concerning the judicial investigation opened in June 1995 into the funding of the Parti républicain (PR), in which he was questioned with a number of businessmen and political personalities. The proceedings against him were closed by an order discharging him on 26 February 2010. Most of the links are to articles contemporaneous with the opening of the investigation and therefore do not mention the outcome of the proceedings.28ED requested the de-referencing of links leading to two articles published in Nice Matin and Le Figaro reporting the criminal hearing during which he was sentenced to 7 years’ imprisonment and an additional penalty of 10 years’ social and judicial supervision for sexual assaults on children under the age of 15. One of the accounts of the court proceedings also mentions several intimate details relating to ED that were revealed at the hearing.29Following the rejections by Google of their requests for de-referencing, the applicants in the main proceedings brought complaints before the CNIL, seeking for Google to be ordered to de-reference the links in question. By letters dated 24 April 2015, 28 August 2015, 21 March 2016 and 9 May 2016 respectively, the president of the CNIL informed them that the procedures on their complaints had been closed.30The applicants in the main proceedings thereupon made applications to the referring court, the Conseil d’État (Council of State, France), against those refusals of the CNIL to serve formal notice on Google to carry out the de-referencing requested. The applications were joined by the referring court.31Finding that the applications raised several serious difficulties of interpretation of Directive 95/46, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:Having regard to the specific responsibilities, powers and capabilities of the operator of a search engine, does the prohibition imposed on other controllers of processing data caught by Article 8(1) and (5) of Directive 95/46, subject to the exceptions laid down there, also apply to this operator as the controller of processing by means of that search engine?(2)If Question 1 should be answered in the affirmative:[(a)]Must Article 8(1) and (5) of Directive 95/46 be interpreted as meaning that the prohibition so imposed on the operator of a search engine of processing data covered by those provisions, subject to the exceptions laid down by that directive, would require the operator to grant as a matter of course the requests for de-referencing in relation to links to web pages concerning such data?[(b)]From that perspective, how must the exceptions laid down in Article 8(2)(a) and (e) of Directive 95/46 be interpreted, when they apply to the operator of a search engine, in the light of its specific responsibilities, powers and capabilities? In particular, may such an operator refuse a request for de-referencing, if it establishes that the links at issue lead to content which, although comprising data falling within the categories listed in Article 8(1), is also covered by the exceptions laid down by Article 8(2) of the directive, in particular points (a) and (e)?[(c)]Similarly, when the links subject to the request for de-referencing lead to processing of personal data carried out solely for journalistic purposes or for those of artistic or literary expression, on which basis, in accordance with Article 9 of Directive 95/46, data within the categories mentioned in Article 8(1) and (5) of the directive may be collected and processed, must the provisions of Directive 95/46 be interpreted as allowing the operator of a search engine, on that ground, to refuse a request for de-referencing?(3)If Question 1 should be answered in the negative:Which specific requirements of Directive 95/46 must be met by the operator of a search engine, in view of its responsibilities, powers and capabilities?When the operator establishes that the web pages at the end of the links subject to the request for de-referencing comprise data whose publication on those pages is unlawful, must the provisions of Directive 95/46 be interpreted as:requiring the operator of a search engine to remove those links from the list of results displayed following a search made on the basis of the name of the person making the request; ormeaning only that it is to take that factor into consideration in assessing the merits of the request for de-referencing, ormeaning that this factor has no bearing on the assessment it is to make?Furthermore, if that factor is not irrelevant, how is the lawfulness of the publication on web pages of the data at issue which stem from processing falling outside the territorial scope of Directive 95/46 and, accordingly, of the national laws implementing it to be assessed?Irrespective of the answer to be given to Question 1:whether or not publication of the personal data on the web page at the end of the link at issue is lawful, must the provisions of Directive 95/46 be interpreted as:requiring the operator of a search engine, when the person making the request establishes that the data in question have become incomplete or inaccurate, or are no longer up to date, to grant the corresponding request for de-referencing;more specifically, requiring the operator of a search engine, when the person making the request shows that, having regard to the conduct of the legal proceedings, the information relating to an earlier stage of those proceedings is no longer consistent with the current reality of his situation, to de-reference the links to web pages comprising such information?Must Article 8(5) of Directive 95/46 be interpreted as meaning that information relating to the investigation of an individual or reporting a trial and the resulting conviction and sentencing constitutes data relating to offences and to criminal convictions? More generally, does a web page comprising data referring to the convictions of or legal proceedings involving a natural person fall within the ambit of those provisions?’ Consideration of the questions referred 32The questions referred concern the interpretation of Directive 95/46, which was applicable at the time when the request for a preliminary ruling was submitted. That directive was repealed with effect from 25 May 2018, from which date Regulation 2016/679 applies.33The Court will consider the questions referred from the point of view of Directive 95/46, while also taking Regulation 2016/679 into account in its analysis of them, in order to ensure that its answers will in any event be of use to the referring court. Question 1 34By its first question, the referring court essentially asks whether the provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out for the needs of the functioning of the search engine.35It must be recalled, first, that the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) of Directive 95/46 when that information contains personal data and, second, that the operator of the search engine must be regarded as the ‘controller’ in respect of that processing within the meaning of Article 2(d) of that directive (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 41).36The processing of personal data in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites, consisting in loading those data on an internet page, and that activity plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject’s name, including to internet users who otherwise would not have found the web page on which those data are published. Moreover, the organisation and aggregation of information published on the internet that are effected by search engines with the aim of facilitating their users’ access to that information may, when users carry out their search on the basis of an individual’s name, result in them obtaining through the list of results a structured overview of the information relating to that individual that can be found on the internet, enabling them to establish a more or less detailed profile of the data subject (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraphs 35 to 37).37Consequently, in so far as the activity of a search engine is liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of his responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 38).38The first question referred aims to determine whether, in the context of his responsibilities, powers and capabilities, the operator of a search engine must also comply with the requirements laid down by Directive 95/46 with respect to the special categories of personal data mentioned in Article 8(1) and (5) of the directive, where such data are among the information published or placed on the internet by third parties and are the subject of processing by that operator for the purposes of the functioning of his search engine.39As regards the special categories of data, Article 8(1) of Directive 95/46 provides that the Member States are to prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of data concerning health or sex life. Certain exceptions to and derogations from that prohibition are provided for inter alia in Article 8(2) of the directive.40Article 8(5) of Directive 95/46 states that the processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority. Member States may provide that data relating to administrative sanctions or judgments in civil cases are also to be processed under the control of official authority.41The content of Article 8(1) and (5) of Directive 95/46 was taken over, with some changes, in Article 9(1) and Article 10 of Regulation 2016/679.42It must be stated, first, that it is apparent from the wording of those provisions of Directive 95/46 and Regulation 2016/679 that the prohibition and restrictions laid down by them apply, subject to the exceptions provided for by the directive and the regulation, to every kind of processing of the special categories of data referred to in those provisions and to all controllers carrying out such processing.43Next, no other provision of that directive or that regulation provides for a general derogation from that prohibition or those restrictions for processing such as that carried out in the context of the activity of a search engine. On the contrary, as already pointed out in paragraph 37 above, it follows from the general scheme of those instruments that the operator of a search engine must, in the same way as any other controller, ensure, in the context of his responsibilities, powers and capabilities, that the processing of personal data carried out by him complies with the respective requirements of Directive 95/46 or Regulation 2016/679.44Finally, an interpretation of Article 8(1) and (5) of Directive 95/46 or Article 9(1) and Article 10 of Regulation 2016/679 that excluded a priori and generally the activity of a search engine from the specific requirements laid down by those provisions for processing relating to the special categories of data referred to there would run counter to the purpose of those provisions, namely to ensure enhanced protection as regards such processing, which, because of the particular sensitivity of the data, is liable to constitute, as also follows from recital 33 of that directive and recital 51 of that regulation, a particularly serious interference with the fundamental rights to privacy and the protection of personal data, guaranteed by Articles 7 and 8 of the Charter.45While, contrary to the submissions of Google in particular, the specific features of the processing carried out by the operator of a search engine in connection with the activity of the search engine cannot thus justify the operator being exempted from compliance with Article 8(1) and (5) of Directive 95/46 and Article 9(1) and Article 10 of Regulation 2016/679, those specific features may, however, have an effect on the extent of the operator’s responsibility and obligations under those provisions.46It must be observed in this respect that, as the European Commission emphasises, the operator of a search engine is responsible not because personal data referred to in those provisions appear on a web page published by a third party but because of the referencing of that page and in particular the display of the link to that web page in the list of results presented to internet users following a search on the basis of an individual’s name, since such a display of the link in such a list is liable significantly to affect the data subject’s fundamental rights to privacy and to the protection of the personal data relating to him (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 80).47In those circumstances, having regard to the responsibilities, powers and capabilities of the operator of a search engine as the controller of the processing carried out in connection with the activity of the search engine, the prohibitions and restrictions in Article 8(1) and (5) of Directive 95/46 and Articles 9(1) and 10 of Regulation 2016/679 — as indicated by the Advocate General in point 56 of his Opinion and as stated in essence by all the parties who have expressed an opinion on the point — can apply to that operator only by reason of that referencing and thus via a verification, under the supervision of the competent national authorities, on the basis of a request by the data subject.48It follows from the above that the answer to Question 1 is that the provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out in connection with the activity of the search engine, on the occasion of a verification performed by that operator, under the supervision of the competent national authorities, following a request by the data subject. Question 2 49By its second question, which consists of three parts, the referring court essentially askswhether the provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de-referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions;whether Article 8(2)(a) and (e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de-referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by one of the exceptions laid down in Article 8(2)(a) and (e) of the directive; andwhether the provisions of Directive 95/46 must be interpreted as meaning that the operator of a search engine may also refuse to accede to a request for de-referencing on the ground that the links whose de-referencing is requested lead to web pages on which the personal data falling within the special categories referred to in Article 8(1) or (5) of the directive are published solely for journalistic purposes or those of artistic or literary expression and the publication is therefore covered by the exception in Article 9 of the directive.50It should be noted, as a preliminary point, that in the context of Directive 95/46 requests for de-referencing such as those at issue in the main proceedings have their basis in particular in Article 12(b) of the directive, under which the Member States are to guarantee data subjects the right to obtain from the controller the erasure of data whose processing does not comply with the directive.51Moreover, in accordance with Article 14(a) of Directive 95/46, the Member States are to grant the data subject the right, at least in the cases referred to in Article 7(e) and (f) of the directive, to object at any time on compelling legitimate grounds relating to his or her particular situation to the processing of data relating to him or her, save where otherwise provided by national legislation.52In this respect, it must be recalled that the Court has held that Article 12(b) and Article 14(a) of Directive 95/46 must be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 88).53The Court has also held that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him or her personally should, at the present point in time, no longer be linked to his or her name by a list of results displayed following a search made on the basis of his or her name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his or her fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his or her fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 99).54With respect to Regulation 2016/679, the EU legislature laid down, in Article 17 of the regulation, a provision specifically governing the ‘right to erasure’, also called the ‘right to be forgotten’ in the heading of that article.55In accordance with Article 17(1) of the regulation, the data subject has the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller has the obligation to erase those data without undue delay where one of the grounds set out in that provision applies. As grounds, the provision mentions the cases in which the personal data are no longer necessary in relation to the purposes for which they were processed; the data subject withdraws consent on which the processing is based and there is no other legal ground for the processing; the data subject objects to the processing pursuant to Article 21(1) or (2) of the regulation, which replaces Article 14 of Directive 95/46; the data have been unlawfully processed; the data have to be erased for compliance with a legal obligation; or the data have been collected in relation to the offer of information society services to children.56However, Article 17(3) of Regulation 2016/679 states that Article 17(1) of the regulation is not to apply to the extent that the processing is necessary on one of the grounds set out in Article 17(3). Among those grounds is, in Article 17(3)(a) of the regulation, the exercise of the right of freedom of expression and information.57The circumstance that Article 17(3)(a) of Regulation 2016/679 now expressly provides that the data subject’s right to erasure is excluded where the processing is necessary for the exercise of the right of information, guaranteed by Article 11 of the Charter, is an expression of the fact that the right to protection of personal data is not an absolute right but, as recital 4 of the regulation states, must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality (see also judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 48, and Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 136).58In that context, it should be recalled that Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 50).59Regulation 2016/679, in particular Article 17(3)(a), thus expressly lays down the requirement to strike a balance between the fundamental rights to privacy and protection of personal data guaranteed by Articles 7 and 8 of the Charter, on the one hand, and the fundamental right of freedom of information guaranteed by Article 11 of the Charter, on the other.60It is in the light of those considerations that an examination must be made of the conditions in which the operator of a search engine is required to accede to a request for de-referencing and thus to delete from the list of results displayed following a search on the basis of the data subject’s name the link to a web page on which there are personal data falling within the special categories in Article 8(1) and (5) of Directive 95/46.61It must be stated, to begin with, that the processing by the operator of a search engine of the special categories of data referred to in Article 8(1) of Directive 95/46 is capable in principle of being covered by the exceptions in Article 8(2)(a) and (e), mentioned by the referring court, which provides that the prohibition is not to apply where the data subject has given his or her explicit consent to such processing, except where the laws of the Member State concerned prohibit such consent, or where the processing relates to data which are manifestly made public by the data subject. Those exceptions have now been repeated in Article 9(2)(a) and (e) of Regulation 2016/679. In addition, Article 9(2)(g) of the regulation, which essentially reproduces Article 8(4) of Directive 95/46, allows the processing of those categories of data where it is necessary for reasons of substantial public interest, on the basis of European Union or Member State law which must be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.62With respect to the exception in Article 8(2)(a) of Directive 95/46 and Article 9(2)(a) of Regulation 2016/679, it follows from the definition of ‘consent’ in Article 2(h) of that directive and Article 4(11) of that regulation that the consent must be ‘specific’ and must therefore relate specifically to the processing carried out in connection with the activity of the search engine, and thus to the fact that the processing enables third parties, by means of a search based on the data subject’s name, to obtain a list of results including links leading to web pages containing sensitive data relating to him or her. In practice, it is scarcely conceivable — nor, moreover, does it appear from the documents before the Court — that the operator of a search engine will seek the express consent of data subjects before processing personal data concerning them for the purposes of his referencing activity. In any event, as inter alia the French and Polish Governments and the Commission have observed, the mere fact that a person makes a request for de-referencing means, in principle, at least at the time of making the request, that he or she no longer consents to the processing carried out by the operator of the search engine. In this connection, it should also be recalled that Article 17(1)(b) of the regulation mentions among the grounds justifying the ‘right to be forgotten’ the data subject’s withdrawal of the consent on which the processing is based in accordance with Article 9(2)(a) of the regulation, where there is no other legal ground for the processing.63By contrast, the circumstance, referred to in Article 8(2)(e) of Directive 95/46 and Article 9(2)(e) of Regulation 2016/679, that the data in question are manifestly made public by the data subject is intended to apply, as has been observed by all those who have made submissions on the point, both to the operator of the search engine and to the publisher of the web page concerned.64Consequently, in such a case, despite the presence on the web page referenced of personal data falling within the special categories in Article 8(1) of Directive 95/46 and Article 9(1) of Regulation 2016/679, the processing of those data by the operator of the search engine in connection with its activity, provided that the other conditions of lawfulness are satisfied, in particular those laid down by Article 6 of the directive or Article 5 of the regulation (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 72), is compliant with those provisions.65However, even in that case, the data subject may, pursuant to Article 14(a) of Directive 95/46 or Article 17(1)(c) and Article 21(1) of Regulation 2016/679, have the right to de-referencing of the link in question on grounds relating to his or her particular situation.66In any event, when the operator of a search engine receives a request for de-referencing, he must ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 or Article 9(2)(g) of Regulation 2016/679 and in compliance with the conditions laid down in those provisions, whether the inclusion of the link to the web page in question in the list displayed following a search on the basis of the data subject’s name is necessary for exercising the right of freedom of information of internet users potentially interested in accessing that web page by means of such a search, a right protected by Article 11 of the Charter. While the data subject’s rights protected by Articles 7 and 8 of the Charter override, as a general rule, the freedom of information of internet users, that balance may, however, depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 81).67Furthermore, where the processing relates to the special categories of data mentioned in Article 8(1) and (5) of Directive 95/46 or Article 9(1) and Article 10 of Regulation 2016/679, the interference with the data subject’s fundamental rights to privacy and protection of personal data is, as observed in paragraph 44 above, liable to be particularly serious because of the sensitivity of those data.68Consequently, where the operator of a search engine receives a request for de-referencing relating to a link to a web page on which such sensitive data are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 or Article 9(2)(g) of Regulation 2016/679 and in compliance with the conditions laid down in those provisions, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter.69It follows from all the above considerations that the answer to Question 2 is as follows:The provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is in principle required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de-referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions.Article 8(2)(e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de-referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by the exception in Article 8(2)(e) of the directive, provided that the processing satisfies all the other conditions of lawfulness laid down by the directive, and unless the data subject has the right under Article 14(a) of the directive to object to that processing on compelling legitimate grounds relating to his particular situation.The provisions of Directive 95/46 must be interpreted as meaning that, where the operator of a search engine has received a request for de-referencing relating to a link to a web page on which personal data falling within the special categories referred to in Article 8(1) or (5) of Directive 95/46 are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive and in compliance with the conditions laid down in that provision, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter. Question 3 70As this question is asked only in the event that Question 1 is answered in the negative, there is no need to answer it, given the affirmative answer to Question 1. Question 4 71By its fourth question, the referring court essentially asks whether the provisions of Directive 95/46 must be interpreted as meaning thatfirst, information relating to legal proceedings brought against an individual and, as the case may be, information relating to an ensuing conviction are data relating to ‘offences’ and ‘criminal convictions’ within the meaning of Article 8(5) of Directive 95/46, andsecond, the operator of a search engine is required to accede to a request for de-referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation?72In this respect, it must be stated, as the Advocate General observed in point 100 of his Opinion and as submitted inter alia by the French Government, Ireland, the Italian and Polish Governments and the Commission, that information concerning legal proceedings brought against an individual, such as information relating to the judicial investigation and the trial and, as the case may be, the ensuing conviction, is data relating to ‘offences’ and ‘criminal convictions’ within the meaning of the first subparagraph of Article 8(5) of Directive 95/46 and Article 10 of Regulation 2016/679, regardless of whether or not, in the course of those legal proceedings, the offence for which the individual was prosecuted was shown to have been committed.73Consequently, by including in the list of results displayed following a search carried out on the basis of the data subject’s name links to web pages on which such data are published, the operator of a search engine carries out a processing of those data which, in accordance with the first subparagraph of Article 8(5) of Directive 95/46 and Article 10 of Regulation 2016/679, is subject to special restrictions. As the Commission observed, such processing may, by virtue of those provisions and subject to compliance with the other conditions of lawfulness laid down by that directive, be lawful in particular if appropriate and specific guarantees are provided for by national law, which may be the case where the information in question has been disclosed to the public by the public authorities in compliance with the applicable national law.74As regards those other conditions of lawfulness, it must be recalled that it follows from the requirements laid down in Article 6(1)(c) to (e) of Directive 95/46, now repeated in Article 5(1)(c) to (e) of Regulation 2016/679, that even initially lawful processing of accurate data may over time become incompatible with the directive or the regulation where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 93).75However, as stated in paragraph 66 above, even if the processing of data referred to in Article 8(5) of Directive 95/46 and Article 10 of Regulation 2016/679 does not correspond to the restrictions laid down by those provisions or the other conditions of lawfulness, such as those laid down in Article 6(1)(c) to (e) of the directive and Article 5(1)(c) to (e) of the regulation, the operator of a search engine must still ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive or Article 9(2)(g) of the regulation and in compliance with the conditions laid down in those provisions, whether the inclusion of the link to the web page in question in the list displayed following a search on the basis of the data subject’s name is necessary for exercising the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter.76In this respect, it must be recalled that it follows from the case-law of the European Court of Human Rights that applications brought by individuals for the prohibition under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, of the making available on the internet by the various media of old reports of criminal proceedings that had been brought against them call for an examination of the fair balance to be struck between their right to respect for their private life and inter alia the public’s freedom of information. In seeking that fair balance, account must be taken of the essential role played by the press in a democratic society, which includes reporting and commenting on legal proceedings. Moreover, to the media’s function of communicating such information and ideas there must be added the public’s right to receive them. The European Court of Human Rights acknowledged in this context that the public had an interest not only in being informed about a topical event, but also in being able to conduct research into past events, with the public’s interest as regards criminal proceedings varying in degree, however, and possibly evolving over time according in particular to the circumstances of the case (ECtHR, 28 June 2018, M.L. and W.W. v. Germany, CE:ECHR:2018:0628JUD006079810, §§ 89 and 100 to 102).77It is thus for the operator of a search engine to assess, in the context of a request for de-referencing relating to links to web pages on which information is published relating to criminal proceedings brought against the data subject, concerning an earlier stage of the proceedings and no longer corresponding to the current situation, whether, in the light of all the circumstances of the case, such as, in particular, the nature and seriousness of the offence in question, the progress and the outcome of the proceedings, the time elapsed, the part played by the data subject in public life and his past conduct, the public’s interest at the time of the request, the content and form of the publication and the consequences of publication for the data subject, he or she has a right to the information in question no longer, in the present state of things, being linked with his or her name by a list of results displayed following a search carried out on the basis of that name.78It must, however, be added that, even if the operator of a search engine were to find that that is not the case because the inclusion of the link in question is strictly necessary for reconciling the data subject’s rights to privacy and protection of personal data with the freedom of information of potentially interested internet users, the operator is in any event required, at the latest on the occasion of the request for de-referencing, to adjust the list of results in such a way that the overall picture it gives the internet user reflects the current legal position, which means in particular that links to web pages containing information on that point must appear in first place on the list.79Having regard to the above considerations, the answer to Question 4 is that the provisions of Directive 95/46 must be interpreted as meaning thatsecond, the operator of a search engine is required to accede to a request for de-referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation, in so far as it is established in the verification of the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 that, in the light of all the circumstances of the case, the data subject’s fundamental rights guaranteed by Articles 7 and 8 of the Charter override the rights of potentially interested internet users protected by Article 11 of the Charter. Costs 80Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. The provisions of Article 8(1) and (5) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out in connection with the activity of the search engine, on the occasion of a verification performed by that operator, under the supervision of the competent national authorities, following a request by the data subject. 2. The provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is in principle required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de-referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions. Article 8(2)(e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de-referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by the exception in Article 8(2)(e) of the directive, provided that the processing satisfies all the other conditions of lawfulness laid down by the directive, and unless the data subject has the right under Article 14(a) of the directive to object to that processing on compelling legitimate grounds relating to his particular situation. The provisions of Directive 95/46 must be interpreted as meaning that, where the operator of a search engine has received a request for de-referencing relating to a link to a web page on which personal data falling within the special categories referred to in Article 8(1) or (5) of Directive 95/46 are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive and in compliance with the conditions laid down in that provision, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter. 3. The provisions of Directive 95/46 must be interpreted as meaning that first, information relating to legal proceedings brought against an individual and, as the case may be, information relating to an ensuing conviction are data relating to ‘offences’ and ‘criminal convictions’ within the meaning of Article 8(5) of Directive 95/46, and second, the operator of a search engine is required to accede to a request for de-referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation, in so far as it is established in the verification of the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 that, in the light of all the circumstances of the case, the data subject’s fundamental rights guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union override the rights of potentially interested internet users protected by Article 11 of the Charter. [Signatures]( *1 ) Language of the case: French. | 7cc8d-03f2416-489f | EN |
The operator of a search engine is not required to carry out a de-referencing on all versions of its search engine | 24 September 2019 ( *1 )(Reference for a preliminary ruling — Personal data — Protection of individuals with regard to the processing of such data — Directive 95/46/EC — Regulation (EU) 2016/679 — Internet search engines — Processing of data on web pages — Territorial scope of the right to de-referencing)In Case C‑507/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 19 July 2017, received at the Court on 21 August 2017, in the proceedings Google LLC, successor in law to Google Inc.,v Commission nationale de l’informatique et des libertés (CNIL), in the presence of: Wikimedia Foundation Inc., Fondation pour la liberté de la presse, Microsoft Corp., Reporters Committee for Freedom of the Press and Others, Article 19 and Others, Internet Freedom Foundation and Others, Défenseur des droits, THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Arabadjiev, E. Regan, T. von Danwitz, C. Toader and F. Biltgen, Presidents of Chambers, M. Ilešič (Rapporteur), L. Bay Larsen, M. Safjan, D. Šváby, C.G. Fernlund, C. Vajda and S. Rodin, judges,Advocate General: M. Szpunar,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 11 September 2018,after considering the observations submitted on behalf of:–Google LLC, by P. Spinosi, Y. Pelosi and W. Maxwell, avocats,the Commission nationale de l’informatique et des libertés (CNIL), by I. Falque‑Pierrotin, J. Lessi and G. Le Grand, acting as Agents,Wikimedia Foundation Inc., by C. Rameix‑Seguin, avocate,the Fondation pour la liberté de la presse, by T. Haas, avocat,Microsoft Corp., by E. Piwnica, avocat,the Reporters Committee for Freedom of the Press and Others, by F. Louis, avocat, and by H.-G. Kamann, C. Schwedler and M. Braun, Rechtsanwälte,Article 19 and Others, by G. Tapie, avocat, G. Facenna QC, and E. Metcalfe, Barrister,Internet Freedom Foundation and Others, by T. Haas, avocat,the Défenseur des droits, by J. Toubon, acting as Agent,the French Government, by D. Colas, R. Coesme, E. de Moustier and S. Ghiandoni, acting as Agents,Ireland, by M. Browne, G. Hodge, J. Quaney and A. Joyce, acting as Agents, and by M. Gray, Barrister-at-Law,the Greek Government, by E.-M. Mamouna, G. Papadaki, E. Zisi and S. Papaioannou, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and by R. Guizzi, avvocato dello Stato,the Austrian Government, by G. Eberhard and G. Kunnert, acting as Agents,the Polish Government, by B. Majczyna, M. Pawlicka and J. Sawicka, acting as Agents,the European Commission, by A. Buchet, H. Kranenborg and D. Nardi, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 10 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).2The request has been made in proceedings between Google LLC, successor in law to Google Inc., and the Commission nationale de l’informatique et des libertés (French Data Protection Authority, France) (‘the CNIL’) concerning a penalty of EUR 100000 imposed by the CNIL on Google because of that company’s refusal, when granting a de-referencing request, to apply it to all its search engine’s domain name extensions. Legal context European Union law Directive 95/46 3According to Article 1(1) thereof, the purpose of Directive 95/46 is to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data, and to remove obstacles to the free movement of such data.4Recitals 2, 7, 10, 18, 20 and 37 of Directive 95/46 state:‘(2)Whereas data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to … the well-being of individuals;…(7)Whereas the difference in levels of protection of the rights and freedoms of individuals, notably the right to privacy, with regard to the processing of personal data afforded in the Member States may prevent the transmission of such data from the territory of one Member State to that of another Member State; whereas this difference may therefore constitute an obstacle to the pursuit of a number of economic activities at Community level …(10)Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950,] and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community;(18)Whereas, in order to ensure that individuals are not deprived of the protection to which they are entitled under this Directive, any processing of personal data in the Community must be carried out in accordance with the law of one of the Member States; …(20)Whereas the fact that the processing of data is carried out by a person established in a third country must not stand in the way of the protection of individuals provided for in this Directive; whereas in these cases, the processing should be governed by the law of the Member State in which the means used are located, and there should be guarantees to ensure that the rights and obligations provided for in this Directive are respected in practice;(37)Whereas the processing of personal data for purposes of journalism or for purposes of literary [or] artistic expression, in particular in the audiovisual field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas Member States should therefore lay down exemptions and derogations necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing …’5Article 2 of that directive provides:‘For the purposes of this Directive:(a)“personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); …(b)“processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;(d)“controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; ……’6Article 4 of that directive, entitled ‘National law applicable’, provides:‘1. Each Member State shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where:the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State; when the same controller is established on the territory of several Member States, he must take the necessary measures to ensure that each of these establishments complies with the obligations laid down by the national law applicable;the controller is not established on the Member State’s territory, but in a place where its national law applies by virtue of international public law;(c)the controller is not established on Community territory and, for purposes of processing personal data makes use of equipment, automated or otherwise, situated on the territory of the said Member State, unless such equipment is used only for purposes of transit through the territory of the Community.2. In the circumstances referred to in paragraph 1(c), the controller must designate a representative established in the territory of that Member State, without prejudice to legal actions which could be initiated against the controller himself.’7Article 9 of Directive 95/46, entitled ‘Processing of personal data and freedom of expression’, states:‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’8Article 12 of that directive, entitled ‘Right of access’, provides:‘Member States shall guarantee every data subject the right to obtain from the controller:as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data;9Article 14 of that directive, entitled ‘The data subject’s right to object’, provides:‘Member States shall grant the data subject the right:at least in the cases referred to in Article 7(e) and (f), to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data;10Article 24 of Directive 95/46, entitled ‘Sanctions’, provides:‘The Member States shall adopt suitable measures to ensure the full implementation of the provisions of this Directive and shall in particular lay down the sanctions to be imposed in case of infringement of the provisions adopted pursuant to this Directive.’11Article 28 of that directive, entitled ‘Supervisory authority’, is worded as follows:‘1. Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.3. Each authority shall in particular be endowed with:investigative powers, such as powers of access to data forming the subject matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties,effective powers of intervention, such as, for example, that of … ordering the blocking, erasure or destruction of data, [or] of imposing a temporary or definitive ban on processing …Decisions by the supervisory authority which give rise to complaints may be appealed against through the courts.4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The person concerned shall be informed of the outcome of the claim.6. Each supervisory authority is competent, whatever the national law applicable to the processing in question, to exercise, on the territory of its own Member State, the powers conferred on it in accordance with paragraph 3. Each authority may be requested to exercise its powers by an authority of another Member State.The supervisory authorities shall cooperate with one another to the extent necessary for the performance of their duties, in particular by exchanging all useful information. Regulation (EU) 2016/679 12Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 (General Data Protection Regulation) (OJ 2016 L 119, p. 1, and Corrigendum OJ 2018 L 127, p. 2), which is based on Article 16 TFEU, is applicable, pursuant to Article 99(2) thereof, from 25 May 2018. Article 94(1) of that regulation provides that Directive 95/46 is repealed with effect from that date.13Recitals 1, 4, 9 to 11, 13, 22 to 25 and 65 of that regulation state:‘(1)The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (“the Charter”) and Article 16(1) [TFEU] provide that everyone has the right to the protection of personal data concerning him or her.(4)The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, … the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information [and] freedom to conduct a business …(9)… Directive 95/46 … has not prevented fragmentation in the implementation of data protection across the Union … Differences in the level of protection … in the Member States may prevent the free flow of personal data throughout the Union. Those differences may therefore constitute an obstacle to the pursuit of economic activities at the level of the Union …In order to ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States. …(11)Effective protection of personal data throughout the Union requires the strengthening and setting out in detail of the rights of data subjects and the obligations of those who process and determine the processing of personal data, as well as equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data and equivalent sanctions for infringements in the Member States.(13)In order to ensure a consistent level of protection for natural persons throughout the Union and to prevent divergences hampering the free movement of personal data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, … and to provide natural persons in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective cooperation between the supervisory authorities of different Member States. The proper functioning of the internal market requires that the free movement of personal data within the Union is not restricted or prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data. …(22)Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union. …(23)In order to ensure that natural persons are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union should be subject to this Regulation where the processing activities are related to offering goods or services to such data subjects irrespective of whether connected to a payment. In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. …(24)The processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union should also be subject to this Regulation when it is related to the monitoring of the behaviour of such data subjects in so far as their behaviour takes place within the Union. In order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.(25)Where Member State law applies by virtue of public international law, this Regulation should also apply to a controller not established in the Union, such as in a Member State’s diplomatic mission or consular post.(65)A data subject should have … a “right to be forgotten” where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject … However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information …’14Article 3 of Regulation 2016/679, entitled ‘Territorial scope’, is worded as follows:‘1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; orthe monitoring of their behaviour as far as their behaviour takes place within the Union.3. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.’15Article 4(23) of that regulation defines the concept of ‘cross-border processing’ as follows:‘(a)processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; orprocessing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State’.16Article 17 of that regulation, entitled ‘Right to erasure (“right to be forgotten”)’, is worded as follows:‘1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);the personal data have been unlawfully processed;(e)the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;(f)the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:for exercising the right of freedom of expression and information;17Article 21 of that regulation, entitled ‘Right to object’, provides, in paragraph 1 thereof:‘The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.’18Article 55 of Regulation 2016/679, entitled ‘Competence’, which forms part of Chapter VI of that regulation, itself entitled ‘Independent supervisory authorities’, provides, in paragraph 1 thereof:‘Each supervisory authority shall be competent for the performance of the tasks assigned to and the exercise of the powers conferred on it in accordance with this Regulation on the territory of its own Member State.’19Article 56 of that regulation, entitled ‘Competence of the lead supervisory authority’, states:‘1. Without prejudice to Article 55, the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor in accordance with the procedure provided in Article 60.2. By derogation from paragraph 1, each supervisory authority shall be competent to handle a complaint lodged with it or a possible infringement of this Regulation, if the subject matter relates only to an establishment in its Member State or substantially affects data subjects only in its Member State.3. In the cases referred to in paragraph 2 of this Article, the supervisory authority shall inform the lead supervisory authority without delay on that matter. Within a period of three weeks after being informed the lead supervisory authority shall decide whether or not it will handle the case in accordance with the procedure provided in Article 60, taking into account whether or not there is an establishment of the controller or processor in the Member State of which the supervisory authority informed it.4. Where the lead supervisory authority decides to handle the case, the procedure provided in Article 60 shall apply. The supervisory authority which informed the lead supervisory authority may submit to the lead supervisory authority a draft for a decision. The lead supervisory authority shall take utmost account of that draft when preparing the draft decision referred to in Article 60(3).5. Where the lead supervisory authority decides not to handle the case, the supervisory authority which informed the lead supervisory authority shall handle it according to Articles 61 and 62.6. The lead supervisory authority shall be the sole interlocutor of the controller or processor for the cross-border processing carried out by that controller or processor.’20Article 58 of that regulation, entitled ‘Powers’, provides, in paragraph 2 thereof:‘Each supervisory authority shall have all of the following corrective powers:(g)to order the … erasure of personal data … pursuant to … [Article] … 17 …;(i)to impose an administrative fine … in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case.’21Under Chapter VII of Regulation 2016/679, entitled ‘Cooperation and consistency’, Section I, entitled ‘Cooperation’, includes Articles 60 to 62 of that regulation. Article 60, entitled ‘Cooperation between the lead supervisory authority and the other supervisory authorities concerned’, provides:‘1. The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other.2. The lead supervisory authority may request at any time other supervisory authorities concerned to provide mutual assistance pursuant to Article 61 and may conduct joint operations pursuant to Article 62, in particular for carrying out investigations or for monitoring the implementation of a measure concerning a controller or processor established in another Member State.3. The lead supervisory authority shall, without delay, communicate the relevant information on the matter to the other supervisory authorities concerned. It shall without delay submit a draft decision to the other supervisory authorities concerned for their opinion and take due account of their views.4. Where any of the other supervisory authorities concerned within a period of four weeks after having been consulted in accordance with paragraph 3 of this Article, expresses a relevant and reasoned objection to the draft decision, the lead supervisory authority shall, if it does not follow the relevant and reasoned objection or is of the opinion that the objection is not relevant or reasoned, submit the matter to the consistency mechanism referred to in Article 63.5. Where the lead supervisory authority intends to follow the relevant and reasoned objection made, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion. That revised draft decision shall be subject to the procedure referred to in paragraph 4 within a period of two weeks.6. Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.7. The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.8. By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof.9. Where the lead supervisory authority and the supervisory authorities concerned agree to dismiss or reject parts of a complaint and to act on other parts of that complaint, a separate decision shall be adopted for each of those parts of the matter. …10. After being notified of the decision of the lead supervisory authority pursuant to paragraphs 7 and 9, the controller or processor shall take the necessary measures to ensure compliance with the decision as regards processing activities in the context of all its establishments in the Union. The controller or processor shall notify the measures taken for complying with the decision to the lead supervisory authority, which shall inform the other supervisory authorities concerned.11. Where, in exceptional circumstances, a supervisory authority concerned has reasons to consider that there is an urgent need to act in order to protect the interests of data subjects, the urgency procedure referred to in Article 66 shall apply.22Article 61 of that regulation, entitled ‘Mutual assistance’, states, in paragraph 1 thereof:‘Supervisory authorities shall provide each other with relevant information and mutual assistance in order to implement and apply this Regulation in a consistent manner, and shall put in place measures for effective cooperation with one another. Mutual assistance shall cover, in particular, information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations.’23Article 62 of that regulation, entitled ‘Joint operations of supervisory authorities’, provides:‘1. The supervisory authorities shall, where appropriate, conduct joint operations including joint investigations and joint enforcement measures in which members or staff of the supervisory authorities of other Member States are involved.2. Where the controller or processor has establishments in several Member States or where a significant number of data subjects in more than one Member State are likely to be substantially affected by processing operations, a supervisory authority of each of those Member States shall have the right to participate in joint operations. …’24Section 2, entitled ‘Consistency’, of Chapter VII of Regulation 2016/679 includes Articles 63 to 67 of that regulation. Article 63, entitled ‘Consistency mechanism’, is worded as follows:‘In order to contribute to the consistent application of this Regulation throughout the Union, the supervisory authorities shall cooperate with each other and, where relevant, with the Commission, through the consistency mechanism as set out in this Section.’25Article 65 of that regulation, entitled ‘Dispute resolution by the Board’, provides, in paragraph 1 thereof:‘In order to ensure the correct and consistent application of this Regulation in individual cases, the Board shall adopt a binding decision in the following cases:where, in a case referred to in Article 60(4), a supervisory authority concerned has raised a relevant and reasoned objection to a draft decision of the lead supervisory authority and the lead supervisory authority has not followed the objection or has rejected such an objection as being not relevant or reasoned. The binding decision shall concern all the matters which are the subject of the relevant and reasoned objection, in particular whether there is an infringement of this Regulation;where there are conflicting views on which of the supervisory authorities concerned is competent for the main establishment;26Article 66 of that regulation, entitled ‘Urgency procedure’, provides, in paragraph 1 thereof:‘In exceptional circumstances, where a supervisory authority concerned considers that there is an urgent need to act in order to protect the rights and freedoms of data subjects, it may, by way of derogation from the consistency mechanism referred to in Articles 63, 64 and 65 or the procedure referred to in Article 60, immediately adopt provisional measures intended to produce legal effects on its own territory with a specified period of validity which shall not exceed three months. The supervisory authority shall, without delay, communicate those measures and the reasons for adopting them to the other supervisory authorities concerned, to the Board and to the Commission.’27Article 85 of Regulation 2016/679, entitled ‘Processing and freedom of expression and information’, states:‘1. Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.2. For processing carried out for journalistic purposes or the purpose of academic, artistic or literary expression, Member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information. French law 28Directive 95/46 is implemented in French law by loi no 78-17, du 6 janvier 1978, relative à l’informatique, aux fichiers et aux libertés (Law No 78-17 of 6 January 1978 on information technology, data files and civil liberties), in the version applicable to the events in the main proceedings (‘the Law of 6 January 1978’).29Article 45 of that law specifies that where the controller fails to fulfil the obligations laid down in that law, the President of the CNIL may serve notice on him to bring the established infringement to an end within a period which the President is to determine. If the controller does not comply with the formal notice served on him, the Select Panel of the CNIL may, after hearing both parties, impose, inter alia, a financial penalty. The dispute in the main proceedings and the questions referred for a preliminary ruling 30By decision of 21 May 2015, the President of the CNIL served formal notice on Google that, when granting a request from a natural person for links to web pages to be removed from the list of results displayed following a search conducted on the basis of that person’s name, it must apply that removal to all its search engine’s domain name extensions.31Google refused to comply with that formal notice, confining itself to removing the links in question from only the results displayed following searches conducted from the domain names corresponding to the versions of its search engine in the Member States.32The CNIL also regarded as insufficient Google’s further ‘geo-blocking’ proposal, made after expiry of the time limit laid down in the formal notice, whereby internet users would be prevented from accessing the results at issue from an IP (Internet Protocol) address deemed to be located in the State of residence of a data subject after conducting a search on the basis of that data subject’s name, no matter which version of the search engine they used.33By an adjudication of 10 March 2016, the CNIL, after finding that Google had failed to comply with that formal notice within the prescribed period, imposed a penalty on that company of EUR 100000, which was made public.34By application lodged with the Conseil d’État (Council of State, France), Google seeks annulment of that adjudication.35The Conseil d’État notes that the processing of personal data carried out by the search engine operated by Google falls within the scope of the Law of 6 January 1978, in view of the activities of promoting and selling advertising space carried on in France by its subsidiary Google France.36The Conseil d’État also notes that the search engine operated by Google is broken down into different domain names by geographical extensions, in order to tailor the results displayed to the specificities, particularly the linguistic specificities, of the various States in which that company carries on its activities. Where the search is conducted from ‘google.com’, Google, in principle, automatically redirects that search to the domain name corresponding to the State from which that search is deemed to have been made, as identified by the internet user’s IP address. However, regardless of his or her location, the internet user remains free to conduct his or her searches using the search engine’s other domain names. Moreover, although the results may differ depending on the domain name from which the search is conducted on the search engine, it is common ground that the links displayed in response to a search derive from common databases and common indexing.37The Conseil d’État considers that, having regard, first, to the fact that Google’s search engine domain names can all be accessed from French territory and, secondly, to the existence of gateways between those various domain names, as illustrated in particular by the automatic redirection mentioned above, as well as by the presence of cookies on extensions of that search engine other than the one on which they were initially deposited, that search engine, which, moreover, has been the subject of only one declaration to the CNIL, must be regarded as carrying out a single act of personal data processing for the purposes of applying the Law of 6 January 1978. As a result, the processing of personal data by the search engine operated by Google is carried out within the framework of one of its installations, Google France, established on French territory, and is therefore subject to the Law of 6 January 1978.38Before the Conseil d’État, Google maintains that the penalty at issue is based on a misinterpretation of the provisions of the Law of 6 January 1978, which transpose Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, on the basis of which the Court, in its judgment of 13 May 2014, Google Spain and Google (C‑131/12, EU:C:2014:317), recognised a ‘right to de-referencing’. Google argues that this right does not necessarily require that the links at issue are to be removed, without geographical limitation, from all its search engine’s domain names. In addition, by adopting such an interpretation, the CNIL disregarded the principles of courtesy and non-interference recognised by public international law and disproportionately infringed the freedoms of expression, information, communication and the press guaranteed, in particular, by Article 11 of the Charter.39Having noted that this line of argument raises several serious difficulties regarding the interpretation of Directive 95/46, the Conseil d’État has decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:Must the “right to de-referencing”, as established by the [Court] in its judgment of 13 May 2014, [Google Spain and Google (C‑131/12, EU:C:2014:317),] on the basis of the provisions of [Article 12(b) and subparagraph (a) of the first paragraph of Article 14] of Directive [95/46], be interpreted as meaning that a search engine operator is required, when granting a request for de-referencing, to deploy the de-referencing to all of the domain names used by its search engine so that the links at issue no longer appear, irrespective of the place from where the search initiated on the basis of the requester’s name is conducted, and even if it is conducted from a place outside the territorial scope of Directive [95/46]?(2)In the event that Question 1 is answered in the negative, must the “right to de-referencing”, as established by the [Court] in the judgment cited above, be interpreted as meaning that a search engine operator is required, when granting a request for de-referencing, only to remove the links at issue from the results displayed following a search conducted on the basis of the requester’s name on the domain name corresponding to the State in which the request is deemed to have been made or, more generally, on the domain names distinguished by the national extensions used by that search engine for all of the Member States …?3.Moreover, in addition to the obligation mentioned in Question 2, must the “right to de-referencing” as established by the [Court] in its judgment cited above, be interpreted as meaning that a search engine operator is required, when granting a request for de-referencing, to remove the results at issue, by using the “geo-blocking” technique, from searches conducted on the basis of the requester’s name from an IP address deemed to be located in the State of residence of the person benefiting from the “right to de-referencing”, or even, more generally, from an IP address deemed to be located in one of the Member States subject to Directive [95/46], regardless of the domain name used by the internet user conducting the search?’ Consideration of the questions referred 40The case in the main proceedings is the result of a dispute between Google and the CNIL as to how a search engine operator, where it establishes that a data subject is entitled to have one or more links to web pages containing personal data concerning him or her removed from the list of results which is displayed following a search conducted on the basis of his or her name, is to give effect to that right to de-referencing. Although Directive 95/46 was applicable on the date the request for a preliminary ruling was made, it was repealed with effect from 25 May 2018, from which date Regulation 2016/679 is applicable.41The Court will examine the questions referred in the light of both that directive and that regulation in order to ensure that its answers will be of use to the referring court in any event.42During the proceedings before the Court, Google explained that, following the bringing of the request for a preliminary ruling, it has implemented a new layout for the national versions of its search engine, in which the domain name entered by the internet user no longer determines the national version of the search engine accessed by that user. Thus, the internet user is now automatically directed to the national version of Google’s search engine that corresponds to the place from where he or she is presumed to be conducting the search, and the results of that search are displayed according to that place, which is determined by Google using a geo-location process.43In those circumstances, the questions referred, which must be dealt with together, should be understood as seeking to ascertain, in essence, whether Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 and Article 17(1) of Regulation 2016/679 are to be interpreted as meaning that, where a search engine operator grants a request for de-referencing pursuant to those provisions, that operator is required to carry out that de-referencing on all versions of its search engine, or whether, on the contrary, it is required to do so only on the versions of that search engine corresponding to all the Member States, or even only on the version corresponding to the Member State in which the request for de-referencing was made, using, where appropriate, the technique known as ‘geo-blocking’ in order to ensure that an internet user cannot, regardless of the national version of the search engine used, gain access to the links concerned by the de-referencing in the context of a search conducted from an IP address deemed to be located in the Member State of residence of the person benefiting from the right to de-referencing or, more broadly, in any Member State.44As a preliminary point, it should be borne in mind that the Court has held that Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 88).45The Court has also stated that, when appraising the conditions for the application of those same provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him or her personally should, at that point in time, no longer be linked to his or her name by a list of results displayed following a search made on the basis of his or her name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his or her fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his or her fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 99).46In the context of Regulation 2016/679, that right of a data subject to de-referencing is now based on Article 17 of that regulation, which specifically governs the ‘right to erasure’, also referred to, in the heading of that article, as the ‘right to be forgotten’.47Pursuant to Article 17(1) of Regulation 2016/679, a data subject has the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller has the obligation to erase personal data without undue delay where one of the grounds listed in that provision applies. Article 17(3) of that regulation specifies that Article 17(1) does not apply to the extent that processing is necessary for one of the reasons listed in the former provision. Those reasons include, in particular, under Article 17(3)(a) of that regulation, the exercise of the right of, inter alia, freedom of information of internet users.48It follows from Article 4(1)(a) of Directive 95/46 and Article 3(1) of Regulation 2016/679 that both that directive and that regulation permit data subjects to assert their right to de-referencing against a search engine operator who has one or more establishments in the territory of the Union in the context of activities involving the processing of personal data concerning those data subjects, regardless of whether that processing takes place in the Union or not.49In that regard, the Court has held that the processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that search engine and which orientates its activity towards the inhabitants of that Member State (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 60).50In such circumstances, the activities of the operator of the search engine and those of its establishment situated in the Union are inextricably linked since the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that search engine is, at the same time, the means enabling those activities to be performed, the display of the list of results being accompanied, on the same page, by the display of advertising linked to the search terms (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraphs 56 and 57).51That being so, the fact that the search engine is operated by an undertaking that has its seat in a third State cannot result in the processing of personal data carried out for the purposes of the operation of that search engine in the context of the advertising and commercial activity of an establishment of the controller on the territory of a Member State escaping the obligations and guarantees laid down by Directive 95/46 and Regulation 2016/679 (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 58).52In the present case, it is apparent from the information provided in the order for reference, first, that Google’s establishment in French territory carries on, inter alia, commercial and advertising activities, which are inextricably linked to the processing of personal data carried out for the purposes of operating the search engine concerned, and, second, that that search engine must, in view of, inter alia, the existence of gateways between its various national versions, be regarded as carrying out a single act of personal data processing. The referring court considers that, in those circumstances, that act of processing is carried out within the framework of Google’s establishment in French territory. It thus appears that such a situation falls within the territorial scope of Directive 95/46 and Regulation 2016/679.53By its questions, the referring court seeks to determine the territorial scope which must be conferred on a de-referencing in such a situation.54In that regard, it is apparent from recital 10 of Directive 95/46 and recitals 10, 11 and 13 of Regulation 2016/679, which was adopted on the basis of Article 16 TFEU, that the objective of that directive and that regulation is to guarantee a high level of protection of personal data throughout the European Union.55It is true that a de-referencing carried out on all the versions of a search engine would meet that objective in full.56The internet is a global network without borders and search engines render the information and links contained in a list of results displayed following a search conducted on the basis of an individual’s name ubiquitous (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 80, and of 17 October 2017, Bolagsupplysningen and Ilsjan, C‑194/16, EU:C:2017:766, paragraph 48).57In a globalised world, internet users’ access — including those outside the Union — to the referencing of a link referring to information regarding a person whose centre of interests is situated in the Union is thus likely to have immediate and substantial effects on that person within the Union itself.58Such considerations are such as to justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine.59That being said, it should be emphasised that numerous third States do not recognise the right to de-referencing or have a different approach to that right.60Moreover, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality (see, to that effect, judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 48, and Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, point 136). Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.61While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned (see, to that effect, today’s judgment, GC and Others (De-referencing of sensitive data), C‑136/17, paragraph 59), it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.62In particular, it is in no way apparent from the wording of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 or Article 17 of Regulation 2016/679 that the EU legislature would, for the purposes of ensuring that the objective referred to in paragraph 54 above is met, have chosen to confer a scope on the rights enshrined in those provisions which would go beyond the territory of the Member States and that it would have intended to impose on an operator which, like Google, falls within the scope of that directive or that regulation a de-referencing obligation which also concerns the national versions of its search engine that do not correspond to the Member States.63Moreover, although Regulation 2016/679 provides the supervisory authorities of the Member States, in Articles 56 and 60 to 66 thereof, with the instruments and mechanisms enabling them, where appropriate, to cooperate in order to come to a joint decision based on weighing a data subject’s right to privacy and the protection of personal data concerning him or her against the interest of the public in various Member States in having access to information, it must be found that EU law does not currently provide for such cooperation instruments and mechanisms as regards the scope of a de-referencing outside the Union.64It follows that, currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject, as the case may be, following an injunction from a supervisory or judicial authority of a Member State, to carry out such a de-referencing on all the versions of its search engine.65Having regard to all of the foregoing, a search engine operator cannot be required, under Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 and Article 17(1) of Regulation 2016/679, to carry out a de-referencing on all the versions of its search engine.66Regarding the question whether such a de-referencing is to be carried out on the versions of the search engine corresponding to the Member States or only on the version of that search engine corresponding to the Member State of residence of the person benefiting from the de-referencing, it follows from, inter alia, the fact that the EU legislature has now chosen to lay down the rules concerning data protection by way of a regulation, which is directly applicable in all the Member States, which has been done, as is emphasised by recital 10 of Regulation 2016/679, in order to ensure a consistent and high level of protection throughout the European Union and to remove the obstacles to flows of personal data within the Union, that the de-referencing in question is, in principle, supposed to be carried out in respect of all the Member States.67However, it should be pointed out that the interest of the public in accessing information may, even within the Union, vary from one Member State to another, meaning that the result of weighing up that interest, on the one hand, and a data subject’s rights to privacy and the protection of personal data, on the other, is not necessarily the same for all the Member States, especially since, under Article 9 of Directive 95/46 and Article 85 of Regulation 2016/679, it is for the Member States, in particular as regards processing undertaken solely for journalistic purposes or for the purpose of artistic or literary expression, to provide for the exemptions and derogations necessary to reconcile those rights with, inter alia, the freedom of information.68It follows from, inter alia, Articles 56 and 60 of Regulation 2016/679 that, for cross-border processing as defined in Article 4(23) of that regulation, and subject to Article 56(2) thereof, the various national supervisory authorities concerned must cooperate, in accordance with the procedure laid down in those provisions, in order to reach a consensus and a single decision which is binding on all those authorities and with which the controller must ensure compliance as regards processing activities in the context of all its establishments in the Union. Moreover, Article 61(1) of Regulation 2016/679 obliges the supervisory authorities, in particular, to provide each other with relevant information and mutual assistance in order to implement and to apply that regulation in a consistent manner throughout the Union, and Article 63 of that regulation specifies that it is for this purpose that provision has been made for the consistency mechanism set out in Articles 64 and 65 thereof. Lastly, the urgency procedure provided for in Article 66 of Regulation 2016/679 permits the immediate adoption, in exceptional circumstances, where a supervisory authority concerned considers that there is an urgent need to act in order to protect the rights and freedoms of data subjects, of provisional measures intended to produce legal effects on its own territory with a specified period of validity which is not to exceed three months.69That regulatory framework thus provides the national supervisory authorities with the instruments and mechanisms necessary to reconcile a data subject’s rights to privacy and the protection of personal data with the interest of the whole public throughout the Member States in accessing the information in question and, accordingly, to be able to adopt, where appropriate, a de-referencing decision which covers all searches conducted from the territory of the Union on the basis of that data subject’s name.70In addition, it is for the search engine operator to take, if necessary, sufficiently effective measures to ensure the effective protection of the data subject’s fundamental rights. Those measures must themselves meet all the legal requirements and have the effect of preventing or, at the very least, seriously discouraging internet users in the Member States from gaining access to the links in question using a search conducted on the basis of that data subject’s name (see, by analogy, judgments of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 62, and of 15 September 2016, McFadden, C‑484/14, EU:C:2016:689, paragraph 96).71It is for the referring court to ascertain whether, also having regard to the recent changes made to its search engine as set out in paragraph 42 above, the measures adopted or proposed by Google meet those requirements.72Lastly, it should be emphasised that, while, as noted in paragraph 64 above, EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to weigh up, in the light of national standards of protection of fundamental rights (see, to that effect, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29, and of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60), a data subject’s right to privacy and the protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine.73In the light of all of the foregoing, the answer to the questions referred is that, on a proper construction of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 and Article 17(1) of Regulation 2016/679, where a search engine operator grants a request for de-referencing pursuant to those provisions, that operator is not required to carry out that de-referencing on all versions of its search engine, but on the versions of that search engine corresponding to all the Member States, using, where necessary, measures which, while meeting the legal requirements, effectively prevent or, at the very least, seriously discourage an internet user conducting a search from one of the Member States on the basis of a data subject’s name from gaining access, via the list of results displayed following that search, to the links which are the subject of that request. Costs 74Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: On a proper construction of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and of Article 17(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 (General Data Protection Regulation), where a search engine operator grants a request for de-referencing pursuant to those provisions, that operator is not required to carry out that de-referencing on all versions of its search engine, but on the versions of that search engine corresponding to all the Member States, using, where necessary, measures which, while meeting the legal requirements, effectively prevent or, at the very least, seriously discourage an internet user conducting a search from one of the Member States on the basis of a data subject’s name from gaining access, via the list of results displayed following that search, to the links which are the subject of that request. [Signatures]( *1 ) Language of the case: French. | 2d9e9-c2c7f7f-4cf3 | EN |
Copyright protection may not be granted to designs on the sole ground that, over and above their practical purpose, they produce a specific aesthetic effect | 12 September 2019 ( *1 )(Reference for a preliminary ruling — Intellectual and industrial property — Copyright and related rights — Directive 2001/29/EC — Article 2(a) — Concept of ‘work’– Protection of works by copyright — Conditions — Connection with the protection of designs — Directive 98/71/EC — Regulation (EC) No 6/2002 — Clothing designs)In Case C‑683/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal de Justiça (Supreme Court, Portugal), made by decision of 21 November 2017, received at the Court on 6 December 2017, in the proceedings Cofemel — Sociedade de Vestuário SA v G-Star Raw CV, THE COURT (Third Chamber),composed of A. Prechal, President of the Chamber, F. Biltgen, J. Malenovský (Rapporteur), C.G. Fernlund and L.S. Rossi, Judges,Advocate General: M. Szpunar,Registrar: L. Hewlett, Principal Administrator,having regard to the written procedure and further to the hearing on 12 December 2018,after considering the observations submitted on behalf of:–Cofemel — Sociedade de Vestuário SA, by I. Bairrão and J.P. de Oliveira Vaz Miranda de Sousa, advogados,G-Star Raw CV, by A. Grosso Alves and G. Paiva e Sousa, advogados,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and P. Salvação Barreto, acting as Agents,the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and F. De Luca, avvocato dell Stato,the United Kingdom Government, by S. Brandon and Z. Lavery, acting as Agents, and by J. Moss, Barrister,the European Commission, by J. Samnadda, B. Rechena and F. Wilman, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 2 May 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).2The request has been made in proceedings between Cofemel — Sociedade de Vestuário SA (‘Cofemel’) and G-Star Raw CV (‘G-Star’) concerning compliance with the copyright claimed by G-Star. Legal context International law The Berne Convention 3Article 2(7) of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’), states, inter alia:‘… it shall be a matter for legislation in the countries of the Union [constituted by that Convention] to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union [constituted by that Convention] only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.’ The WIPO Copyright Treaty 4On 20 December 1996 the World Intellectual Property Organisation (WIPO) adopted in Geneva the WIPO Copyright Treaty, which was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6) (‘the WIPO Copyright Treaty’).5Article 1(4) of the WIPO Copyright Treaty, that article being headed ‘Relation to the Berne Convention’, states:‘Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.’ EU law Directive 2001/29 6Recital 60 of Directive 2001/29 states:‘The protection provided under this Directive should be without prejudice to national or Community legal provisions in other areas, such as industrial property, …’7Articles 2 to 4 of that directive are respectively headed ‘Reproduction right’, ‘Right of communication to the public of works and right of making available to the public other subject matter’ and ‘Distribution right’. Those provisions require, inter alia, that Member States ensure that authors have the exclusive right to authorise or prohibit reproduction of their works (Article 2(a)), the exclusive right to authorise or prohibit the communication of their works to the public (Article 3(1)) and the exclusive right to authorise or prohibit distribution of their works (Article 4(1)).8Article 9 of that directive, headed ‘Continued application of other legal provisions’, provides that that directive does not affect, inter alia, provisions concerning other areas. A number of language versions of that article, including the German, English, Spanish, French and Italian versions, state that those areas include, inter alia, those of patent rights, trade marks, design rights and utility models. The Portuguese version of that article refers, for its part, to the areas of patent rights, trade marks and utility models, without mentioning design rights. Directive 98/71/EC 9Recital 8 of Directive 98/71/EC of the European Parliament and the Council of 13 October 1998 on the legal protection of designs (OJ 1998 L 289, p. 28) is worded as follows:‘… in the absence of harmonisation of copyright law, it is important to establish the principle of cumulation of protection under specific registered design protection law and under copyright law, whilst leaving Member States free to establish the extent of copyright protection and the conditions under which such protection is conferred.’10Article 1(a) of that directive, that article being headed ‘Definitions’, states that ‘design’ means ‘the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.’11Article 17 of that directive, headed ‘Relationship to copyright’, provides:‘A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State.’ Regulation (EC) No 6/2002 12Recital 32 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), states:‘In the absence of the complete harmonisation of copyright law, it is important to establish the principle of cumulation of protection under the Community design and under copyright law, whilst leaving Member States free to establish the extent of copyright protection and the conditions under which such protection is conferred.’13The definition of a ‘design’ in Article 3(a) of that regulation is the same as that in Article 1(a) of Directive 98/71.14Article 96(2) of that regulation, that article being headed ‘Relationship to other forms of protection under national law’, provides:‘A design protected by a Community design shall also be eligible for protection under the law of copyright of Member States as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State.’ Portuguese law 15Article 2 of the Código do Direito de Autor e dos Direitos Conexos (Code on Copyright and Related Rights), headed ‘Original works’, is worded as follows:‘1. Intellectual creations in the literary, scientific and artistic fields, irrespective of their genre, form of expression, quality, mode of communication and objective, shall include, inter alia:…(i)Works of applied art, industrial designs and works of design which constitute an artistic creation, irrespective of the protection relating to industrial property;…’ The dispute in the main proceedings and the questions referred for a preliminary ruling 16Cofemel and G-Star are two companies active in the sector of design, production and selling of clothing.17Since the 1990s G-Star has made use, as the proprietor or as the exclusive licence holder, of the trade marks G‑STAR, G‑STAR RAW, G‑STAR DENIM RAW, GS‑RAW, G‑RAW and RAW. The clothing designed, produced and placed on the market under those marks includes jeans of the design known as ARC and sweatshirts and tee-shirts of the design known as ROWDY.18Cofemel designs, produces and sells jeans, sweatshirts and t-shirts under the TIFFOSI trade mark.19On 30 August 2013, G-Star brought an action before a Portuguese court of first instance requesting that Cofemel be ordered to cease any acts constituting an infringement of its copyright and unfair competition in relation to it, and to compensate it for the harm suffered in that regard and, in the event of further infringements, to pay it a penalty payment in respect of each day of duration of each of the acts until they cease. In support of its action, G-Star argued, inter alia, that some designs of jeans, sweatshirts and t-shirts produced by Cofemel were comparable to its ARC and ROWDY designs. G-Star also claimed that the latter clothing constituted original intellectual creations and, as such, they ought to be classified as ‘works’ protected by copyright.20Cofemel’s defence was, inter alia, that such clothing designs could not be classified as ‘works’ entitled to such protection.21The court of first instance before which G-Star’s action was brought partly upheld its action, and ordered Cofemel, inter alia, to cease its infringement of G-Star’s copyright, to pay the latter a sum corresponding to the profits obtained from the sale of the clothing produced in breach of that copyright and to pay it a daily penalty payment in the event of a further infringement.22Cofemel brought an appeal against that judgment before the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal) which upheld it. In support of that decision, that court considered, first, that Article 2(1)(i) of the Code on Copyright and Related Rights ought to be construed, in the light of Directive 2001/29, as interpreted by the Court in the judgments of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465), and of 1 December 2011, Painer (C‑145/10, EU:C:2011:798), as meaning that copyright protection extended to works of applied art, industrial designs and works of design, provided that such subject matter was original, in other words that it was the result of the author’s own intellectual creation, there being no requirement that it had any particular degree of aesthetic or artistic value. Further, that court held that, in this case, the ARC and ROWDY clothing designs of G-Star constituted works entitled to copyright protection. Last, that court held that some of the clothing produced by Cofemel infringed G-Star’s copyright.23Hearing an appeal brought by Cofemel, the referring court, the Supremo Tribunal de Justiça (Supreme Court, Portugal) considers, in the first place, that the following facts are established: (i) the clothing designs of G-Star at issue in the appeal were designed either by designers employed by G-Star or by designers acting on its behalf who had assigned to G-Star their copyright in the designs; (ii) those clothing designs are the result of designs and a manufacturing process recognised as being innovative within the world of fashion; and (iii) those designs are characterised by a number of specific elements (3D effect, the positioning of various components, how they are assembled, etc.) that are allegedly partly copied by Cofemel in the making of its brand clothing.24In the second place, the referring court states that while Article 2(1)(i) of the Code on Copyright and Related Rights clearly includes works of applied art, industrial designs and works of design in the list of works protected by copyright, it does not specify the level of originality required for such subject matter to be granted that protection. The referring court also states that there is on that issue, which is at the heart of the dispute between Cofemel and G-Star, no consensus in Portuguese case-law and legal theory. For that reason, the referring court is uncertain whether it should be held, in the light of the interpretation of Directive 2001/29 adopted by the Court in the judgments of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465), and of 1 December 2011, Painer (C‑145/10, EU:C:2011:798), that the protection ensured by copyright extends to such subject matter in the same way as to any literary and artistic work, and therefore subject to the condition that it is original, in the sense that it is the result of the author’s own intellectual creation, or whether it is possible to hold that a prerequisite of such protection is the existence of a specific degree of aesthetic or artistic value.25In those circumstances, the Supremo Tribunal de Justiça (Supreme Court) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does the interpretation by the Court of Article 2(a) of Directive 2001/29 preclude national legislation — in the present case, the provision in Article 2(1)(i) of the Code on Copyright and Related Rights — which confers copyright protection on works of applied art, industrial designs and works of design which, over and above their practical purpose, create their own visual and distinctive effect from an aesthetic point of view, their originality being the fundamental criterion which governs the grant of protection in the area of copyright?(2)Does the interpretation by the Court of Article 2(a) of Directive 2001/29 preclude national legislation — in the present case, the provision in Article 2(1)(i) of the Code on Copyright and Related Rights — which confers copyright protection on works of applied art, industrial designs and works of design if, in the light of a particularly rigorous assessment of their artistic character, and taking account [of] the dominant views in cultural and institutional circles, they qualify as an “artistic creation” or “work of art”?’ Consideration of the questions referred The first question 26By its first question, the referring court seeks, in essence, to ascertain whether Article 2(a) of Directive 2001/29 must be interpreted as precluding national legislation from conferring protection, under copyright, to designs such as the clothing designs at issue in the main proceedings, on the ground that, over and above their practical purpose, they generate a specific and aesthetically significant visual effect.27Under Article 2(a) of Directive 2001/29, Member States are required to provide that authors have the exclusive right to authorise or prohibit reproduction of their works.28The term ‘work’ referred to by that provision is also to be found in Article 3(1) and Article 4(1) of Directive 2001/29, on the exclusive rights granted to the author of a work with respect to its communication to the public and its distribution, and in Articles 5, 6 and 7 of that directive, the first of those provisions concerning the exceptions or limitations that may be applied to those exclusive rights, and the latter two provisions concerning the technological measures and information measures that ensure the protection of those exclusive rights.29The concept of ‘work’ that is the subject of all those provisions constitutes, as is clear from the Court’s settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author’s own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation (see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 37 and 39, and of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraphs 33 and 35 to 37 and the case-law cited).30As regards the first of those conditions, it follows from the Court’s settled case-law that, if a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 88, 89 and 94, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 14).31On the other hand, when the realisation of a subject matter has been dictated by technical considerations, rules or other constraints, which have left no room for creative freedom, that subject matter cannot be regarded as possessing the originality required for it to constitute a work (see, to that effect, judgment of 1 March 2012, Football Dataco and Others, C‑604/10, EU:C:2012:115, paragraph 39 and the case-law cited).32As regards the second condition referred to in paragraph 29 of the present judgment, the Court has stated that the concept of a ‘work’ that is the subject of Directive 2001/29 necessarily entails the existence of a subject matter that is identifiable with sufficient precision and objectivity (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 40).33That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. So also must third parties against whom the protection claimed by the author of that subject matter may be asserted. Second, the need to ensure that there is no element of subjectivity, which is detrimental to legal certainty, in the process of identifying that subject matter means that the latter must have been expressed in an objective manner (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 41).34As emphasised by the Court, the required precision and objectivity is not attained where an identification is essentially based on the sensations, which are intrinsically subjective, of an individual who perceives the subject matter at issue (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 42).35Where a subject matter has the characteristics described in paragraphs 30 and 32 of the present judgment, and therefore constitutes a work, it must, as such, qualify for copyright protection, in accordance with Directive 2001/29, and it must be added that the extent of that protection does not depend on the degree of creative freedom exercised by its author, and that that protection is therefore not inferior to that to which any work falling within the scope of that directive is entitled (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 97 to 99).36In the light of that case-law, the answer to the first question involves, first, the determination of whether designs are, in general, capable of being classified as ‘works’, within the meaning of Directive 2001/29.37In that regard, it must initially be observed that, under Article 17(2) of the Charter of Fundamental Rights of the European Union, intellectual property is protected.38It is apparent from the wording of that provision that subject matter constituting intellectual property qualifies for protection under EU law. However, it does not follow that such subject matter or categories of subject matter must all qualify for the same protection.39Accordingly, the EU legislature has adopted various measures of secondary law with the aim of ensuring the protection of intellectual property, including, on the one hand, works protected by copyright, the subject of Directive 2001/29, and, on the other hand, designs falling within the scope of either Directive 98/71, applicable to designs registered in or in respect of a Member State, or Regulation No 6/2002, applicable to deigns protected at EU level.40In so proceeding, the EU legislature considered that subject matter protected as a design was not as general rule capable of being treated in the same way as subject matter constituting works protected by Directive 2001/29.41That legislative choice is consistent with the Berne Convention, with Articles 1 to 21 of which the European Union, while not a party to that convention, must nonetheless comply, pursuant to Article 1(4) of the WIPO Copyright Treaty, to which it is a party (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 38 and the case-law cited).42Article 2(7) of the Berne Convention permits the parties to that convention to grant to industrial designs and models a specific protection, which may differ from and which may exclude the protection afforded to literary and artistic works falling within the scope of that convention, and to determine the conditions governing such protection. At the same time, that provision does not rule out those two forms of protection being cumulative.43Against that background, the EU legislature opted for a system in which the protection reserved for designs and the protection ensured by copyright are not mutually exclusive.44As regards designs, the first sentence of Article 17 of Directive 98/71 states that a design protected by a design right registered in or in respect of a Member State in accordance with that directive is also to be eligible for protection under the law of copyright of the State in which or in respect of which that design was registered, as from the date on which the design was created or fixed in any form. The second sentence of Article 17 states that the extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, are to be determined by each Member State. As regards designs protected at EU level, rules comparable to those of Article 17 of Directive 98/71 are laid down in Article 96(2) of Regulation No 6/2002.45Those two provisions must themselves be construed in the light of recital 8 of Directive 98/71 and recital 32 of Regulation No 6/2002 respectively, which expressly refer to the principle of ‘cumulation’ of protection of designs, on the one hand, and copyright protection, on the other.46As regards copyright, it is apparent from Article 9 of Directive 2001/29, headed ‘Continued application of other legal provisions’, which must be interpreted taking into account, inter alia, all language versions of that article (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 122 and the case-law cited), and in the light of recital 60 of that directive, that Directive 2001/29 does not affect the existing provisions of national law or EU law in other areas, not least provisions concerning designs.47Accordingly, Directive 2001/29 preserves the existence and scope of the provisions in force relating to designs, including the principle of ‘cumulation’ referred to in paragraph 45 of the present judgment.48Having regard to all those provisions, it must be held that designs are capable of classification as ‘works’, within the meaning of Directive 2001/29, if they meet the two requirements mentioned in paragraph 29 of the present judgment.49That being the case, it must further be examined, in the second place, whether classification as ‘works’, having regard to those requirements, is possible for designs such as the clothing designs at issue in the main proceedings, designs which, over and above their practical purpose, generate, according to the referring court, a specific and aesthetically significant visual effect, and it may be said that the doubts of that court concern the issue of whether such a factor of aesthetic originality constitutes the central criterion for the granting of the protection provided for by Directive 2001/29.50On that point, it must be stated, first, that the protection of designs, on the one hand, and copyright protection, on the other, pursue fundamentally different objectives and are subject to distinct rules. As the Advocate General observed, in essence, in points 51 and 55 of his Opinion, the purpose of the protection of designs is to protect subject matter which, while being new and distinctive, is functional and liable to be mass‑produced. Further, that protection is to apply for a limited time, but sufficient time to ensure a return on the investment necessary for the creation and production of that subject matter, without thereby excessively restricting competition. For its part, the protection attached to copyright, the duration of which is significantly greater, is reserved to subject matter that merits being classified as works.51For those reasons, and as the Advocate General also observed in point 52 of his Opinion, the grant of protection, under copyright, to subject matter that is protected as a design must not have the consequence that the respective objectives and effectiveness of those two forms of protection are undermined.52It follows that, although the protection of designs and the protection associated with copyright may, under EU law, be granted cumulatively to the same subject matter, that concurrent protection can be envisaged only in certain situations.53In that regard, it must be observed, first, that, as follows from the usual meaning of the term ‘aesthetic’, the aesthetic effect that may be produced by a design is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at that design. Consequently, that subjective effect does not, in itself, permit a subject matter to be characterised as existing and identifiable with sufficient precision and objectivity, within the meaning of the case-law cited in paragraphs 32 to 34 of the present judgment.54Second, it is admittedly the case that aesthetic considerations play a part in creative activity. Nonetheless, the fact remains that the circumstance that a design may generate an aesthetic effect does not, in itself, make it possible to determine whether that design constitutes an intellectual creation reflecting the freedom of choice and personality of its author, thereby meeting the requirement of originality set out in paragraphs 30 and 31 of the present judgment.55It follows that the circumstance that designs such as the clothing designs at issue in the main proceedings generate, over and above their practical purpose, a specific and aesthetically significant visual effect is not such as to justify those designs being classified as ‘works’ within the meaning of Directive 2001/29.56In the light of all the foregoing, the answer to the first question is that Article 2(a) of Directive 2001/29 must be interpreted as precluding national legislation from conferring protection, under copyright, to designs such as the clothing designs at issue in the main proceedings, on the ground that, over and above their practical purpose, they generate a specific, aesthetically significant visual effect. The second question 57Having regard to the answer given to the first question, there is no need to answer this question. Costs 58Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding national legislation from conferring protection, under copyright, to designs such as the clothing designs at issue in the main proceedings, on the ground that, over and above their practical purpose, they generate a specific, aesthetically significant visual effect. [Signatures]( *1 ) Language of the case: Portuguese. | 425f3-fd337fd-473d | EN |
A German provision prohibiting internet search engines from using newspaper or magazine snippets without the publisher’s authorisation must be disregarded in the absence of its prior notification to the Commission | 12 September 2019 ( *1 )(Reference for a preliminary ruling — Industrial policy — Approximation of laws — Directive 98/34/EC — Procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services — Article 1(11) — Concept of ‘technical regulation’)In Case C‑299/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Berlin (Regional Court, Berlin, Germany), made by decision of 8 May 2017, received at the Court on 23 May 2017, in the proceedings VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google LLC, successor in law to Google Inc.,THE COURT (Fourth Chamber),composed of M. Vilaras, President of the Chamber, K. Jürimäe, D. Šváby (Rapporteur), S. Rodin and N. Piçarra, Judges,Advocate General: G. Hogan,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 24 October 2018,after considering the observations submitted on behalf of:–VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH, by U. Karpenstein, M. Kottmann, R. Heine and J. Hegemann, Rechtsanwälte,Google LLC, successor in title to Google Inc., by A. Conrad, W. Spoerr and T. Schubert, Rechtsanwälte,the German Government, by T. Henze, M. Hellmann and M. Kall, acting as Agents,the Greek Government, by E.-M. Mamouna and N. Dafniou, acting as Agents,the Spanish Government, by L. Aguilera Ruiz and by V. Ester Casas, acting as Agents,the Portuguese Government, by L. Inez Fernandes and M. Figueiredo, acting as Agents,the European Commission, by K. Petersen, Y. Marinova and J. Samnadda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 December 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 1(2), (5) and (11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’).2The request has been made in proceedings between VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH (‘VG Media’) and Google LLC concerning the alleged infringement by Google of rights related to copyright. Legal context Directive 98/34 3Article 1(2) to (5) and (11) of Directive 98/34 provides:‘For the purposes of this Directive, the following meanings shall apply:…2.“service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.For the purposes of this definition:“at a distance” means that the service is provided without the parties being simultaneously present,“by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,“at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.An indicative list of services not covered by this definition is set out in Annex V.3.“technical specification”, a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.The term “technical specification” also covers production methods and processes used in respect of agricultural products as referred to Article 38(1) of the Treaty, products intended for human and animal consumption, and medicinal products as defined in Article 1 of Directive 65/65/EEC …, as well as production methods and processes relating to other products, where these have an effect on their characteristics;4.“other requirements”, a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing;5.“rule on services”, requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point 2, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner,a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner.11.“technical regulation”, technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. De facto technical regulations include:laws, regulations or administrative provisions of a Member State which refer either to technical specifications or to other requirements or to rules on services, or to professional codes or codes of practice which in turn refer to technical specifications or to other requirements or to rules on services, compliance with which confers a presumption of conformity with the obligations imposed by the aforementioned laws, regulations or administrative provisions,voluntary agreements to which a public authority is a contracting party and which provide, in the general interest, for compliance with technical specifications or other requirements or rules on services, excluding public procurement tender specifications,technical specifications or other requirements or rules on services which are linked to fiscal or financial measures affecting the consumption of products or services by encouraging compliance with such technical specifications or other requirements or rules on services; technical specifications or other requirements or rules on services linked to national social security systems are not included.This comprises technical regulations imposed by the authorities designated by the Member States and appearing on a list to be drawn up by the [European] Commission before 5 August 1999, in the framework of the Committee referred to in Article 5.The same procedure shall be used for amending this list.’4The first subparagraph of Article 8(1) of that directive provides:‘Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.’5Directive 98/34 was repealed by Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1), which came into force on 7 October 2015 which was subsequent to the events at issue in the main proceedings. German law 6By the achtes Gesetz zur Änderung des Urheberrechtsgesetzes (Eight Law amending the Law on copyright) of 7 May 2013 (BGBl. 2013 I, p. 1161), Section 7 headed ‘Protection of publishers of newspapers and magazines’, concerning rights related to publishers of newspapers and magazines, was inserted, with effect from 1 August 2013, in Part 2 of the Gesetz über Urheberrecht und verwandte Schutzrechte (Law on copyright and related rights, ‘the UrhG’). Section 7 contains the following three paragraphs.7Paragraph 87f of the UrhG entitled ‘Publishers of newspapers and magazines’ provides:‘1. The publishers of newspapers and magazines shall have the exclusive right to make the newspaper or magazine or parts thereof available to the public for commercial purposes, unless it consists of individual words or very short text excerpts. Where the newspaper or magazine has been produced within a company, the owner of the company shall be the publisher.2. A newspaper or magazine is defined as the editorial and technical preparation of journalistic contributions which are compiled and published periodically on any media under one title, which, following an assessment of the overall circumstances, is to be regarded as largely typical for the publishing house and the overwhelming majority of which does not serve self-advertising purposes. Journalistic contributions are, more specifically, articles and illustrations which serve to disseminate information, form opinions or entertain.’8Paragraph 87g of the UrhG, entitled ‘Transferability, expiry of and limitations on the right’, is worded as follows:‘1. The right of publishers of newspapers and magazines referred to in Paragraph 87f(1), first sentence, shall be transferable. Paragraphs 31 and 33 shall apply mutatis mutandis.2. The right shall expire one year after publication of the newspaper or magazine.3. The right of publishers of newspapers and magazines may not be asserted to the detriment of the author or the holder of a right related to copyright whose work or subject matter protected under the present legislation is contained in the newspaper or magazine.4. It shall be permissible to make the newspaper or magazine or parts thereof available to the public unless this is done by commercial operators of search engines or commercial operators of services that similarly publish content. Moreover, the provisions of Section 6 of Part 1 shall apply mutatis mutandis.’9Paragraph 87h of the UrhG entitled ‘Right of participation of the author’ provides:‘The author shall be entitled to an equitable share of the remuneration.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 10VG Media is a collective management organisation, authorised in Germany, that defends copyright and rights related to copyright of television channels and private radio stations, as well as rights to digital editorial content. Against this background, VG Media concludes with rights holders the ‘administration agreement for television, radio and publishers’, in which those rights holders grant it, for exclusive administration, their current rights as well as those accruing to them during the term of the agreement, in respect of the newspapers or magazines produced by them.11Google operates several internet search engines including, in particular, the search engine of the same name, together with an automated news site (‘Google News’). On the ‘Google’ search engine, after the search term has been entered and the search function has been initiated, a short text or text excerpt (‘the Snippet’) appears with a thumbnail image that is intended to enable users to gauge the relevance of the displayed website in the light of the information they are looking for. As regards the news site ‘Google News’, it displays news from a limited number of news sources in a format akin to that of a magazine. The information on that site is collected by computers by means of an algorithm using a large number of sources of information. On that site, ‘the Snippet’ appears in the form of a short summary of the article from the website concerned, often containing the introductory sentences of that article.12In addition, Google publishes, by means of its online services, third-party advertisements on its own websites and on third party websites for a fee.13VG Media brought an action for damages against Google before the referring court in which it disputes, in essence, the use by Google, since 1 August 2013, of text excerpts, images and animated images produced by its members, without paying a fee in return for displaying search results and news summaries.14The referring court seeks to ascertain whether Paragraphs 87f and 87g of the UrhG are applicable to the dispute in the main proceedings. That court seeks guidance on whether those provisions, arising from the amendment, with effect from 1 August 2013, to the UrhG, should have been notified to the Commission during their drafting stage as foreseen in the first subparagraph of Article 8(1) of Directive 98/34. In that connection, the referring court relies on the case-law of the Court according to which the provisions adopted in breach of the duty of notification under that provision are inapplicable and are, therefore, unenforceable against individuals.15In those circumstances, the Landgericht Berlin (Regional Court, Berlin, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does a national rule which prohibits only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute, under Article 1(2) and (5) of [Directive 98/34], a rule which is not specifically aimed at the services defined in [Article 1(2)],and, if that is not the case,(2)does a national rule which prohibits only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute a technical regulation within the meaning of Article 1(11) of [Directive 98/34], namely a compulsory rule on the provision of a service?’ The request to have the oral procedure reopened 16Following the delivery of the Opinion of the Advocate General, VG Media, by documents lodged at the Court Registry on 16 January and 18 February 2019, applied for the oral procedure to be reopened.17In support of its request, VG Media claims, in essence, first, that the Advocate General, in particular in points 34 and 38 of his Opinion, made incorrect assessments of the national provisions at issue in the main proceedings and relied on facts that required a more detailed discussion. Secondly, VG Media claims that the political agreement between the European Parliament, the Council of the European Union and the Commission, which preceded the adoption of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92), must be taken into account by the Court of Justice for the purpose of the answers to the questions referred for a preliminary ruling.18Pursuant to Article 83 of its Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the oral part of the procedure to be reopened, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.19In that regard, it should be noted that, in his Opinion, the Advocate General relied on the matters of fact and of law as submitted to the Court by the referring court. In proceedings under Article 267 TFEU, which are based on a clear division of responsibilities between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgment of 26 April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraph 37 and the case-law cited).20Moreover, it is apparent from the documents before the Court that the facts of the case in the main proceedings predate the entry into force of Directive 2019/790, which is therefore not applicable ratione temporis to the dispute in the main proceedings.21Accordingly, the Court considers that it has all the information necessary to rule on the request for a preliminary ruling and that none of the evidence relied on by VG Media in support of its request justifies the reopening of the oral part of the procedure, in accordance with Article 83 of the Rules of Procedure.22In those circumstances, the Court, after hearing the Advocate General, considers that there is no need to order that the oral part of the procedure be reopened. Consideration of the questions referred 23It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. Further, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (judgment of 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 20 and the case-law cited).24In the present case, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(11) of Directive 98/34 must be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, which prohibits only commercial operators of search engines and commercial service providers that similarly publish content from making newspapers or magazines or parts thereof (excluding individual words and very short text excerpts) available to the public, constitutes a ‘technical regulation’ within the meaning of that provision, the draft of which is subject to prior notification to the Commission pursuant to the first subparagraph of Article 8(1) of that directive.25It should be recalled that the concept of a ‘technical regulation’ extends to four categories of measures, namely, (i) the ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1(4) of that directive; (iii) the ‘rule on services’, covered in Article 1(5), of that directive, and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1(11) of that directive (judgment of 26 September, Van Gennip and Others, C‑137/17, EU:C:2018:771, paragraph 37 and the case-law cited).26In that connection, it must be stated that in order for a national measure to fall within the first category of technical regulations that is referred to in Article 1(3) of Directive 98/34, that is to say, within the concept of ‘technical specification’, that measure must necessarily refer to the product or its packaging as such and thus lay down one of the characteristics required of a product (judgment of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 28 and the case-law cited). Moreover, the concept of ‘other requirements’ within the meaning of Article 1(4) of that directive concerns the life cycle of a product after it has been placed on the market (judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 72).27In the present case, the national provision at issue in the main proceedings does not fall within the first and second categories of measures mentioned in paragraph 25 of the present judgment. That provision does not refer to products themselves, in this case newspapers or magazines, but, as the Advocate General observed in point 22 of his Opinion, to the prohibition on commercial operators of internet search engines or commercial service providers that similarly publish content from making newspapers or magazines available to the public.28As regards the question whether the national provision at issue in the main proceedings is a ‘rule on services’, within the meaning of Article 1(5) of Directive 98/34, it must first be recalled that, under Article 1(2) of that directive, a ‘service’ is defined as ‘any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.29In that regard, it is apparent from the order for reference and from the wording of the first question that the referring court takes the view that the national provision at issue in the main proceedings is a ‘rule on services’, without explaining its reasoning. It merely states that search engine providers supply — at a distance, by electronic means and at the individual request of the recipient of services, who initiates the search after entering a search term — an information society service within the meaning of Article 1(2) of that directive.30As regards the services provided by commercial operators of internet search engines, there is in fact no doubt that they constitute such services. By contrast, that is not necessarily the case for services provided by commercial service providers that similarly publish content. As the Commission points out, the similar publication of the contents of newspapers or magazines can be done other than via the internet or by means of electronic communications, such as, for example, on paper.31Next, in order to determine whether a rule can be classified as a ‘rule on services’, the definition in Article 1(5) of Directive 98/34 requires that rule to be ‘specifically’ aimed at information society services.32In that regard it should be noted that under the first indent of Article 1(5) of that directive, a rule shall be considered as specifically aimed at information society services having regard to both its statement of reasons and its operative part. Under that same provision, moreover, it is not required that ‘the specific aim and object’ of all of the rule in question be to regulate information society services, as it is sufficient that the rule pursue that aim or object in some of its provisions (judgment of 20 December 2017, Falbert and Others, C‑255/16, EU:C:2017:983, paragraph 32).33In addition, even where it is not apparent solely from the wording of a national rule that it is aimed, at least in part, at regulating information society services specifically, that object may nevertheless be gleaned quite readily from the stated reasons given for the rule, as they appear, in accordance with the relevant national rules of interpretation in that regard, inter alia from the travaux préparatoires for the rule (see, to that effect, judgment of 20 December 2017, Falbert and Others, C‑255/16, EU:C:2017:983, paragraph 33).34In the present case, first, it should be noted that Paragraph 87g(4) of the UrhG expressly refers, inter alia, to the commercial providers of search engines for which it is common ground that they provide services falling within the scope of Article 1(2) of Directive 98/34.35Secondly, it appears that the national rule at issue in the main proceedings has as its specific aim and object the regulation of information society services in an explicit and targeted manner.36Although the referring court does not provide any clear indications as to the specific aim and object of the national legislation at issue in the main proceedings, it is, however, apparent from the observations submitted by the German Government at the hearing before the Court that, initially, the amendment of the UrhG specifically concerned internet search engine providers. Moreover, the parties to the main proceedings and the Commission state, in their written observations, that the purpose of that legislation was to protect the legitimate interests of publishers of newspapers and magazines in the digital world. It appears, therefore, that the main aim and object of the national provision at issue in the main proceedings was to protect those publishers from copyright infringements by online search engines. In that context, protection appears to have been considered necessary only for systematic infringements of works of online publishers by information society service providers.37It is true that the prohibition on making newspapers or magazines available to the public, provided for in Paragraph 87g(4) of the UrhG, relates not only to online service providers but also to offline service providers. However, it is apparent from recitals 7 and 8 of Directive 98/48, by which Directive 98/34 was amended, that the purpose of Directive 94/48 was to adapt existing national legislation to take account of new information society services and avoid restrictions on the freedom to provide services and freedom of establishment leading to ‘refragmentation of the internal market’. It would, however, run counter to that objective to exclude a rule, the aim and object of which is in all probability to regulate online services relating to newspapers or magazines, from classification as a rule specifically targeting such services within the meaning of Article 1(5) of Directive 98/34 on the sole ground that its wording not only refers to online services, but also to services provided offline (see, to that effect, judgment of 20 December 2017, Falbert and Others, C‑255/16, EU:C:2017:983, paragraphs 34 and 35).38Moreover, the fact that Paragraph 87g(4) of the UrhG forms part of national legislation on copyright or rights related to copyright is not such as to call that assessment into question. Technical rules on intellectual property are not expressly excluded from the scope of Article 1(5) of Directive 98/34, unlike those forming the subject matter of European legislation in the field of telecommunications services or financial services. In addition, it is apparent from the judgment of 8 November 2007, Schwibbert (C‑20/05, EU:C:2007:652) that provisions of national intellectual property legislation may constitute a ‘technical regulation’ subject to notification pursuant to Article 8(1) of that directive.39In so far as a rule, such as that at issue in the main proceedings, is specifically aimed at information society services, the draft technical regulation must be subject to prior notification to the Commission pursuant to Article 8(1) of Directive 98/34. Failing that, according to settled case-law, the inapplicability of a technical regulation that has not been notified in accordance with that provision may be relied upon in proceedings between individuals (judgment of 27 October 2016, James Elliott Construction, C‑613/14, EU:C:2016:821, paragraph 64 and the case-law cited).40In the light of the foregoing, the answer to the questions referred is that Article 1(11) of Directive 98/34 must be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, which prohibits only commercial operators of search engines and commercial service providers that similarly publish content from making newspapers or magazines or parts thereof (excluding individual words and very short text excerpts) available to the public, constitutes a ‘technical regulation’ within the meaning of that provision, the draft of which is subject to prior notification to the Commission pursuant to the first subparagraph of Article 8(1) of that directive. Costs 41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fourth Chamber) hereby rules: Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998), must be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, which prohibits only commercial operators of search engines and commercial service providers that similarly publish content from making newspapers or magazines or parts thereof (excluding individual words and very short text excerpts) available to the public, constitutes a ‘technical regulation’ within the meaning of that provision, the draft of which is subject to prior notification to the Commission pursuant to the first subparagraph of Article 8(1) of Directive 98/34, as amended by Directive 98/48. [Signatures]( *1 ) Language of the case: German. | 66388-80da05b-49b7 | EN |
The General Court annuls the Commission decision approving the modification of the exemption regime for the operation of the OPAL gas pipeline | 10 September 2019 ( *1 )(Internal market in natural gas — Directive 2009/73/EC — Commission Decision approving the variation of the conditions for the exemption from EU requirements of the rules governing the operation of the OPAL pipeline in regard to third party access and tariff regulation — Article 36(1) of Directive 2009/73 — Principle of energy solidarity)In Case T‑883/16, Republic of Poland, represented by B. Majczyna, K. Rudzińska and M. Kawnik, acting as Agents,applicant,supported by Republic of Latvia, represented by I. Kucina, G. Bambāne and V. Soņeca, acting as Agents,and by Republic of Lithuania, represented initially by D. Kriaučiūnas, R. Dzikovič and R. Krasuckaitė, and subsequently by R. Dzikovič, acting as Agents,interveners,v European Commission, represented by O. Beynet and K. Herrmann, acting as Agents,defendant, Federal Republic of Germany, represented initially by T. Henze and R. Kanitz, and subsequently by R. Kanitz, acting as Agents,intervener,ACTION pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on the review of the conditions for exemption of the OPAL pipeline, granted under Directive 2003/55/EC, from the rules on third party access and tariff regulation,THE GENERAL COURT (First Chamber, Extended Composition),composed of I. Pelikánová (Rapporteur), President, V. Valančius, P. Nihoul, J. Svenningsen and U. Öberg, Judges,Registrar: F. Oller, Administrator,having regard to the written part of the procedure and further to the hearing on 23 October 2018,gives the following Judgment I. Legal framework 1Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), was repealed and replaced by Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94).2Article 32 of Directive 2009/73, which is identical to Article 18 of Directive 2003/55, reads as follows:‘Third party access1. Member States shall ensure the implementation of a system of third party access to the transmission and distribution system, and LNG facilities based on published tariffs, applicable to all eligible customers, including supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 41 by a regulatory authority referred to in Article 39(1) and that those tariffs — and the methodologies, where only methodologies are approved — are published prior to their entry into force.2. Transmission system operators shall, if necessary for the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.3. The provisions of this Directive shall not prevent the conclusion of long-term contracts in so far as they comply with Community competition rules.’3Article 36 of Directive 2009/73, which replaced Article 22 of Directive 2003/55, reads as follows:‘New infrastructure1. Major new gas infrastructure, i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 9, 32, 33 and 34 and Article 41(6), (8) and (10) under the following conditions:(a)the investment must enhance competition in gas supply and enhance security of supply;(b)the level of risk attached to the investment must be such that the investment would not take place unless an exemption was granted;(c)the infrastructure must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built;(d)charges must be levied on users of that infrastructure; and(e)the exemption must not be detrimental to competition or the effective functioning of the internal market in natural gas, or the efficient functioning of the regulated system to which the infrastructure is connected.…3. The [national regulatory authority] may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.6. An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.8. The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in an aggregated form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to paragraph 1 including the relevant point or points of that paragraph on which such decision is based, including the financial information justifying the need for the exemption;the analysis undertaken of the effect on competition and the effective functioning of the internal gas market resulting from the grant of the exemption;the reasons for the time period and the share of the total capacity of the gas infrastructure in question for which the exemption is granted;in case the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; andthe contribution of the infrastructure to the diversification of gas supply.9. Within a period of two months from the day following the receipt of a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority.The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.…’4Paragraph 28a(1) of the Gesetz über die Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz — EnWG) (German law on the supply of electricity and gas) of 7 July 2005 (BGBl. 2005 I, p. 1970, 3621) (‘the EnWG’), in the version applicable to the facts in the present case, allows the Bundesnetzagentur (BNetzA, Federal Network Agency, Germany), inter alia, to exempt interconnectors between the Federal Republic of Germany and other States from the provisions governing third party access. The conditions for the application of Paragraph 28a of the EnWG are the same, in essence, as those of Article 36(1) of Directive 2009/73. II. Background to the dispute 5On 13 March 2009, the BNetzA, the German national regulatory authority, notified the Commission of the European Communities of two decisions of 25 February 2009 which exempted the capacities for cross-border transmission of the planned gas pipeline Ostseepipeline-Anbindungsleitung (OPAL) from the application of the rules on third party access laid down in Article 18 of Directive 2003/55 and tariff regulation laid down in Article 25(2) to (4) of that directive. The OPAL gas pipeline is the terrestrial section, to the west, of the Nord Stream 1 gas pipeline, the point of entry to which is located close to the area of Lubmin, near Greifswald, in Germany, and the point of exit from which is in the area of Brandov in the Czech Republic. The two decisions concerned the respective shares held by the two owners of the OPAL pipeline.6The Opal pipeline is owned by WIGA Transport Beteiligungs-GmbH & Co. (‘WIGA’, previously W & G Beteiligungs-GmbH & Co. KG, previously Wingas GmbH & Co. KG), which owns an 80% share of that pipeline, and E.ON Ruhrgas AG, which owns a 20% share thereof. WIGA is jointly controlled by OAO Gazprom and BASF SE. The company operating the share of the OPAL pipeline belonging to WIGA is OPAL Gastransport GmbH & Co. KG (‘OGT’).7By decision C(2009) 4694 (‘the original decision’), of 12 June 2009, the Commission asked the BNetzA, pursuant to Article 22(4), third subparagraph, of Directive 2003/55 (now Article 36(9) of Directive 2009/73) to vary its decisions of 25 February 2009 by adding the following conditions:‘(a)Without prejudice to the requirement in (b), an undertaking dominant on one or several large markets in natural gas upstream or downstream covering the Czech Republic shall not be authorised to reserve, in a single year, more than 50% of the transport capacities of the OPAL pipeline at the Czech border. Reservations from undertakings belonging to the same group, such as Gazprom and Wingas, shall be examined together. Reservations from dominant undertakings/groups of dominant undertakings which have concluded significant long-term contracts for the supply of gas shall be examined on an aggregated basis …The limit of 50% of the capacities may be exceeded if the undertaking concerned releases to the market a volume of 3 billion m3 of gas on the OPAL pipeline under an open, transparent and non-discriminatory procedure (“Gas Release Programme”). The undertaking managing the pipeline or the undertaking required to carry out the programme must ensure the availability of corresponding transport capacities and the free choice of the exit point (“Capacity release programme”). The form of the Gas Release and Capacity Release programmes is subject to the approval of the BNetzA.’8On 7 July 2009, the BNetzA amended its decisions of 25 February 2009 by incorporating the conditions referred to in paragraph 7 above included in the original decision. The exemption from the rules was granted by the BNetzA for a period of 22 years.9The OPAL pipeline was put into service on 13 July 2011 and has a capacity of about 36.5 billion m3/year in its northern section between Greifswald and the entry point of Groß-Köris to the south of Berlin (Germany). By contrast, the southern section of the OPAL pipeline, between Groß-Köris and the exit point at Brandov, has a capacity of 32 billion m3/year. The difference of 4.5 billion m3/year was destined to be sold in the Gaspool market area, which comprises the north and east of Germany.10By virtue of the original decision and the decisions of the BNetzA of 25 February 2009, as amended by its decision of 7 July 2009, the capacities of the OPAL pipeline were entirely exempted from application of the rules governing third party access and tariff regulation on the basis of Directive 2003/55.11In the current technical configuration, natural gas can be supplied at the pipeline entry point close to Greifswald only by the Nord Stream 1 pipeline, used by the Gazprom group to transport gas from Russian gas fields. As Gazprom did not implement the gas release programme referred to in the original decision, the non-reserved 50% of the capacity of that pipeline has never been used, with the result that only 50% of the transmission capacity of the OPAL pipeline has been used.12On 12 April 2013 OGT, OAO Gazprom and Gazprom Eksport LLC formally requested the BNetzA to vary certain provisions of the exemption granted in 2009.13On 13 May 2016, the BNetzA notified the Commission, on the basis of Article 36 of Directive 2009/73, of its intention, following the request submitted by OGT, OAO Gazprom and Gazprom Eksport, to vary certain provisions of the exemption granted in 2009 regarding the share of the OPAL pipeline operated by OGT by concluding with the latter a public law contract, which, under German law, is equivalent to an administrative decision.14In essence, the variation proposed by the BNetzA consisted of replacing the restriction imposed by the original decision on the capacity that could be reserved by dominant undertakings (see paragraph 7 above) with the obligation, for OGT, to offer, by auction, at least 50% of the capacity operated by it, namely 15864532 kWh/h (approximately 12.3 billion m3/year), of which 14064532 kWh/h (approximately 10.98 billion m3/year) was to take the form of fixed dynamically attributable capacity (feste dynamisch zuordenbare Kapazitäten (DZK)) and 1800000 kWh/h (approximately 1.38 billion m3/year) to take the form of fixed freely attributable capacities (feste frei zuordenbare Kapazitäten (FZK)) at the exit point of Brandov. If, for two consecutive years, the demand for FZK capacities exceeded the initial offer of 1800000 kWh/h, OGT was required, under certain conditions, to increase the offer of such capacities up to a ceiling of 3600000 kWh/h (approximately 2.8 billion m3/year).15On 28 October 2016, the Commission adopted, on the basis of Article 36(9) of Directive 2009/73, Decision C(2016) 6950 final on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55 (‘the contested decision’), which is addressed to the BNetzA. The procedure laid down in Article 36 of Directive 2009/73 corresponds in essence to that laid down in Article 22 of Directive 2003/55, which constituted the legal basis for the original decision. The contested decision was published on the Commission website on 3 January 2017.16In the contested decision, the Commission first of all observed, in recitals 18 to 21, that, although Article 36 of Directive 2009/73 did not contain a provision explicitly covering the possibility of varying an exemption, such as that contained in the original decision authorised under Article 22 of Directive 2003/55, it followed from the general principles of administrative law that decisions with long-lasting effects might be subject to a review. Thus, in view of the principle of congruent forms and in order to ensure legal certainty, the Commission found that it was appropriate in this case to examine the proposed variation to the original exemption, as submitted by the BNetzA, under the procedure set out in Article 36 of Directive 2009/73 for new installations. As to the substantial conditions that such a variation was required to satisfy, the Commission considered that, in the absence of specific review clauses, changes to the scope of an exemption granted previously or to the conditions attached to that exemption had to be justified and that, in that respect, new factual developments that had occurred since the original exemption decision could constitute a valid reason for a review of the original decision.17As to the substance, by the contested decision the Commission approved the variations to the exemption regime proposed by the BNetzA, subject to certain amendments, namely, in particular:–the initial offer of capacities to be auctioned was required to cover 3200000 kWh/h (approximately 2.48 billion m3/year) of FZK capacities and 12664532 kwh/h (approximately 9.83 billion m3/year) of DZK capacities;an increase in the volume of FZK capacities had to be offered at auction in the subsequent year, if, at an annual auction, demand exceeded 90% of the capacities offered, and had to be made in tranches of 1600000 kWh/h (approximately 1.24 billion m3/year) up to a maximum of 6400000 kWh/h (approximately 4.97 billion m3/year);an undertaking or group of undertakings with a dominant position in the Czech Republic or controlling more than 50% of the gas arriving at Greifswald could bid for FZK capacities only at the base price, which was required to be set no higher than the average base price of regulated tariffs on transmission networks from the Gaspool area to the Czech Republic for comparable products in the same year.18On 28 November 2016, the BNetzA amended the exemption granted by its decision of 25 February 2009 concerning the share of the OPAL pipeline operated by OGT, in accordance with the contested decision, by entering into a public-law contract with OGT which, under German law, is equivalent to an administrative decision. III. Procedure and forms of order sought 19By application lodged at the Court Registry on 16 December 2016, the Republic of Poland brought the present action.20By a separate document, lodged at the Court Registry on the same day, the Republic of Poland submitted an application for interim measures, which was rejected by order of 21 July 2017, Poland v Commission (T‑883/16 R, EU:T:2017:542). The costs were reserved.21By documents lodged at the Court Registry on 19 January, 20 and 29 March 2017 respectively, the Federal Republic of Germany applied to intervene in the present proceedings in support of the form of order sought by the Commission, whilst the Republic of Latvia and the Republic of Lithuania applied to intervene in support of the form of order sought by the Republic of Poland. Since the main parties raised no objections, the President of the First Chamber of the General Court granted those applications to intervene.22The defence was lodged at the Court Registry on 3 March 2017.23By a document lodged at the Court Registry on 13 March 2017 the Republic of Poland, following the publication of the contested decision on 3 January 2017, submitted written submissions complementary to the application and raised an additional plea in law.24By a document lodged at the Court Registry on 9 June 2017, the Commission lodged its observations on the Republic of Poland’s written submission of 13 March 2017.25The reply and the rejoinder were lodged at the Court Registry on 2 June and 31 August 2017, respectively.26By a document lodged at the Court Registry on 22 December 2017, the Republic of Poland requested, pursuant to Article 28(1) and (5) of the Rules of Procedure of the General Court, that the case be referred to the Grand Chamber or, at the very least, a chamber sitting with five judges. On 16 February 2018, the Court decided not to propose referring the case to the Grand Chamber and took note of the fact that, under Article 28(5) of the Rules of Procedure, the case was attributed to the First Chamber, sitting in its extended composition.27As measures of organisation of the procedure, the Court invited the Republic of Poland and the Commission to produce various documents and reply to various questions. The Republic of Poland and the Commission complied with those requests.28The parties and the interveners presented oral argument and answered the questions put to them by the Court at the hearing on 23 October 2018.29The Republic of Poland claims that the Court should:annul the contested decision;order the Commission to pay the costs.30The Republic of Latvia claims that the Court should:31The Republic of Lithuania claims that the Court should annul the contested decision.32The Commission, supported by the Federal Republic of Germany, contends that the Court should:not take into account, owing to its inadmissibility, the written submission of the Republic of Poland of 13 March 2017;dismiss the application;order the Republic of Poland to pay the costs. IV. Law A. On the admissibility of the written submission of the Republic of Poland of 13 March 2017 33The Republic of Poland lodged its action on 16 December 2016 on the sole basis of the press release relating to the contested decision, which was published by the Commission on the day that the contested decision was adopted, namely 28 October 2016. The contested decision itself was published on 3 January 2017 on the Commission’s website.34The Republic of Poland submits that it was only following the publication of the contested decision on the Commission’s website that it was able to know the precise content of that decision. Thus, it was after having examined the contested decision, as published, that it lodged, on 13 March 2017, ‘a supplement to the application’ (‘the supplementary written submission’), in which it, first, submitted additional arguments in support of its first plea and, second, raised a supplementary plea in law.35The Commission contests the admissibility of the supplementary written submission. First, it submits that, by the application lodged on 16 December 2016, the Republic of Poland exhausted its right to bring proceedings pursuant to Article 263 TFEU by causing the period for an action based on the date of knowledge of the content of the contested decision to start to run, and that it was not entitled to benefit from a new period for bringing an action on the basis of the later publication of the contested decision. Secondly, the Commission recalls that the possibility of ‘supplementing’ an application is not provided for in the Rules of Procedure, since new pleas in law based on facts arising subsequently could be raised in the reply, in accordance with Article 84(2) of the Rules of Procedure. Thirdly, the Commission submits that the supplementary written submission, by invoking a new period for bringing an action, is a form of ‘supplementary application’, which is inadmissible on the ground of lis pendens since, inter alia, the commencement of the action on 16 December 2016 enabled the Republic of Poland to benefit from effective judicial protection, including through interim measures.36Under the sixth paragraph of Article 263 TFEU, the proceedings provided for in that article are to be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.37Therefore, in the present case, since the contested decision was published on 3 January 2017, it is on that date that the period for bringing proceedings started to run. Under Article 60 of the Rules of Procedure, that period is to be extended on account of distance by a single period of 10 days. Consequently, the time limit for bringing proceedings in the present case expired on 13 March 2017.38Thus, the supplementary written submission, lodged at the Court Registry on 13 March 2017, was lodged on the last day of the period for bringing proceedings, that is to say before the time limit expired. It must therefore be declared admissible.39That finding is not called into question by the Commission’s arguments.40First, the Commission’s argument that the Republic of Poland has exhausted its right to bring proceedings by causing the period for bringing proceedings to start to run on the basis of the date of knowledge of the content of the contested decision cannot succeed.41It is, in the first place, settled case-law that the time limit prescribed for bringing actions is a matter of public policy and is not subject to the discretion of the parties or the Court, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraph 38 and the case-law cited). Thus, where an applicant brings an action before the period laid down in the sixth paragraph of Article 263 TFEU has started to run, it does not follow that the time limit laid down in that article is varied as a result. Consequently, in the present case, the period for bringing proceedings did not commence on the date on which the action was brought but, in accordance with the sixth paragraph of Article 263 TFEU, on the date of publication of the contested decision (see, to that effect, judgment of 26 September 2013, PPG and SNF v ECHA, C‑626/11 P, EU:C:2013:595, paragraphs 38 and 39).42In the second place, the date of publication of a press release announcing the adoption of a decision cannot in any event be held to cause the period for bringing an action to start to run. In particular, since such a press release contains only a short summary of the decision in question, it cannot be assumed that reading it amounts to ‘knowledge’ of the contested decision within the meaning of the sixth paragraph of Article 263 TFEU.43Secondly, as regards the argument that the Rules of Procedure do not provide for the possibility of producing written submissions to supplement the application after the application has been lodged, it should be recalled that, according to the case-law, as the European Union is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the EU Treaty, the procedural rules governing actions brought before the EU Courts must be interpreted in such a way as to ensure, wherever possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under EU law (judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 45).44Accordingly, the mere fact that the Rules of Procedure do not provide expressly for the possibility of producing written submissions to supplement the application initiating proceedings once that application has been lodged cannot be construed as excluding such a possibility, provided that the submissions supplementing the application are lodged before the expiry of the time limit for bringing proceedings.45Similarly, although Article 84(2) of the Rules of Procedure provides that, where a new fact comes to light in the course of the procedure, new pleas in law or arguments must be introduced in the second exchange of pleadings, it does not follow from that provision that if, as in the present case, before expiry of the time limit for bringing an action and before lodging a reply, the applicant produces a separate document in order to introduce its pleas and arguments regarding the contested decision, which has been published after it lodged its application, that separate document is inadmissible.46In the present case the Commission was placed in the position of being able to respond to the pleas and arguments raised by the Republic of Poland in its supplementary written submission. Following an invitation by the Court, it submitted observations on the supplementary written submission on 9 June 2017. In those circumstances, declaring the supplementary written submission admissible would not harm the possibility for the Commission of replying to the pleas and arguments of the applicant in the instant case.47In the light of the foregoing, the supplementary written submission lodged by the Republic of Poland on 13 March 2017, thus before the expiry of the time limit for bringing proceedings, must be declared admissible. B. Substance 48In support of its action, the Republic of Poland relies on six pleas in law alleging, first, infringement of Article 36(1)(a) of Directive 2009/73, read in conjunction with Article 194(1)(b) TFEU and the principle of solidarity; second, the lack of competence of the Commission and infringement of Article 36(1) of Directive 2009/73; third, infringement of Article 36(1)(b) of Directive 2009/73; fourth, infringement of Article 36(1)(a) and (e) of Directive 2009/73; fifth, infringement of international conventions to which the European Union is a party and, sixth, infringement of the principle of legal certainty.49It is appropriate to begin by examining the first plea. 1. The first plea in law, alleging the infringement of Article 36(1)(a) of Directive 2009/73, read in conjunction with Article 194(1)(b) TFEU and the principle of solidarity 50In recitals 49 to 53 of the contested decision, after having recalled that, in the original decision, it had reached the conclusion that the OPAL pipeline would enhance security of supply, the Commission examined whether the changes proposed by the BNetzA to the regime governing the pipeline’s operation were liable to lead to a different assessment. It reached the conclusion that that was not the case, taking into account, inter alia, the fact that the additional capacity that was likely effectively to be used on the Nord Stream 1 pipeline, resulting from the increase of the capacity actually used on the OPAL pipeline, was insufficient to replace entirely the quantities of gas flowing hitherto through the Braterstwo and Yamal pipelines.51The Republic of Poland, supported by the Republic of Lithuania, submits that the contested decision infringes the principle of energy security and the principle of energy solidarity, and hence contravenes Article 36(1)(a) of Directive 2009/73, read in conjunction with Article 194(1)(b) TFEU. According to it, the grant of a new exemption relating to the OPAL pipeline threatens the security of supply in the European Union, in particular in central Europe. In particular, the reduction of the transport of gas through the Yamal and Braterstwo pipelines could lead to a weakening of the energy security of Poland and considerably undermine the diversification of sources of supply of gas. (a) The alleged infringement of Article 36(1)(a) of Directive 2009/73 52The Republic of Poland recalls that, in accordance with Article 36(1)(a) of Directive 2009/73, an exemption to the rules may only be granted for the benefit of a major new gas infrastructure if the investment in the infrastructure concerned improves the security of supply of gas, which is a criterion that should, according to it, be interpreted consistently with Regulation (EU) No 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC (OJ 2010 L 295, p. 1), and in the light of the primary objective of the energy policy of the European Union, set out in Article 194(1) TFEU, namely to ensure energy security in the European Union as a whole and in all its Member States individually.53The Commission, supported by the Federal Republic of Germany, disputes those arguments.54Article 36(1)(a) of Directive 2009/73 provides that ‘major new gas infrastructures … may, upon request, be exempted, for a defined period of time, from the provisions [inter alia, on third party access] under the following conditions: (a) the investment must … enhance security of supply’.55As a preliminary point, it is necessary to reject the argument advanced by the Republic of Poland that that criterion applies in the present case because the contested decision grants a new exemption from third party access.56It must be held, in the present case, that by the contested decision the Commission did not approve the introduction of a new exemption but the variation of an existing exemption. It should be recalled, in that regard, that in accordance with the decisions of 25 February 2009 of the BNetzA, as varied by the decisions of 7 July 2009 (see paragraphs 5 and 8 above), the cross-border transmission capacities of the OPAL pipeline were already covered by an exemption as to the application of the rules on third party access laid down in Article 18 of Directive 2003/55 and the rules on tariff regulation laid down in Article 25(2) to (4). As set out in paragraphs 14 to 16 above, the regime proposed on 13 May 2016 by the BNetzA, as varied in accordance with the contested decision, maintained that exemption in principle, while varying the conditions that were attached to it.57It should in that context be clarified that, as the Commission emphasised at the hearing, the contested decision did not vary the original decision. Under Article 36(3) of Directive 2009/73, it is the national regulatory authority which lays down the exemption referred to in paragraph 1 of that article. Thus, it was the BNetzA that made the exemption decision of 2009 (see paragraphs 5 and 8 above) and which, in 2016, varied the conditions of that exemption, by concluding a contract governed by public law with OGT (see paragraph 18 above). In both cases, the Commission restricted itself to exercising the power of review, which was conferred on it by the third subparagraph of Article 22(4) of Directive 2003/55 and subsequently by Article 36(9) of Directive 2009/73, by asking the BNetzA to make amendments to its decisions. The original decision and the contested decision were thus two independent decisions each of which ruled on a measure proposed by the German authorities, namely, first, the decisions of the BNetzA of 25 February 2009 (see paragraph 5 above) and, second, the contract governed by public law notified on 13 May 2016 (see paragraph 13 above), equivalent to an administrative decision.58As regards the criterion relating to the enhancement of security of supply, it is clear from the wording of Article 36(1)(a) of Directive 2009/73 that it is not the exemption applied for but the investment which must satisfy that criteria, namely, in the present case, the construction of the OPAL pipeline. Consequently, it is at the time of the original decision that the Commission was required to satisfy itself that the investment proposed met that criterion. By contrast, the Commission was not required to examine that criterion as part of the contested decision, which merely approved a variation to the conditions attached to the exemption. Indeed, since no new investment was being proposed at that stage, and the variation to the operating conditions proposed by the BNetzA did not alter the OPAL pipeline as an infrastructure, that question could not receive a different response in 2016 from that given in 2009.59The fact that, in the contested decision, the Commission carried out an assessment that was not required by the applicable rules cannot lead the EU Court, in the context of an action brought before it, to review that decision on the basis of a criterion that is not laid down by the law.60Therefore, to the extent that it is based on Article 36(1)(a) of Directive 2009/73, the first plea in law must be rejected as ineffective. (b) The alleged infringement of Article 194(1) TFEU 61As regards Article 194(1) TFEU, the Republic of Poland, supported by the Republic of Lithuania, submits that the principle of solidarity referred to in that article is one of the European Union’s priorities in the field of energy policy. According to it, that principle obliges both the Member States and the EU institutions to conduct the EU energy policy in a spirit of solidarity. In particular, measures adopted by EU institutions that compromise the energy security of certain regions or in certain Member States, including their security of gas supply, would be contrary to the principle of energy solidarity.62The Republic of Poland points out that the contested decision enables Gazprom and undertakings in the Gazprom group to redirect onto the EU market additional volumes of gas by fully exploiting the capacities of the Nord Stream 1 pipeline. Taking into account the lack of significant growth in demand for natural gas in central Europe, that would, as its only possible consequence, have an influence on the conditions of supply and use of transmission services of the pipelines competing with OPAL, namely the Braterstwo and Yamal pipelines, in the form of a reduction or even a complete interruption of the transmission of gas through those two pipelines.63First, in that regard the Republic of Poland fears that such a limitation or interruption in transmission through the Braterstwo pipeline would have the effect of rendering impossible the maintenance of supply on the territory of Poland through the pipeline from the Ukraine, which would result in it being impossible to guarantee the continuity of supply for clients on the territory of Poland, with the following consequences, which were apparently not examined by the Commission:the impossibility, for the companies responsible for it, of meeting their obligation to guarantee the supply of gas to protected clients;the impossibility of the gas system functioning effectively and of assigning commercial operating opportunities for gas storage facilities;the likelihood of a considerable increase in the cost of obtaining gas.64Secondly, taking into account the expiry in 2020 of the contract for the transport of gas via the Yamal pipeline towards western Europe, followed by the expiry in 2022 of the contract for the supply of gas towards Poland via that same pipeline, the Republic of Poland fears that there is a risk of reduction or even of a complete interruption of the supply of gas through the Yamal pipeline, which would have negative effects on:the availability of importation capacities into Poland from German and the Czech Republic;the level of transport tariffs from those two countries;the diversification of the sources of gas supply in Poland and in other central and eastern European Member States.65The Commission disputes those arguments. In particular it submits that energy solidarity is a political notion that appears in its communications and documents, whereas the contested decision must satisfy the legal criteria laid down in Article 36(1) of Directive 2009/73. According to it, the principle of solidarity between the Member States set out in Article 194(1) TFEU, first, is addressed to the legislature and not to the administration applying the legislation and, second, concerns only situations of crisis in the supply or functioning of the internal gas market, whereas Directive 2009/73 lays down principles relating to the normal functioning of that market. In any event, the criterion of enhancement of security of supply, set out in Article 36(1) of that directive, which it examined in the contested decision, may be regarded as taking into account the notion of energy solidarity. Finally, the Commission observes that the Nord Stream 1 pipeline is a project that is recognised as being in the common interest as it constitutes the realisation of a priority project of European interest provided for by Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September 2006 laying down guidelines for trans-European energy networks and repealing Decision 96/391/EC and Decision No 1229/2003/EC (OJ 2006 L 262, p. 1), and that the fact that the contested decision could enable the increased use of such an infrastructure is consistent with the common and European interests.66In addition, the Commission disputes that the variation of the regime under which the OPAL pipeline operated, which was approved by the contested decision, could detrimentally affect the security of supply of natural gas in central and eastern Europe in general or in Poland in particular. (1) The scope of the principle of energy solidarity 67Article 194(1) TFEU is worded as follows:‘In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:ensure the functioning of the energy market;ensure security of energy supply in the Union;promote energy efficiency and energy saving and the development of new and renewable forms of energy; andpromote the interconnection of energy networks.’68That provision, introduced by the Treaty of Lisbon, inserted into the TFEU an express legal basis for the European Union policy on energy which previously rested on the basis, inter alia, of ex-article 95 EC on the completion of the internal market (now Article 114 TFEU).69The ‘spirit of solidarity’ referred to in Article 194(1) TFEU is the specific expression in this field of the general principle of solidarity between the Member States, mentioned, inter alia, in Article 2 TEU, in Article 3(3) TEU, Article 24(2) and (3) TEU, Article 122(1) TFEU and Article 222 TFEU. That principle is at the basis of the whole Union system in accordance with the undertaking provided for in Article 4(3) TEU (see, to that effect, judgment of 10 December 1969, Commission v France, 6/69 and 11/69, not published, EU:C:1969:68, paragraph 16).70As regards its content, it should be emphasised that the principle of solidarity entails rights and obligations both for the European Union and for the Member States. On the one hand, the European Union is bound by an obligation of solidarity towards the Member States and, on the other hand, the Member States are bound by an obligation of solidarity between themselves and with regard to the common interest of the European Union and the policies pursued by it.71In the context of energy policy, that implies, inter alia, obligations of mutual assistance in the event that, following for example natural disasters or acts of terrorism, a Member State is in a critical or emergency situation as regards its gas supply. However, contrary to what the Commission asserts, the principle of energy solidarity cannot be restricted to such extraordinary situations which would exclusively involve the competence of the EU legislature — a competence implemented by secondary law, by the adoption of Regulation No 994/2010 (replaced by Regulation (EU) 2017/1938 of the European Parliament and of the Council of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing Regulation No 994/2010 (OJ 2017 L 280, p. 1)).72On the contrary, the principle of solidarity also entails a general obligation on the part of the European Union and the Member States, in the exercise of their respective competences, to take into account the interests of the other stakeholders.73As regards, more specifically, the energy policy of the European Union, that policy requires the European Union and the Member States to endeavour, in the exercise of their powers in the field of energy policy, to avoid adopting measures liable to affect the interests of the European Union and the other Member States, as regards security of supply, its economic and political viability, the diversification of supply or of sources of supply, and to do so in order to take account of their interdependence and de facto solidarity.74In the context of Article 36(1) of Directive 2009/73, those considerations are shown, inter alia, in the concepts of ‘effective functioning of the internal market in natural gas’ and the ‘efficient functioning of the regulated system to which the infrastructure is connected’ set out in point (e) of that provision, without however being restricted to those concepts.75In that regard, as the EU legislature recalled in the fourth recital of Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39), the European Council of 4 February 2011 underlined the need to modernise and expand Europe’s energy infrastructure and to interconnect networks across borders, in order to make solidarity between Member States operational, to provide for alternative supply or transit routes and sources of energy and to develop renewable energy sources in competition with traditional sources. It insisted that no Member State should remain isolated from the European gas and electricity networks after 2015 or see its energy security jeopardised by lack of the appropriate connections.76Therefore it is necessary to reject the argument advanced by the Commission at the hearing that, in essence, on the assumption that Article 36(1) of Directive 2009/73 implements the principle of solidarity set out in Article 194(1) TFEU, the Commission had duly taken that principle into account by the mere fact of having examined the criteria laid down in Article 36(1) of Directive 2009/73.77The application of the principle of energy solidarity does not however mean that EU energy policy must never, under any circumstances, have negative impacts for the particular interests of a Member State in the field of energy. However, the EU institutions and the Member States are obliged to take into account, in the context of the implementation of that policy, the interests of both the European Union and the various Member States and to balance those interests where there is a conflict.78Having regard to the scope of the principle of solidarity, the Commission was required, in the context of the contested decision, to assess whether the variation to the regime governing the operation of the OPAL pipeline, as proposed by the German regulatory authority, could affect the interests in the field of energy of other Member States and, if so, to balance those interests with the interests that that variation had for the Federal Republic of Germany and, if relevant, the European Union. (2) Consideration of whether the contested decision infringes the principle of energy solidarity 79It is clear that the examination referred to in paragraph 78 above was lacking in the contested decision. The principle of energy solidarity was not only not mentioned in the contested decision, but also the decision itself does not disclose that the Commission did, as a matter of fact, carry out an examination of that principle.80It is true that in paragraph 4.2 of the contested decision (recitals 48 to 53), the Commission made observations on the criterion of the enhancement of security of supply. Thus, after a reference to the examination of that criterion conducted in the context of the original decision, in which it had concluded that that criterion was satisfied, the Commission found that the proposal that had been submitted to it by the BNetzA did not alter that conclusion.81However, first, it should be observed that both the examination in the original decision and the supplementary examination in the contested decision concerned only the effect that the putting into service and the increase in capacity actually used of the OPAL pipeline had on the security of supply to the European Union in general. Thus, the Commission set out inter alia, in point 4.2 of the contested decision, first, that the availability of additional transmission capacities on the German-Czech border benefited all regions accessible from that location via existing or future infrastructure and, second, that the additional capacity did not allow for the full substitution of the other transport routes. On the other hand, the Commission did not, inter alia, carry out an examination of the impact of the variation of the regime governing the operation of the OPAL pipeline on the security of supply in Poland.82Secondly, it must be observed that the wider aspects of the principle of energy solidarity were not addressed in the contested decision. In particular, it does not appear that the Commission examined what the medium term consequences, inter alia for the energy policy of the Republic of Poland, might be of the transfer to the Nord Stream 1/OPAL transit route of part of the volumes of natural gas previously transported via the Yamal and Braterstwo pipelines, or that it balanced those effects against the increased security of supply that it had found at EU level.83Accordingly, it must be held that the contested decision was adopted in breach of the principle of energy solidarity, as provided for in Article 194(1) TFEU.84Consequently, the first plea in law advanced by the Republic of Poland, to the extent that it is based on the breach of that principle, must be upheld.85In the light of the foregoing the action must be upheld and the contested decision must be annulled. 2. The other pleas in law 86Since the contested decision must be annulled on the basis of the first plea in law, it is no longer necessary for the Court to rule on the other pleas relied on by the Republic of Poland. V. Costs 87Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Republic of Poland.88Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. Consequently, the Republic of Latvia, the Republic of Lithuania and the Federal Republic of Germany are to bear their own costs.On those grounds,THE GENERAL COURT (First Chamber, Extended Composition)hereby: 1. Annuls Commission Decision C(2016) 6950 final of 28 October 2016 on the review of the conditions for exemption of the OPAL pipeline, granted under Directive 2003/55/EC, from the rules on third party access and tariff regulation; 2. Orders the European Commission to bear its own costs and those incurred by the Republic of Poland; 3. Orders the Federal Republic of Germany, the Republic of Latvia and the Republic of Lithuania to bear their own costs. PelikánováValančiusNihoulSvenningsenÖbergDelivered in open court in Luxembourg on 10 September 2019.[Signatures]Table of contentsI. Legal frameworkII. Background to the disputeIII. Procedure and forms of order soughtIV. LawA. On the admissibility of the written submission of the Republic of Poland of 13 March 2017B. Substance1. The first plea in law, alleging the infringement of Article 36(1)(a) of Directive 2009/73, read in conjunction with Article 194(1)(b) TFEU and the principle of solidarity(a) The alleged infringement of Article 36(1)(a) of Directive 2009/73(b) The alleged infringement of Article 194(1) TFEU(1) The scope of the principle of energy solidarity(2) Consideration of whether the contested decision infringes the principle of energy solidarity2. The other pleas in lawV. Costs( *1 ) Language of the case: Polish. | 24039-6728eca-4d5d | EN |
Italy has failed to comply with its obligation to implement measures to prevent the spread of the Xylella fastidiosa bacterium, which can cause the death of a large number of plants, in particular olive trees | 5 September 2019 ( *1 )(Failure of a Member State to fulfil obligations – Protection of plant health – Directive 2000/29/EC – Protection against the introduction into and the spread within the European Union of organisms harmful to plants or plant products – Article 16(1) and (3) – Implementing Decision (EU) 2015/789 – Measures to prevent the introduction into and the spread within the European Union of Xylella fastidiosa (Wells et al.) – Article 7(2)(c) – Containment measures – Obligation to remove immediately infected plants in a 20 km strip in the infected zone – Article 7(7) – Obligation to monitor – Annual surveys – Article 6(2), (7) and (9) – Eradication measures – Persistent and general failure to fulfil obligations – Article 4(3) TEU – Obligation of sincere cooperation)In Case C‑443/18,ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 4 July 2018, European Commission, represented by B. Eggers and D. Bianchi, acting as Agents,applicant,v Italian Republic, represented by G. Palmieri, acting as Agent, assisted S. Fiorentino and G. Caselli, avvocati dello Stato,defendant,THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, C. Lycourgos, E. Juhász, M. Ilešič and I. Jarukaitis, Judges,Advocate General: Y. Bot,Registrar: A. Calot Escobar,having regard to the written procedure,having regard to the decision taken by the President of the Court, at the request of the European Commission, that the case is to be given priority over others, in accordance with Article 53(3) of the Court’s Rules of Procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1By its application, the European Commission asks the Court to find that the Italian Republic,–by failing to ensure, in the containment area, the immediate removal of at least all plants which have been found to be infected by Xylella fastidiosa (‘Xf’) if they are situated in the infected zone, within a distance of 20 kilometres from the border of that infected zone with the rest of the territory of the European Union, has failed to fulfil its obligations under Article 7(2)(c) of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ 2015 L 125, p. 36), as amended by Commission Implementing Decision (EU) 2016/764 of 12 May 2016 (OJ 2016 L 126, p. 77) (‘amended Implementing Decision 2015/789’);by failing to ensure, in the containment area, the monitoring of the presence of Xf by annual surveys at appropriate times of the year, has failed to fulfil its obligations under Article 7(7) of Implementing Decision 2015/789; andmoreover, by continuously failing to take immediate measures to prevent the spread of Xf and, in so doing, by repeatedly infringing the specific obligations laid down in amended Implementing Decision 2015/789 concerning the respective infected zones, with the result that the bacterium was able to spread, has failed to fulfil its obligations under Article 6(2), (7) and (9), Article 7(2)(c) and Article 7(7) of amended Implementing Decision 2015/789, as well as the fundamental obligations referred to in Article 16(1) of Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 2000 L 169, p. 1), as amended by Commission Implementing Directive (EU) 2017/1279 of 14 July 2017 (‘Directive 2000/29’), and the obligation of sincere cooperation set out in Article 4(3) TEU. Legal context Directive 2000/29 2Under Article 16 of Directive 2000/29:‘1. Each Member State shall immediately notify in writing the Commission and the other Member States of the presence in its territory of any of the harmful organisms listed in Annex I, Part A, Section I …It shall take all necessary measures to eradicate [or,] if that is impossible, inhibit the spread of the harmful organisms concerned. It shall inform the Commission and the other Member States of the measures taken.…3. In cases referred to in paragraphs 1 and 2, the Commission shall examine the situation as soon as possible within the Standing Committee on Plant Health. On-site investigations may be made under the authority of the Commission and in accordance with the relevant provisions of Article 21. The necessary measures based on a pest risk analysis or a preliminary pest risk analysis in cases referred to in paragraph 2 may be adopted, including those whereby it may be decided whether measures taken by the Member States should be rescinded or amended, under the procedure laid down in Article 18(2). The Commission shall follow the development of the situation and, under the same procedure, shall amend or repeal, as that development requires, the said measures. ……’3Part A of Annex I to Directive 2000/29 lists the ‘harmful organisms whose introduction into, and spread within, all Member States shall be banned’. Under the heading ‘Harmful organisms known to occur in the Community and relevant for the entire Community’, Section II of Part A in paragraph (b), headed ‘Bacteria’, contains a point 3, which is worded ‘Xylella fastidiosa (Wells et al.)’. Implementing Decisions 2014/87/EU and 2014/497/EU 4Commission Implementing Decision 2014/87/EU of 13 February 2014 as regards measures to prevent the spread within the Union of Xylella fastidiosa (Well[s] and Raju) (OJ 2014 L 45, p. 29), which was adopted on the basis of Directive 2000/29, and, in particular, of the fourth sentence of Article 16(3) of that directive, states in recitals 2 to 4, and 7 and 8:‘(2)On 21 October 2013 Italy informed the other Member States and the Commission of the presence of [Xf (“the specified organism”)] in its territory, in two separate areas of the province [of] Lecce, in the region of Apulia. Subsequently two further separate outbreaks have been identified in the same province. The presence of the specified organism was confirmed in respect of several plant species, including Olea europaea L., …[,] showing leaf scorching and rapid decline symptoms. …(3)On 29 October 2013 the region [of] Apulia took emergency measures for the prevention and eradication of the specified organism …[,] in accordance with Article 16(1) of Directive 2000/29 …(4)Italy reported that the inspections it had carried out showed no presence of the specified organism in the neighbouring provinces of Brindisi and Taranto.(7)In view of the nature of the specified organism, it is likely to spread rapidly and widely. In order to ensure that the specified organism does not spread to the rest of the Union, it is necessary to take measures immediately. Until more specific information becomes available concerning host range, vectors, pathways and risk reduction options, it is appropriate to prohibit movement [of plants for planting] out of areas possibly containing infected plants.(8)Taking into consideration the locations of the presence of the specified organism, the particular geographical situation of the administrative province of Lecce and the uncertainties concerning the criteria for demarcation, that entire province should be the subject of that prohibition, in order to apply that prohibition rapidly and effectively.’5Under that first implementing decision, the Commission consequently prohibited, in Article 1, ‘the movement, out of the province of Lecce, [in the] region of Apulia, Italy, of plants for planting’, prescribed, in Article 2, the conduct of official annual surveys for the presence of the bacterium Xf and required Member States, in Article 3, to ensure that where any person becomes aware of the presence of that bacterium or has reason to suspect such a presence, that person is to notify the competent authority within ten days.6That implementing decision was repealed by Commission Implementing Decision 2014/497/EU of 23 July 2014 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Well[s] and Raju) (OJ 2014 L 219, p. 56).7Under that second implementing decision, which has the same legal basis as the first, the Commission restricted the movement of plants which are host plants of the bacterium Xf and established various conditions for their introduction into the European Union where they originate in third countries where that bacterium is known to be present (Articles 2 and 3). Moreover, in order to eradicate the bacterium Xf and to prevent its spread, the Commission, where necessary, imposed ‘demarcated areas’ on Member States, consisting of an ‘infected zone’ and a ‘buffer zone’, in which Member States were required, in particular, to remove all plants infected by the bacterium Xf, as well as all plants showing symptoms indicating possible infection by that bacterium and all plants which had been identified as likely to be infected (Article 7 and Annex III, Section 2(a)). Implementing Decision 2015/789 8Implementing Decision 2014/497 was repealed by Implementing Decision 2015/789, which was adopted on the same legal basis as the first two implementing decisions and contains the following recitals:‘(1)In view of the audits carried out by the Commission and notifications of new outbreaks by the Italian authorities[,] the measures provided for in [Implementing Decision 2014/87] should be strengthened.In order to eradicate the specified organism and prevent its further spread in the rest of the Union, Member States should establish demarcated areas consisting of an infected zone and a buffer zone, and apply eradication measures. …In the province of Lecce, the specified organism is already widely established. Where evidence shows that in certain parts of that area the specified organism has been present for more than 2 years and it is no longer possible to eradicate it, the responsible official body should have the possibility to apply containment measures, instead of eradication measures, to protect at least production sites, plants with particular cultural, social or scientific value, as well as the border with the rest of the Union territory. The containment measures should aim to minimise the amount of bacterial inoculum in that area and keep the vector population at the lowest level possible.In order to ensure effective protection of the rest of the Union territory from the specified organism, taking into account the possible spread of the specified organism by natural and human assisted means other than the movement of the specified plants for planting, it is appropriate to establish a surveillance zone immediately outside the buffer zone surrounding the infected zone of the province of Lecce.9Implementing Decision 2015/789 was amended by Commission Implementing Decision (EU) 2015/2417 of 17 December 2015 (OJ 2015 L 333, p. 43), and subsequently by Implementing Decision 2016/764, recitals 1 to 4 of which are worded as follows:Since the adoption of [Implementing Decision 2015/789], and until February 2016, several outbreaks of [Xf] (hereinafter “the specified organism”) in different parts of the area surrounding the province of Lecce have been notified by Italy to the Commission. Those outbreaks have taken place in many different municipalities located in the provinces of Taranto and Brindisi. Furthermore, the last audit carried out by the Commission in November 2015 confirmed that the survey activities required by Implementing Decision [2015/789] were conducted only to a very limited extent in the area surrounding the province of Lecce (Apulia region, Italy). That audit also confirmed that the current programme of surveys still does not ensure the timely detection of new outbreaks or the accurate determination of the true extent of the spread of the specified organism in the area.(2)The last audit confirmed the risk of a rapid spread of the specified organism in the rest of the area concerned. For this reason, and given the size of that area, it is appropriate to expand the infected zone where containment measures may apply beyond the borders of the province of Lecce, and allow the move[ment] of specified plants out of that area only under very strict conditions. Such expansion should take place without delay taking into account that the risk of further spreading of the specified organism in the rest of the Union territory increases with the start of the flight season of the insect vectors in early spring. The infected zone should therefore be extended to cover those municipalities, or parts of certain municipalities, of the provinces of Brindisi and Taranto where outbreaks of the specified organism have taken place or where it is likely that that organism is already [wide]spread and established. That infected zone, however, should not include the area that has been declared by Italy as free from the specified organism before the adoption of this Decision.For purposes of legal certainty, the wording of [Article 7(2)(c)] should be amended to make clear that the measures to be taken in accordance with that Article apply in the infected zone and not outside of it.In order to ensure effective protection of the rest of the Union territory from the specified organism, and in view of the enlargement of the containment area, it is appropriate to replace the surveillance zone with new requirements for surveys in that containment area. Those requirements should apply to an area of a width of 20 km from the borders of the buffer zone and extending into that containment area, and within the surrounding buffer zone of 10 km.’10Article 1 of amended Implementing Decision 2015/789, headed ‘Definitions’, provides:‘For the purposes of this Decision, the following definitions shall apply:(a)“specified organism” means any subspecies of [Xf];(b)“host plants” means plants for planting, other than seeds, belonging to the genera and species listed in the Commission database of host plants susceptible to [Xf] in the Union territory, as having been found to be susceptible in the Union territory to the specified organism or, where a Member State has demarcated an area with regard to only one or more subspecies of the specified organism pursuant to the second subparagraph of Article 4(1), as having been found to be susceptible to that or those subspecies;(c)“specified plants” means host plants and all plants for planting …;11Article 4 of amended Implementing Decision 2015/789, headed ‘Establishment of demarcated areas’, provides:‘1. Where the presence of the specified organism is confirmed, the Member State concerned shall without delay demarcate an area in accordance with paragraph 2, hereinafter “demarcated area”.2. The demarcated area shall consist of an infected zone and a buffer zone.The infected zone shall include all plants known to be infected by the specified organism, all plants showing symptoms indicating possible infection by that organism, and all other plants liable to be infected by that organism due to their close proximity to infected plants, or common source of production, if known, with infected plants, or plants grown from them.As regards the presence of the specified organism in the province of Lecce, and in the municipalities listed in Annex II, the infected zone shall at least include that province and those municipalities or[,] as applicable, the land registry plots (“Fogli”) of those municipalities.The buffer zone shall be of a width of at least 10 km, surrounding the infected zone.12Article 6 of amended Implementing Decision 2015/789, headed ‘Eradication measures’, is worded as follows:‘1. The Member State having established the demarcated area referred to in Article 4 shall take in that area the measures as set out in paragraphs 2 to 11.2. The Member State concerned shall, within a radius of 100 m around the plants which have been tested and found to be infected by the specified organism, immediately remove:host plants, regardless of their health status;plants known to be infected by the specified organism;plants showing symptoms indicating possible infection by that organism or suspected to be infected by that organism.7. The Member State concerned shall monitor the presence of the specified organism by annual surveys at appropriate times. It shall carry out visual inspections of the specified plants and sample and test symptomatic plants, as well as asymptomatic plants in the proximity of the symptomatic ones.In buffer zones, the surveyed area shall be based on a grid split into 100 m x 100 m squares. Visual inspections shall take place in each of those squares.9. The Member State concerned shall, where necessary, take measures addressing any particularity or complication that could reasonably be expected to prevent, hinder or delay eradication, in particular those related to the accessibility and adequate destruction of all plants that are infected or suspected of infection, irrespective of their location, public or private ownership or the person or entity responsible for them.13Under Article 7 of amended Implementing Decision 2015/789, headed ‘Containment measures’:‘1. By way of derogation from Article 6, only in the infected zone referred to in the third subparagraph of Article 4(2), the responsible official body of the Member State concerned may decide to apply the containment measures set out in paragraphs 2 to 7 …2. The Member State concerned shall immediately remove at least all plants which have been found to be infected by the specified organism if they are situated in any of the following locations:a location within the infected zone referred to in the third subparagraph of Article 4(2), situated within a distance of 20 km from the border of that infected zone with the rest of the Union territory.7. The Member State concerned shall monitor the presence of the specified organism by annual surveys at appropriate times during the year in the areas situated within the distance of 20 km as referred to in [paragraph 2(c)].14Annex II to amended Implementing Decision 2015/789, which contains the list of municipalities referred to in Article 4(2) of that decision, includes municipalities located in the provinces of Brindisi and Taranto. Pre-litigation procedure 15On 11 December 2015, in view of the spread of the bacterium Xf in the region of Apulia and the continual deterioration of the situation since October 2013, the Commission sent the Italian authorities a letter of formal notice, claiming that they had, on one hand, failed to remove infected plants and those subject to specific obligations, in accordance with Article 6(2) and Article 7(2)(c) of Implementing Decision 2015/789, and, on the other, failed to comply with the obligation to conduct surveys, in accordance with Articles 6(7) and 8(2) of that implementing decision.16On 10 February 2016, the Italian authorities replied to that letter of formal notice by emphasising, in particular, that the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy) had adopted suspensive measures and, on 22 January 2016, had referred to the Court a request for a preliminary ruling, under Article 267 TFEU, concerning the validity of Article 6(2)(a) of Implementing Decision 2015/789, which relates to the obligation to cut down plants within a radius of 100 m around the infected plants. The Italian authorities indicated that, on account of those judicial developments, the cutting down of trees had been significantly delayed and that the implementation of part of Implementing Decision 2015/789 had become legally impossible.17On 25 July 2016, as Implementing Decision 2016/764 had altered the geographic scope of the complaints raised in the letter of formal notice of 11 December 2015, the Commission sent the Italian authorities a further letter of formal notice, in which it noted the continual and persistent failure by the Italian Republic to fulfil its specific obligations under amended Implementing Decision 2015/789 and the general obligation referred to in Article 16(1) of Directive 2000/29. The Commission argued, moreover, that the Italian Republic was in breach of the principle of sincere cooperation laid down in Article 4(3) TEU. In addition, that letter of formal notice referred, in particular, to the failure to immediately remove infected plants, and deficiencies with regard to the conducting of surveys.18On 26 August 2016, the Italian authorities, in reply to the further letter of formal notice, stated that the judicial obstacles to the implementation of the monitoring and the removal measures provided for by amended Implementing Decision 2015/789 had been removed and that those activities had recommenced or were about to be, and provided additional information concerning the implementation of the containment measures and the monitoring activities conducted in 2015 and 2016.19On 14 July 2017, the Commission issued a reasoned opinion, in which it alleged a number of failures on the part of the Italian Republic to comply with EU law. First, it alleged that the Italian Republic had failed, in breach of Article 7(2)(c) of amended Implementing Decision 2015/789, to immediately cut down infected plants in the containment area. Secondly, the Commission claimed that the Italian Republic had infringed Article 6(3), (7) and (9) and Article 7(2), (3) and (7) of amended Implementing Decision 2015/789, on the grounds that that Member State had failed to fulfil its obligation to ensure, both in the containment area and in the buffer zone, that samples were taken within a radius of 100 m around the infected plants and that the presence of Xf was monitored by means of annual surveys carried out at appropriate times. Thirdly, the Commission argued that the Italian Republic had continually and generally failed to fulfil the obligation to adopt the necessary measures to prevent the spread of Xf, in breach of Article 16(1) of Directive 2000/29, and of Articles 6(2) and 7(2) of amended Implementing Decision 2015/789. Fourthly, it alleged that that Member State had failed to have regard to the obligation of sincere cooperation, provided for in Article 4(3) TEU, on account of various omissions as a result of which that Member State had been unable to prevent the spread of the disease over more than 40 km by as early as 2015.20On 14 September 2017, the Italian authorities replied to that reasoned opinion. Whilst acknowledging the seriousness of the situation, and their obligation to immediately remove plants, those authorities emphasised, in particular, the fact that there had been considerable improvement in the cutting down of plants as a result of new procedures adopted at regional level.21Since it took the view that, by May 2018, the Italian Republic had not complied with the request for immediate action set out in the reasoned opinion with a view to preventing the spread of Xf and that, on account of the ongoing nature of the failures listed, the harmful organism had spread significantly in the containment area and the buffer zone, the Commission brought the present action. The action First complaint, alleging infringement of Article 7(2)(c) of amended Implementing Decision 2015/789 Arguments of the parties 22By its first complaint, the Commission claims that the Italian Republic failed to comply with the obligation to immediately remove infected plants laid down in Article 7(2)(c) of amended Implementing Decision 2015/789 by leaving numerous plants in place for several months, and even sometimes more than a year, after the infection had been detected and during the flight season of the insect vectors. The period of time that elapses between the detection of the disease and the time when the infected plants are in fact cut down should be just a few days and, in any event, not exceed ten working days, according to the circumstances.23In this case, at the expiry of the time limit set by the reasoned opinion, namely 14 September 2017, the Italian authorities had cut down only 78% of the infected plants identified during the monitoring exercise relating to 2016 and there still remained, at that date, 191 trees to be removed. Moreover, analysis of the information provided by those authorities highlights considerable delays between the identification of infected plants and the issue and notification of an order to cut them down, namely around eight weeks. The need to identify the owners and notify them of the cutting-down measure is one of the principal reasons for the delay. Where such identification is not possible, there is no notification of the measure and the authorities cannot therefore cut down the plants. In addition, if the owner objects to the measure, the Italian authorities cannot ensure the immediate removal of the infected plants.24The obligation to immediately remove such plants does, however, require the competent authorities to act without delay. In that regard, experience acquired in Italy and other Member States in which the presence of the bacterium Xf has been detected shows that it is possible to remove an infected tree in less than a week. By contrast, where the time that elapses between the detection of the bacterium and the cutting down of infected plants is significantly more than that, the bacterium will continue to spread. Since the majority of insect vectors can travel a distance of up to 100 m in the space of 12 days, it is crucial to act immediately. That is all the more so in the case of containment measures in the part of the infected zone referred to in Article 7(2)(c) of amended Implementing Decision 2015/789, in which the removal obligation relates solely to infected plants.25Reducing to a minimum the period of time between the detection of infected plants and their removal therefore constitutes the only means of preventing the spread of the harmful organism within the rest of the European Union. Member States have an obligation as to the result to be achieved in that regard. As it is directly applicable, amended Implementing Decision 2015/789 does not leave the Member State any discretion as to its implementation. The obligation to remove infected plants cannot therefore be interpreted as meaning that it is limited to making provision for measures for the removal of plants, and not the implementation of those measures.26In the judgment of 9 June 2016, Pesce and Others (C‑78/16 and C‑79/16, EU:C:2016:428), the Court confirmed that the Commission was entitled to take the view that the obligation to remove infected plants immediately was an appropriate and necessary measure to prevent the spread of the bacterium Xf. It also acknowledged that the Commission had weighed up the various interests at stake. That applies a fortiori to the measure referred to in Article 7(2)(c) of amended Implementing Decision 2015/789, under which only infected trees must be removed. Moreover, quickly removing infected plants before the start of the flight season of the insect vectors is even more crucially important in view of the continual and permanent delay observed in relation to annual surveys.27The legal and practical problems cited by the Italian Republic, arising from identifying the owners of the land and from the actions brought by some of those owners, cannot justify the fact that infected trees were not removed until several months after the infection was detected. That Member State can rely still less on general national provisions, irrespective of whether they were adopted pursuant to other provisions of EU law. The Commission does not mean to object to the appropriate involvement of the owners and the exercise of their rights and remedies. However, in accordance with Article 6(9) of amended Implementing Decision 2015/789, the obligation as to the result to be achieved in relation to the cutting down of trees requires the Italian Republic to adopt all the necessary measures to be able to act immediately as soon as an infected tree is detected. Thus, in 2015, the Italian authorities used national emergency measures to tackle the first outbreak.28The Italian Republic maintains that the term ‘immediately’ used in Article 7(2) of amended Implementing Decision 2015/789 must be understood in the light of the content of the obligation itself and the legal conditions which govern it.29As the adoption of a measure such as the removal of infected plants has a significant impact on the individual right to property, it is essential to identify the owner in advance and to notify him or her of the measure. However, in the present case, in the light of the region of Apulia’s particular system of ownership and management of agricultural land, it was very difficult to identify the owners since, in a significant number of cases, they are deceased or live outside the region of Apulia, which delayed the notifications. Moreover, a considerable number of very large olive trees were involved.30Moreover, the order of 18 December 2015 of the Procura della Repubblica di Lecce (Public Prosecutor, Lecce, Italy), who issued an emergency attachment order in respect of all the olive trees which should have been cut down, made it legally impossible to implement the measures between 28 December 2015, the date on which that order was confirmed by the Giudice delle indagini preliminari presso il Tribunale di Lecce (judge responsible for preliminary investigations at the District Court, Lecce, Italy), and 25 July 2016, the date on which the order was lifted.31The adoption of the removal measures at issue was also the subject of strong objections, fuelled by the lack of sufficient certainty, during the period of application of those measures, as to the link between the phenomenon of the desiccation of olive trees and the bacterium Xf. That uncertainty was dispelled only by the scientific opinion of the European Food Safety Authority (EFSA) of 31 March 2016. There is still, however, at national level, a campaign of misinformation suggesting that infected plants must be not cut down, but treated.32In addition, according to the Italian Republic, it is wrong to consider that amended Implementing Decision 2015/789 lays down an obligation on the part of Member States as to the result to be achieved, consisting of ensuring that infected trees are cut down within a very limited timeframe after it has been established that they are infected. The wording of Article 7(2) of amended Implementing Decision 2015/789 refers to an action, namely to ‘remove’, and not to the result of that action. In the absence of such an obligation as to the result to be achieved, establishing whether a Member State has failed to fulfil its obligations requires, as is apparent from paragraphs 107 and 108 of the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), a case-by-case analysis of whether the Member State has acted with all due diligence, irrespective of whether the aim of the rules has been achieved. In this case, the complex operation of regulating, organising and managing resources carried out by the Italian Republic in connection with the adoption and implementation of the measures in question demonstrates that it complied with its obligations under amended Implementing Decision 2015/789. Findings of the Court 33Under Article 7(2)(c) of amended Implementing Decision 2015/789, the Member State concerned was obliged, in what is known as the ‘containment’ area, corresponding to the part of the infected zone including the province of Lecce and the municipalities listed in Annex II to that decision, all located in the provinces of Brindisi and Taranto, to ‘immediately’ remove, by way of containment measure, at least all plants which have been found to be infected by the specified organism, namely the bacterium Xf, if they were situated in a location within that zone situated within a distance of 20 km from the border of that zone with the rest of the EU territory (‘the 20 km strip of the containment area’).34According to Court’s the settled case-law, the existence of a failure to fulfil obligations must be assessed by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, so that subsequent changes cannot be taken into account by the Court (see, in particular, judgment of 21 March 2019, Commission v Italy, C‑498/17, EU:C:2019:243, paragraph 29 and the case-law cited).35In this case, the period laid down in the reasoned opinion expired on 14 September 2017.36The Italian Republic does not dispute that, at that date, of a total of 886 infected plants identified during the survey carried out by way of the monitoring exercise relating to 2016, a significant proportion of those plants, namely 191, representing nearly 22% of the total number of infected plants, had not yet been removed in the 20 km strip of the containment area.37Moreover, neither does that Member State dispute that, where infected plants were removed in that 20 km strip, that was not carried out until after a period of several months had passed following the finding that those plants were infected.38However, the wording of Article 7(2) of amended Implementing Decision 2015/789 is drafted, in that regard, in terms which do not leave room for any reasonable doubt. The term ‘immediately’, used in that provision, cannot, in view of its usual meaning in everyday language, be reconciled with a period of several weeks or even, as in this case, of several months.39That interpretation is all the more compelling given that, according to the EFSA’s opinions of 6 January 2015 and 17 March 2016, the findings of which were not disputed on that point, only the rapid removal of infected plants is capable of preventing the spread of the bacterium Xf. As is apparent from the scientific data provided by the Commission in support of its action, which were not called into question by the Italian Republic, the insect vector, in this case the leafhopper, travels nearly 100 m in the space of only 12 days.40Thus, the audit report drawn up by the Commission for 2018 (Final report of an audit carried out in Italy from 28 May 2018 to 1 June 2018 in order to evaluate the situation and official controls for Xylella fastidiosa, DG (SANTE) 2018-6485, pp. 23-24) (‘the 2018 audit report’) explicitly mentions that over 90% of the positive cases of infection identified during the monitoring exercise relating to 2016, which was brought to a close in May 2017, were discovered near plants identified as infected in 2015, the removal of which was significantly delayed.41Contrary to what the Italian Republic argues, the requirement of immediacy imposed in Article 7(2) of amended Implementing Decision 2015/789 cannot be interpreted as relating solely to the adoption of measures by national authorities with a view to having such removal carried out.42It follows both from the wording of that provision, which clearly requires the Member State to ‘remove’ infected plants, and from the need for it to be effective that that requirement can relate only to the removal itself, since only the actual removal of infected plants, and not the adoption of measures requiring it, is capable of preventing the spread of the bacterium Xf, which, as is apparent, in particular, from recitals 4, 7 and 8 of Implementing Decision 2015/789 and recitals 1, 2 and 4 of Implementing Decision 2015/2417, is the objective pursued by amended Implementing Decision 2015/789 and, in particular, by the containment measures (see, by analogy, judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 54).43Such removal is thus capable of achieving the aim pursued by Directive 2000/29, on the basis of which amended Implementing Decision 2015/789 was adopted, which is to ensure a high level of phytosanitary protection against the bringing into the European Union of harmful organisms in produce imported from non-member countries (see, to that effect, judgment of 30 September 2003, Anastasiou and Others, C‑140/02, EU:C:2003:520, paragraph 45).44It follows that Article 7(2) of amended Implementing Decision 2015/789 imposes on Member States a precise obligation as to the result to be achieved relating to the removal of plants infected by the bacterium Xf and that an objective finding that that obligation has been infringed is sufficient, by itself, to demonstrate that a Member State has failed to fulfil its obligations. The situation at issue in the present case is not therefore comparable to the situation examined by the Court in paragraphs 107 and 108 of the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), cited by the Italian Republic.45With regard to the various practical, administrative and legal obstacles put forward by the Italian Republic in order to justify the delay in removing infected plants situated in the 20 km strip of the containment area, as a result of the high number of very large olive trees, the obligation, under national law, to identify the owners of the land concerned and notify them of the removal measures, and the legal actions brought with a view to preventing the cutting down of plants, it should be recalled that, according to the Court’s settled case-law, a Member State may not plead situations in its internal legal order in order to justify a failure to comply with obligations and time limits arising under EU law (see, in particular, judgment of 21 March 2019, Commission v Italy, C‑498/17, EU:C:2019:243, paragraph 35 and the case-law cited).46Moreover, the Italian Republic did not dispute that it would have been free, as the Commission argued, to adopt national emergency measures providing, like those adopted in 2015, for more rapid procedures in order to overcome such administrative and legal obstacles.47In addition, whilst it is true that the attachment order issued, in the context of criminal proceedings, by the Procura della Repubblica di Lecce (Public Prosecutor, Lecce) and approved by the Giudice delle indagini preliminari presso il Tribunale di Lecce (judge responsible for preliminary investigations at the District Court, Lecce), was likely to prevent the removal of infected olive trees throughout the area concerned in the first part of 2016, it must, however, be found, as the Commission argued without being properly challenged by the Italian Government, that the Italian authorities, following the lifting of that order, failed to adopt the immediate measures required in Article 7(2)(c) of amended Implementing Decision 2015/789.48Consequently, the first complaint must be upheld. Second complaint, alleging infringement of Article 7(7) of amended Implementing Decision 2015/789 49By its second complaint, the Commission claims that the Italian Republic failed to comply with the obligation to monitor the presence of the bacterium Xf in the 20 km strip of the containment area, in accordance with Article 7(7) of amended Implementing Decision 2015/789.50In this case, for 2016, the survey for the presence of the bacterium Xf began in August 2016 and ended in May 2017. As to the survey carried out by way of the monitoring exercise relating to 2017, it started in July 2017 and was completed in April 2018. Those surveys were thus partly conducted at times of the year which were not favourable to the detection of symptoms of an infection on deciduous plants and trees, namely during the winter months, when deciduous trees and herbaceous plants no longer had leaves. Consequently, the effectiveness of visual inspections, as a means of detecting suspected cases of infection, was compromised.51The obligation to carry out an annual survey ‘at appropriate times during the year’ within the meaning of Article 7(7) of amended Implementing Decision 2015/789, requires, in accordance with the aim of that implementing decision and of Directive 2000/29, which is to prevent the spread of the disease, that that survey be carried out during a period of the year when that disease can be detected, namely, in the case of olive trees, during the summer period. Moreover, in view of the obligation to provide a report by 31 December and in order to allow infected plants to be removed before the beginning of spring, when the insect vector of the bacterium Xf starts to spread, the survey must be brought to a close before the end of the year.52Amended Implementing Decision 2015/789 therefore obliges Member States to complete their annual monitoring campaign in such a way as to be able to submit a report and a new action plan for the following year before the end of December. That implementing decision thus clearly indicates that the monitoring must be conducted at the time which is not only the most appropriate from a scientific perspective for identifying infected trees, but which also ensures that trees can be cut down immediately and with certainty before the following flight season begins.53The Italian Republic argues that the start of monitoring in August 2016 coincided with the period regarded as optimal for the majority of Xf hosts, namely the period when the typical symptoms of leaf scorching appear on leaves which have reached maturity.54In addition, the infections caused by Xf vary in their symptoms and severity according to the hosts and the subspecies of the bacterium. Thus, in the case of the olive tree, the damage caused by the infection appears not in the form of the typical symptoms of scorching of leaves which have reached maturity at the end of the summer season, but principally in the form of a typical desiccation of branches affecting a greater or lesser number of branches.55Evidence gathered in the field indicates that symptoms can appear throughout the year. That is also apparent from the Commission’s Directorate-General for Health and Food Safety’s Guidelines for the survey of Xf in the Union territory of 16 December 2015, published on its website. In addition, infections arising during the summer season can be detected on olive tree from the third month following transmission. It is therefore possible to pick up early, during the winter period, infections which were at the initial stage and occurred during the preceding summer season.56Under Article 7(7) of amended Implementing Decision 2015/789, the Member State concerned was obliged to monitor the presence of the specified organism by annual surveys ‘at appropriate times during the year’ in the 20 km strip of the containment area.57Whilst that provision does not require, according to its wording, that the annual surveys in question take place at a set time of the year, thus leaving the competent national authorities a margin of discretion in that regard, the fact remains that, according to that wording, those annual surveys must be conducted at an ‘appropriate’ time.58In the light of the objective pursued by amended Implementing Decision 2015/789, and, in particular, by the containment measures referred to in Article 7(2)(c) thereof, which, as is apparent from paragraph 42 above, is to prevent the spread of the bacterium Xf, those surveys must be carried out at a time of the year which makes it possible both to detect the infection of plants and to implement the containment measures in respect of that infection, consisting, under that provision, in immediately removing infected plants.59In this case, it is not disputed that the survey carried out by way of the monitoring exercise relating to 2016 in order to determine the presence of the bacterium Xf in the 20 km strip of the containment area was initiated in August 2016 and ended in May 2017.60It is clear that, as the Commission rightly argues, such a survey, brought to a close in spring, which corresponds to the flight season of the insect vector and, which is not disputed, to the period when the spread of the bacterium Xf resumes, in practice makes it impossible for the competent national authorities to effectively implement the containment measures in the 20 km strip of the containment area by removing infected plants before the beginning of that period of spread.61Consequently, even assuming, as the Italian Republic argues, that the bacterium Xf can be detected throughout the year, which the Commission disputes, the fact remains that the annual survey provided for in Article 7(7) of amended Implementing Decision 2015/789 should be finished at a sufficiently early time of the year, before the beginning of spring, in order to allow, in accordance with the requirement laid down in Article 7(2)(c) thereof, the timely removal of infected plants.62Consequently, the second complaint must be upheld. Third complaint, alleging persistent and general failure to comply with the obligation to adopt the necessary measures to prevent the spread of the bacterium Xf 63By its third complaint, the Commission claims that the Italian Republic has persistently and generally failed to comply with the obligation to prevent the spread of Xf, that failure taking the form of repeated and distinct infringements of the measures laid down by amended Implementing Decision 2015/789. That failure infringes not only the obligations arising under Article 6(2), (7) and (9), Article 7(2)(c) and Article 7(7) of that implementing decision, but also the fundamental obligation set out in Article 16(1) of Directive 2000/29 and the obligation of sincere cooperation referred to in Article 4(3) TEU.64A Member State can be found to have generally and persistently failed to fulfil its obligations not only where it fails to comply with its obligations under EU law relating to specific situations which have been remedied before the infringement proceedings are sufficiently advanced, but also, and a fortiori, where, as in the present case, as the Member State concerned failed to remedy earlier failures to fulfil its obligations, those failures have led to the spread of a bacterium and, consequently, made it necessary to amend the measures adopted by the Commission with regard to the specific areas subject to eradication and containment obligations.65Thus, in this case, finding that the Member State concerned has failed to fulfil only the specific obligations arising under the implementing decision applicable to the areas concerned at a given time is tantamount, for the Commission, to attempting to hit a moving target. The Commission’s goal is to eradicate the bacterium Xf or, at least, to prevent the spread of that bacterium outside the zone currently infected. Consequently, the fundamental obligation to remove infected plants remains the same over time, even if it has to apply to different areas under successive implementing decisions. Moreover, the adoption of such a decision does not exempt Member States from their fundamental obligation, arising under Article 16(1) of Directive 2000/29, to adopt all necessary measures to prevent the spread of the bacterium Xf.66The fact that the Italian authorities persistently failed to immediately remove infected plants as soon as they were notified, in October 2013, of the first outbreak detected in the very south of the region of Apulia, little by little allowed the bacterium Xf to spread all along the ‘heel of the Italian boot’. That spread was exacerbated by the failure of the Italian authorities to fulfil their obligation to conduct annual surveys in a timely manner before the beginning of the flight season of the insect vector.67Thus, the data supplied by the Italian authorities in 2018 concerning the results of the survey conducted, late, in the containment area in respect of 2017 reveal the presence of several thousand infected trees and demonstrate, once again, considerable delays in cutting down infected trees during the flight period of the insect vector. In particular, those data, as they appear in the 2018 audit report, show that, during the flight season of the insect vector in 2018, there was still a large number of infected trees that had not been cut down, which contributed to the spread of the bacterium Xf. In that context, given that the containment area and the buffer zone required under amended Implementing Decision 2015/789 were no longer, performing their functions, those areas were twice moved northward. That movement demonstrates that the bacterium Xf spread from the province of Lecce throughout the territory of the provinces of Brindisi and Taranto.68The simple fact that the authorities of a Member State were not capable of taking the necessary measures to prevent a given situation from arising, such as the deterioration of the environment, is, by itself, proof of failure by that Member State to fulfil its obligations. Thus, the spread of the bacterium Xf throughout the region of Apulia and towards the rest of the continent between 2013 and 2018, without the Italian authorities having been able to prevent it, is sufficient to demonstrate that those authorities continually failed to adopt the necessary measures to prevent the spread of Xf, in breach of the rules to which the third complaint refers.69The Italian Republic maintains that the gradual spread of the infection over the territory of the region of Apulia, which is clearly undesirable from the point of view of amended Implementing Decision 2015/789, is not attributable to it alone and is not in itself capable of demonstrating a general and persistent failure on the part of that Member State to fulfil its obligations.70That spread is a natural phenomenon which, as such, is not automatically preventable through human action, but can only be controlled and slowed down. Whilst the activity of regulating, organising and managing the measures, carried out by the public authorities, is one of the things that must be done in order to limit the spread of the bacterium, it is not reasonable to assert that that activity must in itself prevent the undesirable spread of the infection. That spread is dependent precisely on factors which are also exogenous to the steps taken by the administrative authorities and, in any event, inherent in the very nature of infection affecting plant health.71By the present complaint, the Commission argues, in essence, that the very fact that the bacterium Xf has been spreading continuously in the region of Apulia since 2013 and the Italian Republic has therefore failed to achieve the result sought by amended Implementing Decision 2015/789 demonstrates that that Member State has generally and persistently failed to fulfil the obligation to adopt the necessary measures to prevent the spread of that bacterium.72The Commission infers from this that the Italian Republic has repeatedly infringed both the specific obligations laid down in Article 7(2)(c) and Article 7(7) of that implementing decision, which were the subject of the first two complaints, and those laid down in Article 6(2), (7) and (9) of that implementing decision. As a result, that Member State has also infringed the fundamental obligation set out in Article 16(1) of Directive 2000/29 and the obligation of sincere cooperation referred to in Article 4(3) TEU.73In that regard, it should be noted that it is clear from the Court’s settled case-law that the Commission may seek in parallel a finding that specific provisions of EU law have not been complied with by reason of the conduct of a Member State’s authorities with regard to particular specifically identified situations and a finding that those provisions have not been complied with because its authorities have adopted a general practice contrary to those provisions, which is illustrated in some cases by the particular situations (see, in particular, judgments of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraph 27, and of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 33).74An administrative practice can be the subject matter of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, in particular, judgments of 29 April 2004, Commission v Germany, C‑387/99, EU:C:2004:235, paragraph 42; of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraph 28; and of 26 April 2007, Commission v Italy, C‑135/05, EU:C:2007:250, paragraph 21).75According to the Court’s case-law, in so far as the action seeks a declaration that there has been a general failure on the part of the competent national authorities to fulfil obligations, the fact that the deficiencies identified in any particular case have been remedied does not necessarily mean that the general and continuous approach of those authorities, as evidenced by those specific deficiencies in some cases, has come to an end. In such a case, the production of additional evidence intended, at the stage of proceedings before the Court, to support the proposition that the failure thus alleged is general and consistent cannot therefore be ruled out in principle (see, in particular, judgments of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraphs 32 and 37; of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 42; and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraphs 47 and 48).76In particular, the subject matter of an action for allegedly persistent failure to fulfil obligations may extend to events which took place after the reasoned opinion, provided that they are of the same kind as the events to which the opinion referred and constitute the same conduct (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 43, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 49).77In addition, it should also be recalled that the Commission, as it argues in support of the present complaint, may ask the Court to find that, by not having achieved the result intended by an act of EU law, a Member State has failed to fulfil its obligations (see, to that effect, in particular, judgment of 27 April 2006, Commission v Germany, C‑441/02, EU:C:2006:253, paragraph 45 and the case-law cited).78That said, the fact remains that, according to settled case-law relating to the burden of proof in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the existence of the infringement alleged. It is the Commission that must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see, in particular, judgments of 27 April 2006, Commission v Germany, C‑441/02, EU:C:2006:253, paragraph 48, and of 2 May 2019, Commission v Croatia (Biljane Donje landfill site), C‑250/18, not published, EU:C:2019:343, paragraph 33).79Thus, as the Commission correctly pointed out, the Court has indeed previously held that the persistence of a situation which leads to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities may be an indication that the Member States have exceeded the discretion which is conferred on them by a specific provision of a directive to achieve the objective prescribed by that provision. However, the Court also stated that it cannot, in principle, be directly inferred from the fact that a situation is not in conformity with that objective that the Member State concerned has necessarily failed to fulfil its obligations under that provision (see, to that effect, judgments of 26 April 2007, Commission v Italy, C‑135/05, EU:C:2007:250, paragraph 37, and of 16 July 2015, Commission v Slovenia, C‑140/14, not published, EU:C:2015:501, paragraph 69 and the case-law cited).80In particular, in view of its obligation, referred to in paragraph 78 above, to prove the alleged failure by a Member State to fulfil its obligations, the Commission cannot, under the guise of claiming that the Member State concerned has generally and persistently failed to fulfil its obligations under EU law on the grounds that the objective set by EU law has not been achieved, avoid complying with that obligation to prove the alleged failure on the basis of concrete evidence of the infringement of the specific provisions which it invokes, and rely on simple presumptions or schematic causations (see, to that effect, judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 78).81Therefore, in this case, the mere fact that the objective sought by amended Implementing Decision 2015/789 has not been achieved does not allow the Commission to infer from that that the Italian Republic has infringed the specific obligations imposed by that implementing decision in order to achieve that objective, unless it demonstrates, in addition, relying on concrete evidence, that that Member State has in fact committed such an infringement.82Whilst it is apparent from the examination of the first two complaints that the Commission has established that the Italian Republic has infringed the specific obligations laid down in Article 7(2)(c) and Article 7(7) of amended Implementing Decision 2015/789, and whilst the evidence put forward by the Commission in support of the third complaint, in particular the 2018 audit report, shows that that infringement continued after the date on which the time limit set in the reasoned opinion expired, the Commission has not provided any concrete evidence whatsoever capable of demonstrating that that Member State has infringed the specific obligations laid down in Article 6(2), (7) and (9) of that implementing decision.83Nevertheless, under no circumstances can infringement of those provisions, concerning eradication measures in the demarcated area, including the infected zone and the buffer zone, which relate both to infected plants and plants situated within a radius of 100 m of the infected plants, including, in particular, host plants of the bacterium Xf, regardless of their state of health, be established by evidence demonstrating infringement of the separate provisions laid down in Article 7(2)(c) and Article 7(7) of that implementing decision, which relate only to infected plants in the 20 km strip of the containment area, which is situated in the infected zone alone and constitutes only a part of that zone.84It follows that, by thus purporting to infer that the Italian Republic has infringed the specific obligations laid down in Article 6(2), (7) and (9) of Implementing Decision 2015/789 from the observation that the bacterium Xf has been spreading continuously in the region of Apulia since 2013, the Commission has relied on the presumption that such infringement has taken place and that there is a causal link between that infringement and the spread of the bacterium Xf.85In the absence of such concrete evidence of infringement of those specific obligations, it is possible however, that, as the Italian Republic correctly argues, the spread of the bacterium Xf may result, at least in part, from circumstances other than infringement of those obligations by that Member State.86Consequently, it must be found that the Commission has failed to establish that the Italian Republic has repeatedly infringed the specific obligations laid down in Article 6(2), (7) and (9) of amended Implementing Decision 2015/789.87As a result, the Commission cannot claim that the Italian Republic has infringed Article 16(1) of Directive 2000/29 and Article 4(3) TEU, as the complaints formulated in that regard by the Commission are based, in the same way, on the mere fact that the bacterium Xf has been spreading in the region of Apulia since 2013.88In those circumstances, it is apparent that the Commission has failed to establish that the Italian Republic has generally and persistently failed to comply with the obligation to adopt the necessary measures to prevent the spread of the bacterium Xf by repeated and distinct infringements of the measures laid down by amended Implementing Decision 2015/789.89Consequently, the third complaint must be rejected.90In the light of all the foregoing considerations, it must be found that the Italian Republic,by failing to ensure, in the containment area, the immediate removal of at least all plants which have been found to be infected by Xf if they are situated in the infected zone, within a distance of 20 km from the border of that infected zone with the rest of the territory of the European Union, has failed to fulfil its obligations under Article 7(2)(c) of amended Implementing Decision 2015/789, andby failing to ensure, in the containment area, the monitoring of the presence of Xf by annual surveys at appropriate times of the year, has failed to fulfil its obligations under Article 7(7) of that implementing decision. Costs 91Under Article 138(3) of the Rules of Procedure of the Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. In the present case, as the parties have succeeded on some and failed on other heads, they must be ordered each to bear their own costs.On those grounds, the Court (Fifth Chamber) hereby: 1. Declares that the Italian Republic, by failing to ensure, in the containment area, the immediate removal of at least all plants which have been found to be infected by Xylella fastidiosa if they are situated in the infected zone, within a distance of 20 km from the border of that infected zone with the rest of the territory of the European Union, has failed to fulfil its obligations under Article 7(2)(c) of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.), as amended by Commission Implementing Decision (EU) 2016/764 of 12 May 2016, and by failing to ensure, in the containment area, the monitoring of the presence of Xylella fastidiosa by annual surveys at appropriate times of the year, has failed to fulfil its obligations under Article 7(7) of that implementing decision; 2. Dismisses the action as to the remainder; 3. Orders the European Commission and the Italian Republic each to bear their own costs. [Signatures]( *1 ) Language of the case: Italian. | ba777-d6cde9e-4984 | EN |
Telecommunications undertakings must transmit, free of charge, to the authority handling emergency calls made to ‘112’ information enabling the caller to be located | 5 September 2019 ( *1 )(Reference for a preliminary ruling — Directive 2002/22/EC — Universal service and users’ rights relating to electronic communications networks and services — Article 26(5) — Single European emergency call number — Making available caller location information)In Case C‑417/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), made by decision of 21 June 2018, received at the Court on 26 June 2018, in the proceedings AW, BV, CU, DT v Lietuvos valstybė, represented by the Lietuvos Respublikos ryšių reguliavimo tarnyba, the Bendrasis pagalbos centras and the Lietuvos Respublikos vidaus reikalų ministerija, THE COURT (Fourth Chamber),composed of M. Vilaras (Rapporteur), President of the Chamber, K. Jürimäe, D. Šváby, S. Rodin and N. Piçarra, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 2 May 2019,after considering the observations submitted on behalf of:–AW, BV, CU and DT, by L. Šaltinytė, and by L. Žalnieriūnas, advokatas,the Lithuanian Government, by R. Dzikovič, K. Dieninis and R. Krasuckaitė, acting as Agents,the European Commission, by G. Braun, S.L. Kalėda, L. Nicolae and A. Steiblytė, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 26 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘Directive 2002/22’).2The request has been made in proceedings between, on the one hand, AW, BV, CU and DT (‘AW and Others ’) and, on the other hand, the Lietuvos valstybė (the Lithuanian State), represented by the Lietuvos Respublikos ryšių reguliavimo tarnyba (Communications Regulatory Authority), the Bendrasis pagalbos centras (Joint Emergency Services Centre) and the Lietuvos Respublikos vidaus reikalų ministerija (Ministry of the Interior of the Republic of Lithuania) concerning their claim for damages. Legal context EU law Directive 2002/22 3Recital 36 of Directive 2002/22 states:‘It is important that users should be able to call the single European emergency number “112”, and any other national emergency telephone numbers, free of charge, from any telephone, including public pay telephones, without the use of any means of payment. … Caller location information, to be made available to the emergency services, will improve the level of protection and the security of users of “112” services and assist the emergency services, to the extent technically feasible, in the discharge of their duties, provided that the transfer of calls and associated data to the emergency services concerned is guaranteed. …’4Article 26 of that directive provides:‘1. Member States shall ensure that all end-users of the service referred to in paragraph 2, including users of public pay telephones, are able to call the emergency services free of charge and without having to use any means of payment, by using the single European emergency call number “112” and any national emergency call number specified by Member States.2. Member States, in consultation with national regulatory authorities, emergency services and providers, shall ensure that undertakings providing end-users with an electronic communications service for originating national calls to a number or numbers in a national telephone numbering plan provide access to emergency services.3. Member States shall ensure that calls to the single European emergency call number “112” are appropriately answered and handled in the manner best suited to the national organisation of emergency systems. Such calls shall be answered and handled at least as expeditiously and effectively as calls to the national emergency number or numbers, where these continue to be in use.…5. Member States shall ensure that undertakings concerned make caller location information available free of charge to the authority handling emergency calls as soon as the call reaches that authority. This shall apply to all calls to the single European emergency call number “112”. Member States may extend this obligation to cover calls to national emergency numbers. Competent regulatory authorities shall lay down criteria for the accuracy and reliability of the caller location information provided.…’ Directive 2009/136 5Recital 39 of Directive 2009/136 states:‘End-users should be able to call and access the emergency services using any telephone service capable of originating voice calls through a number or numbers in national telephone numbering plans. … The obligation to provide caller location information should be strengthened so as to increase the protection of citizens. In particular, undertakings should make caller location information available to emergency services as soon as the call reaches that service independently of the technology used. …’ Lithuanian law Law No IX‑2135 of the Republic of Lithuania on electronic communications 6Article 34(10) of the Lietuvos Respublikos elektroninių ryšių įstatymas No IX‑2135 (Law No IX‑2135 of the Republic of Lithuania on electronic communications) of 15 April 2004 (Žin., 2004, No 69‑2382), in the version applicable to the facts in the main proceedings, provided:‘All providers of public communications networks and public electronic communications services are required to ensure, in accordance with the procedure and conditions set by the Communications Regulatory Authority, free access, for their subscribers and/or users of public electronic communications services, including users of public pay telephones and disabled subscribers and/or users, to emergency services established by the authorities.’7Article 68(2) of that law was worded as follows:‘Providers of public communications networks and providers of public electronic communications services shall transmit, without the consent of the subscriber or the actual user of the electronic communications services, location information for each emergency call (including traffic data) free of charge to the Joint Emergency Services Centre. Location information for each emergency call shall be transmitted free of charge as soon as the emergency call is answered by the Joint Emergency Services Centre. The Joint Emergency Services Centre shall submit proposals to the Communications Regulatory Authority regarding criteria for the accuracy and reliability of caller location information. Having regard to the proposals submitted to it by the Joint Emergency Services Centre, the Communications Regulatory Authority shall lay down criteria for the accuracy and reliability of caller location information. Expenses relating to the acquisition, installation (adaptation), updating and support of hardware (and associated software) which is not necessary to ensure the provider’s economic activity but which is necessary for providing location information (including traffic data) to the Joint Emergency Services Centre shall be reimbursed to providers of public communications networks and providers of public electronic communications services from the State budget in accordance with the procedure set by the Government. The other provisions of this paragraph shall be implemented in accordance with the procedure and conditions laid down in Article 34(10) of the present Law.’ The Procedure for access to emergency services 8By Order No 1V‑1087 of 7 November 2011, the Director of the Communications Regulatory Authority laid down the Procedure for access of subscribers and/or users to emergency services provided by the authorities (‘the Procedure for access to emergency services’).9Point 4.5.4.1 of that procedure provides that mobile network providers are to transmit location information with an accuracy of base station (sector) coverage (Cell‑ID). In that regard, the referring court points out that that procedure does not specify the minimum accuracy with which base stations must transmit the caller’s location or the density of distribution of base stations.10Under point 4.5.4.2 of the Procedure for access to emergency services, 95% of all location information must be transmitted within 20 seconds from the time at which the connection is made with the Joint Emergency Services Centre, or from the time of the request made by the Joint Emergency Services Centre to the network provider or mobile communication services provider.11Point 4.5.4.3 of the Procedure for access to emergency services provides that the mobile network providers’ system for the transmission of location information must be fully duplicated and be available for at least 97% of the year. The dispute in the main proceedings and the questions referred for a preliminary ruling 12AW and Others are close relatives of ES, a girl aged 17 who was the victim of a criminal act. It is apparent from the documents before the Court that on 21 September 2013, at around 6.00 a.m., in a suburb of Panevėžys (Lithuania), ES was kidnapped, raped and burnt alive in the boot of a car. Finding herself trapped in that car boot, she had called the Lithuanian emergency call answering centre, using a mobile telephone, on the single European emergency call number ‘112’ (‘112’) 10 times in order to seek help. However, the equipment in the emergency call answering centre did not show the number of the mobile telephone used, which prevented the employees of that answering centre from locating her. It has not been possible to determine whether the mobile telephone used by ES was fitted with a SIM card or why her number was not visible at the emergency call answering centre.13AW and Others brought an action before the referring court seeking an order requiring the Lithuanian State to pay compensation for the non-material damage suffered by the victim, ES, and by themselves, her close relatives. In support of their action they submit that the Republic of Lithuania has failed properly to ensure practical implementation of Article 26(5) of Directive 2002/22. That failure, they argue, meant that it was impossible to pass on to operational police officers information on ES’s location, which prevented the police from coming to her assistance.14The referring court addresses the question whether, first, Article 26(5) of Directive 2002/22 imposes an obligation to transmit caller location information, in the case where the call is made from a mobile telephone without a SIM card and, secondly, whether, in a case such as that in the main proceedings, in which the legislation of a Member State allows 112 to be called from a mobile telephone without a SIM card, caller location information must be defined in accordance with Article 26(5) of Directive 2002/22.15If the view were to be taken that, in the case of a call made to 112 from a mobile phone without a SIM card, the Member States are required to ensure that the location of the caller is established, the national court also wishes to know whether, in the light of the obligations arising from Article 26(5) of Directive 2002/22, the applicable Lithuanian legislation makes it possible to ensure that the location of the caller is established with sufficient accuracy.16Finally, the referring court states that, if it is established that the competent authorities of the Member States must ensure that the location of a person who calls 112 is established, even in the case where that person calls using a mobile telephone which has not been fitted with a SIM card, it must resolve the question as to whether there must be a direct causal link between the breach of that obligation by the Member State concerned and the damage sustained by individuals or whether an indirect causal link is sufficient in the case where, under national legislation or case-law, such a causal link is sufficient to fulfil one of the conditions giving rise to the liability of the Member State concerned.17In those circumstances, the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Does Article 26(5) of Directive 2002/22 … regulate the mandatory transmission of location information where calls are made from mobile telephones without SIM cards?(2)Where a Member State’s national legislation allows [112] to be called without a SIM card, does that mean that location information for such emergency calls has to be established in accordance with Article 26(5) of Directive 2002/22 …?(3)Is the national legislation laid down in point 4.5.4 of the Procedure for access [to the Emergency Services] which, inter alia, provides that public mobile network providers are to transmit location information with an accuracy of base station (sector) coverage (Cell‑ID), but which does not specify the minimum accuracy (in terms of distance) with which base stations must establish the caller’s location or the density (in terms of distance) at which base stations must be distributed, compatible with Article 26(5) of Directive 2002/22 … which provides that competent regulatory authorities are to lay down criteria for the accuracy and reliability of the caller location information provided?(4)If the answers to the first question and/or second question are such that a Member State has to ensure that location information is established in accordance with Article 26(5) of Directive 2002/22 … and/or the answer to the third question is such that the national legislation is incompatible with Article 26(5) of Directive 2002/22 … which provides that competent regulatory authorities are to lay down criteria for the accuracy and reliability of the caller location information provided, is a national court required, when deciding on the issue of compensation for damage, to establish a direct causal link between the breach of EU law and the damage sustained by the individuals, or is it sufficient to establish an indirect causal link between the breach of EU law and the damage sustained by the individuals, where, under the provisions of national law and/or national case-law, such an indirect causal link is sufficient to give rise to liability?’ Consideration of the questions referred The first and second questions 18By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 26(5) of Directive 2002/22 must be interpreted as requiring the Member States to ensure that the undertakings concerned make available, free of charge, to the authority handling emergency calls made to 112, caller location information as soon as the call reaches that authority, including in cases where the call is made from a mobile telephone which is not fitted with a SIM card.19As a preliminary point, it must be noted that, in its written observations submitted to the Court, the Lithuanian Government argues that such a situation does not come within the scope of Article 26(5) of Directive 2002/22, but is governed by the domestic law of each Member State, in this case Lithuanian law.20In that regard, it is sufficient to note that the subject matter of the first and second questions is, specifically, the applicability of Article 26(5) of Directive 2002/22 in a situation such as that which gave rise to the dispute in the main proceedings. By its questions, the referring court is therefore not asking the Court to interpret Lithuanian law but to interpret EU law, in particular Directive 2002/22.21As regards the answer to the first and second questions, it is apparent from the actual wording of Article 26(5) of Directive 2002/22 that ‘all calls to the single European emergency call number’ are covered by the obligation to make caller location information available.22It must also be borne in mind that the Court has previously held that it followed from Article 26(3) of Directive 2002/22, in its original version, which corresponds to Article 26(5) in the current version of that directive, that that provision imposes on the Member States, subject to technical feasibility, an obligation to achieve a result, which is not limited to putting in place an appropriate regulatory framework, but which requires that the information on the location of all callers to ‘112’ be actually transmitted to the emergency services (judgment of 11 September 2008, Commission v Lithuania, C‑274/07, EU:C:2008:497, paragraph 40).23Therefore, it cannot be accepted that calls to 112 made from a mobile telephone not fitted with a SIM card are excluded from the scope of that provision.24Consequently, the answer to the first and second questions is that Article 26(5) of Directive 2002/22 must be interpreted as requiring the Member States, subject to technical feasibility, to ensure that the undertakings concerned make caller location information available free of charge to the authority handling emergency calls to 112 as soon as the call reaches that authority, including in cases where the call is made from a mobile telephone which is not fitted with a SIM card. The third question 25By its third question, the referring court asks the Court, in essence, to rule on whether the national legislation which defined the criteria relating to the accuracy and reliability of the information on the location of the caller to 112 is in accordance with Article 26(5) of Directive 2002/22.26In particular, the referring court has doubts, as is apparent from paragraph 9 of the present judgment, as to whether a Member State may confine itself to providing that the information on the location of a caller to 112 must be provided with an accuracy of base station coverage. The referring court considers that operators could be required to provide information which indicates, with a minimum degree of accuracy, the distance of the caller from the base station through which that person’s call has been transmitted. In addition, it points out that the applicable Lithuanian legislation does not specify the required density of base stations and does not lay down a maximum distance between them.27In that regard, it is necessary, at the outset, to point out that, in accordance with the Court’s case-law, it is for the national court with jurisdiction to determine whether national legislation is compatible with EU law, as the Court, when giving a preliminary ruling under Article 267 TFEU, has jurisdiction only to provide the national court with all the criteria for the interpretation of EU law which may enable it to determine that issue of compatibility (see, to that effect, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 126).28In those circumstances, it is necessary to reformulate the third question and to take the view that, by that question, the referring court is asking, in essence, whether Article 26(5) of Directive 2002/22 must be interpreted as conferring on the Member States a measure of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to 112 which enables them to limit that information to the identification of the base station which relayed the call.29As the Lithuanian Government and the European Commission have stated in their observations submitted to the Court, it is apparent from the wording of the last sentence of Article 26(5) of Directive 2002/22 that the Member States enjoy some latitude when laying down the criteria relating to the accuracy and reliability of information on the location of the caller to 112 that the undertakings concerned must make available free of charge to the authority dealing with emergency calls, in accordance with the first sentence of that paragraph.30However, it should be noted that it is apparent from recital 36 of Directive 2002/22 and from recital 39 of Directive 2009/136 that the mandatory transmission of information on caller location is intended to improve the level of protection and the safety of users of 112 and to assist the emergency services in the discharge of their duties.31Thus, the criteria relating to the accuracy and reliability of information on caller location must, in any event, ensure, subject to technical feasibility, that the position of that caller is located as reliably and accurately as is necessary to enable the emergency services usefully to come to that caller’s assistance.32The discretion enjoyed by the Member States in laying down those criteria is therefore limited by the need to ensure the usefulness of the information transmitted in enabling the caller to be effectively located and, therefore, in enabling the emergency services to intervene.33Since such an assessment is eminently technical and intimately linked to the specific characteristics of the Lithuanian mobile telecommunications network, it is for the national court to carry out that assessment.34The answer to the third question must therefore be that Article 26(5) of Directive 2002/22 must be interpreted as conferring on the Member States a measure of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to 112; however, the criteria which they lay down must ensure, within the limits of technical feasibility, that the caller’s position is located as reliably and accurately as is necessary to enable the emergency services usefully to come to the caller’s assistance, this being a matter for the national court to assess. The fourth question 35By its fourth question, the referring court asks, in essence, whether EU law must be interpreted as meaning that where, in accordance with the domestic law of a Member State, the existence of an indirect causal link between the unlawful act committed by the national authorities and the damage sustained by an individual is regarded as sufficient to render the State liable, such an indirect causal link between a breach of EU law attributable to that Member State and the damage sustained by an individual must also be regarded as sufficient for the purposes of rendering that Member State liable for that breach of EU law.36In its observations submitted to the Court, the Lithuanian Government disputed whether an indirect causal link between the unlawful act committed and the damage sustained could be sufficient to render the Lithuanian State liable under national law. According to the Lithuanian Government, it is apparent from the applicable Lithuanian provisions that, in order for the liability of the State to be incurred, there must be a direct causal link between the unlawful act committed by the national authorities and the breach of the rights of the individual who has sustained damage.37Suffice it to note, in this regard, that it is not for the Court, in the context of the judicial cooperation established by Article 267 TFEU, to give a ruling on the interpretation of provisions of national law, or to decide whether the referring court’s interpretation of those provisions is correct (judgment of 26 March 2015, Macikowski, C‑499/13, EU:C:2015:201, paragraph 51 and the case-law cited).38As regards the answer to the fourth question, it must, admittedly, be noted that the conditions that must be satisfied in order for a Member State to incur non-contractual liability for loss and damage caused to individuals as a result of breaches of EU law for which it is responsible include that relating to the existence of a direct causal link between the breach of EU law and the loss or damage sustained by those individuals (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 94 and the case-law cited).39However, it is clear from the Court’s case-law that, in the event of a breach of EU law attributable to the State, it is on the basis of the rules of national law on liability that that State must make reparation for the consequences of the loss and damage caused, provided that the conditions for reparation of loss and damage laid down by national law are not less favourable than those relating to similar domestic claims (principle of equivalence) (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 123 and the case-law cited).40It follows that, in a situation where, in accordance with the domestic law of a Member State, as interpreted by the case-law of its domestic courts, the existence of an indirect causal link between a breach of national law by that Member State and the damage sustained is regarded as sufficient to incur the liability of the State, an indirect causal link between a breach of EU law attributable to the Member State in question and the damage sustained by individuals must also, in accordance with the principle of equivalence, be regarded as sufficient for the purposes of rendering that Member State liable for that breach.41Consequently, the answer to the fourth question is that EU law must be interpreted as meaning that, where, in accordance with the domestic law of a Member State, the existence of an indirect causal link between the unlawful act committed by the national authorities and the damage sustained by an individual is regarded as sufficient to render the State liable, such an indirect causal link between a breach of EU law attributable to that Member State and the damage sustained by an individual must also be regarded as sufficient for the purposes of rendering that Member State liable for that breach of EU law. Costs 42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fourth Chamber) hereby rules: 1. Article 26(5) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as requiring the Member States, subject to technical feasibility, to ensure that the undertakings concerned make caller location information available free of charge to the authority handling emergency calls to the single European emergency call number ‘112’ as soon as the call reaches that authority, including in cases where the call is made from a mobile telephone which is not fitted with a SIM card. 2. Article 26(5) of Directive 2002/22, as amended by Directive 2009/136, must be interpreted as conferring on the Member States a measure of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to the single European emergency call number ‘112’; however, the criteria which they lay down must ensure, within the limits of technical feasibility, that the caller’s position is located as reliably and accurately as is necessary to enable the emergency services usefully to come to the caller’s assistance, this being a matter for the national court to assess. 3. EU law must be interpreted as meaning that where, in accordance with the domestic law of a Member State, the existence of an indirect causal link between the unlawful act committed by the national authorities and the damage sustained by an individual is regarded as sufficient to render the State liable, such an indirect causal link between a breach of EU law attributable to that Member State and the damage sustained by an individual must also be regarded as sufficient for the purposes of rendering that Member State liable for that breach of EU law. [Signatures]( *1 ) Language of the case: Lithuanian. | 4ea4f-94cba72-4a3f | EN |
The option to pay by SEPA direct debit cannot be subject to a condition of residence in the national territory | 5 September 2019 ( *1 )(Reference for a preliminary ruling — Technical and business requirements for credit transfers and direct debits in euro — Regulation (EU) No 260/2012 — Single euro payments area (SEPA) — Payment by direct debit — Article 9(2) — Accessibility of payments — Residence condition)In Case C‑28/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 20 December 2017, received at the Court on 17 January 2018, in the proceedings Verein für Konsumenteninformation v Deutsche Bahn AG, THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, C. Lycourgos, E. Juhász, M. Ilešič and I. Jarukaitis, Judges,Advocate General: M. Szpunar,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 30 January 2019,after considering the observations submitted on behalf of:–the Verein für Konsumenteninformation, by S. Langer, Rechtsanwalt,Deutsche Bahn AG, by C. Pöchhacker and L. Riede, Rechtsanwälte,the European Commission, by H. Tserepa-Lacombe and T. Scharf, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 2 May 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 9(2) of Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 (OJ 2012 L 94, p. 22).2The request has been made in proceedings between the Verein für Konsumenteninformation (Consumer Information Association; ‘the VKI’) and Deutsche Bahn AG concerning the fact that it is not possible for passengers who are not resident in Germany to pay for tickets booked on the company’s website by means of direct debit in euros under the EU-wide direct debit scheme (‘SEPA direct debit’). Legal context 3Recitals 1, 6, 9, 10 and 32 of Regulation No 260/2012 are worded as follows:‘(1)The creation of an integrated market for electronic payments in euro, with no distinction between national and cross-border payments is necessary for the proper functioning of the internal market. To that end, the single euro payments area (SEPA) project aims to develop common Union-wide payment services to replace current national payment services. As a result of the introduction of open, common payment standards, rules and practices, and through integrated payment processing, SEPA should provide Union citizens and businesses with secure, competitively priced, user-friendly, and reliable payment services in euro. This should apply to SEPA payments within and across national boundaries under the same basic conditions and in accordance with the same rights and obligations, regardless of location within the Union. ……(6)Only rapid and comprehensive migration to Union-wide credit transfers and direct debits will generate the full benefits of an integrated payments market, so that the high costs of running both “legacy” and SEPA products in parallel can be eliminated. Rules should therefore be laid down to cover the execution of all credit transfer and direct debit transactions denominated in euro within the Union. …(9)For a credit transfer to be executed, the payee’s payment account must be reachable. Therefore, in order to encourage the successful take-up of Union-wide credit transfer and direct debit services, a reachability obligation should be established across the Union. To improve transparency, it is furthermore appropriate to consolidate that obligation and the reachability obligation for direct debits already established under Regulation (EC) No 924/2009 [of the European Parliament and of the Council of 16 September 2009 on cross-border payments in the Community and repealing Regulation (EC) No 2560/2001 (OJ 2009 L 266, p. 11)] in a single act. All payee payment accounts reachable for a national credit transfer should also be reachable via a Union-wide credit transfer scheme. All payers’ payment accounts reachable for a national direct debit should also be reachable via a Union-wide direct debit scheme. This should apply whether or not a [payment service provider (PSP)] decides to participate in a particular credit transfer or direct debit scheme.(10)Technical interoperability is a prerequisite for competition. In order to create an integrated market for electronic payments systems in euro, it is essential that the processing of credit transfers and direct debits is not hindered by business rules or technical obstacles such as compulsory adherence to more than one system for settling cross-border payments. Credit transfers and direct debits should be carried out under a scheme, the basic rules of which are adhered to by PSPs representing a majority of PSPs within a majority of the Member States and constituting a majority of PSPs within the Union, and which are the same both for cross-border and for purely national credit transfer and direct debit transactions. …(32)In order to ensure broad public support for SEPA, a high level of protection for payers is essential, particularly for direct debit transactions. The current and only pan-European direct debit scheme for consumers developed by the [European Payments Council (EPC)] provides for a “no-questions-asked”, unconditional refund right for authorised payments during a period of 8 weeks from the date on which the funds were debited, while that refund right is subject to several conditions under Articles 62 and 63 of Directive 2007/64/EC [of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1)]. In the light of the prevailing market situation and of the necessity to ensure a high level of consumer protection, the impact of those provisions should be assessed in the report that, in accordance with Article 87 of Directive 2007/64/EC, the Commission shall, no later than 1 November 2012, present to the European Parliament, the Council, the European Economic and Social Committee and the [European Central Bank] accompanied, where appropriate, by a proposal for its revision.’4Article 1 of Regulation No 260/2012, entitled ‘Subject matter and scope’, provides in paragraph 1:‘This Regulation lays down rules for credit transfer and direct debit transactions denominated in euro within the Union where both the payer’s payment service provider and the payee’s payment service provider are located in the Union, or where the sole payment service provider (PSP) involved in the payment transaction is located in the Union.’5Article 2 of that regulation, entitled ‘Definitions’, provides:‘For the purposes of this Regulation, the following definitions shall apply:(2)“direct debit” means a national or cross-border payment service for debiting a payer’s payment account, where a payment transaction is initiated by the payee on the basis of the payer’s consent;(3)“payer” means a natural or legal person who holds a payment account and allows a payment order from that payment account or, where there is no payer’s payment account, a natural or legal person who makes a payment order to a payee’s payment account;(4)“payee” means a natural or legal person who holds a payment account and who is the intended recipient of funds which have been the subject of a payment transaction;(5)“payment account” means an account held in the name of one or more payment service users which is used for the execution of payment transactions;(21)“mandate” means the expression of consent and authorisation given by the payer to the payee and (directly or indirectly via the payee) to the payer’s PSP to allow the payee to initiate a collection for debiting the payer’s specified payment account and to allow the payer’s PSP to comply with such instructions;(26)“cross-border payment transaction” means a payment transaction initiated by a payer or by a payee where the payer’s PSP and the payee’s PSP are located in different Member States;(27)“national payment transaction” means a payment transaction initiated by a payer or by a payee, where the payer’s PSP and the payee’s PSP are located in the same Member State;…’6Article 3 of that regulation, entitled ‘Reachability’, provides in paragraph 2:‘A payer’s PSP which is reachable for a national direct debit under a payment scheme shall be reachable, in accordance with the rules of a Union-wide payment scheme, for direct debits initiated by a payee through a PSP located in any Member State.’7Article 9 of the regulation, entitled ‘Payment accessibility’, states in paragraph 2:‘A payee accepting a credit transfer or using a direct debit to collect funds from a payer holding a payment account located within the Union shall not specify the Member State in which that payment account is to be located, provided that the payment account is reachable in accordance with Article 3.’ The dispute in the main proceedings and the question referred for a preliminary ruling 8In accordance with Austrian legislation, the VKI has standing to bring an action for the protection of consumers.9Deutsche Bahn is a rail transport company with its registered office in Berlin (Germany). It offers consumers the possibility to book international train journeys on its website. For that purpose it concludes contracts with consumers on the basis of its general conditions of carriage.10According to one of the clauses in those general conditions of carriage, bookings made on Deutsche Bahn’s website may be paid for by credit card, via PayPal, by credit transfer or under the SEPA direct debit scheme. However, according to that clause, payment by SEPA direct debit is only accepted subject to the observance of several conditions, namely that the payer have a place of residence in Germany, that he consent to the direct debit being taken from an account held with a bank or savings bank that has its registered office in a SEPA-participating State, that he instruct the bank or savings bank to honour the SEPA direct debit and that he register on the Deutsche Bahn website. In addition, in order to activate the SEPA direct debit scheme, the payer must give his consent to undergo a credit check.11The VKI brought an action for a prohibitory order before the Handelsgericht Wien (Commercial Court, Vienna, Austria) by which it sought to have Deutsche Bahn ordered to cease using that clause in consumer contracts. In support of that action, the VKI claimed that the clause at issue in the main proceedings, according to which the payer must inter alia have a place of residence in Germany in order to make a payment by SEPA direct debit, is contrary to Article 9(2) of Regulation No 260/2012 since, first, a consumer’s payment account is generally located in the Member State of his residence and, secondly, that clause imposes an even weightier obligation than a condition requiring the payer to open a payment account in Germany.12Deutsche Bahn contends that since Regulation No 260/2012 is addressed to payment service providers, it aims to protect payments rather than payers. That regulation does not require payees to offer payment by SEPA direct debit to all consumers throughout the European Union. Moreover, other methods of payment are available to consumers for the purpose of purchasing tickets on its website. In any event, the condition regarding the consumer’s place of residence is justified. Indeed, in contrast to the situation in relation to other payment procedures, under the direct debit scheme the payee receives no payment guarantee from the payment service provider.13By judgment of 13 July 2016, the Handelsgericht Wien (Commercial Court, Vienna), allowed the VKI’s claim with regard to consumers residing in Austria, having held that the clause was contrary to Article 9(2) of Regulation No 260/2012.14By judgment of 14 March 2017, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), hearing the case on appeal, set aside that judgment and dismissed the VKI’s claim on the ground that, while Article 9(2) of Regulation No 260/2012 ensures that both payers and payees only require a single bank account for both domestic and cross-border payments by direct debit, the regulation does not oblige payees to accept, in all cases, specific payment instruments for the settlement of commercial transactions with consumers.15The Oberster Gerichtshof (Supreme Court, Austria), which is hearing the VKI’s appeal against that judgment, considers that, by prohibiting payers and payees from specifying in which Member State the other party’s account must be held, Article 9(2) of Regulation No 260/2012 does not apply to payment service providers but applies to the relationships between payees and payers and, accordingly, aims to protect payers. Whilst it is true that on a literal interpretation that provision only prohibits making the geographical location of the payment account a criterion, nevertheless, a clause, such as that at issue in the main proceedings, which precludes payment by SEPA direct debit when the payer is not resident in the same Member State as that in which the payee has established his place of business, could be contrary to that provision since a payer’s payment account is, as a general rule, located in the Member State in which the payer is resident.16In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Must Article 9(2) of Regulation [No 260/2012] be interpreted as meaning that the payee is prohibited from making payment under the SEPA direct debit scheme dependent on the payer’s place of residence being in the Member State in which the payee also has its registered office or residence, if payment in a different way, for example with a credit card, is also allowed?’ Consideration of the question referred 17By its question, the referring court asks, in essence, whether Article 9(2) of Regulation No 260/2012 must be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which excludes payment by SEPA direct debit where the payer’s place of residence is not in the same Member State as that in which the payee has established his place of business.18As a preliminary point, it must be borne in mind that, as is apparent from recital 1 of Regulation No 260/2012, that regulation was adopted in the context of the project to create SEPA, with the intention of developing, for payments in euros, common Union-wide payment services to replace national payment services.19According to Article 1, that regulation aims to lay down rules for credit transfer and direct debit transactions denominated in euros within the Union where both the payer’s payment service provider and the payee’s payment service provider are located in the Union, or where the sole payment service provider involved in the payment transaction is located in the Union.20As is apparent particularly from recitals 1 and 6 of that regulation, the technical and business requirements provided for by the regulation apply to national and cross-border payments made under SEPA according to the same basic conditions and in accordance with the same rights and obligations, regardless of location within the Union, in order to ensure a complete migration to Union-wide credit transfers and direct debits and thus to introduce an integrated market for electronic payments in euros in which there is no distinction between national and cross-border payments.21In that respect, Article 9(2) of Regulation No 260/2012 provides that a payee who uses a direct debit to collect funds from a payer holding a payment account located within the Union is not to ‘specify’ the Member State in which that payment account is to be located, provided that the payment account is reachable in accordance with Article 3 of that regulation, given that the term ‘direct debit’ is defined in Article 2(2) of that regulation as a national or cross-border payment service for debiting a payer’s payment account, where a payment transaction is initiated by the payee on the basis of the payer’s consent.22Pursuant to Article 3(2) of Regulation No 260/2012, a payer’s PSP which is reachable for a national direct debit under a payment scheme must be reachable in the same way, as is also apparent from recital 9 of the regulation, for direct debits initiated by a payee in accordance with the rules of a Union-wide payment scheme via a PSP located in another Member State.23It thus follows from the wording of Article 9(2) of Regulation No 260/2012, read in conjunction with Article 3(2) of that regulation, that a payee receiving a direct debit is prohibited from requiring that the payer’s account be located in a particular Member State when that account is reachable for a national direct debit.24In the present case it is common ground that, although the clause at issue in the main proceedings requires the payer to have his place of residence in the same Member State as that in which the payee has established his place of business, namely Germany, it does not, by contrast, require the payer to have a payment account in a specific Member State. That clause is therefore not explicitly covered by the wording of Article 9(2) of Regulation No 260/2012.25However, the Court of Justice has consistently held that, in interpreting provisions of EU law, it is necessary to consider not only their wording but also the context in which they occur and the objectives pursued by the rules of which they are part (judgment of 17 October 2018, Günter Hartmann Tabakvertrieb, C‑425/17, EU:C:2018:830, paragraph 18 and the case-law cited).26In that regard, the fundamental purpose of Regulation No 260/2012, as was noted in paragraphs 18 to 20 above, is to establish technical and business requirements, as regards direct debits in particular, in order to develop common Union-wide payment services.27That being said, Article 9(2) of that regulation, in so far as it expressly concerns the specific relationship between the payer and the payee, also contributes to the objective of achieving the high level of consumer protection necessary to ensure broad support for SEPA by those consumers, as is apparent from recital 32 of that regulation.28That provision allows, as regards payment by direct debit, a single payment account to be used for any transaction within the European Union, thus avoiding costs associated with maintaining several payment accounts, and does so by ensuring, as is apparent from recital 10 of Regulation No 260/2012, that business rules do not have the effect of preventing consumers from making payments, within the context of an integrated market for electronic payments in euros, to accounts held by payees with PSPs located in other Member States.29However, it must be noted that a clause, such as the one at issue in the main proceedings, under which a distinction is drawn on the basis of the payer’s place of residence, is liable to operate mainly to the detriment of consumers who do not have a payment account in the Member State in which the payee has established his place of business. It is common ground that consumers most often have a payment account in the Member State in which they are resident.30Such a clause therefore indirectly indicates the Member State in which the payment account must be located, thus producing effects comparable to those resulting from such an indication of a specific Member State.31In most instances, that residence condition restricts the accessibility of payment by SEPA direct debit only to payers with a payment account in the Member State in which the payee has established his place of business and, accordingly, excludes from this method of payment payers with payment accounts in other Member States.32Accordingly, that clause reserves this method of payment essentially to national payment transactions within the meaning of Article 2(27) of Regulation No 260/2012, namely those made between a payer and a payee each with a payment account with PSPs located in the same Member State, and to the exclusion, as a result, of most cross-border payment transactions, which involve, in accordance with Article 2(26) of that regulation, PSPs located in different Member States.33It follows that a clause such as that at issue in the main proceedings is liable to undermine the practical effect of Article 9(2) of Regulation No 260/2012, since it prevents payers from being able to make a direct debit from an account located in the Member State of their choice. That clause therefore frustrates the objective pursued by that provision, that being, as was stated in paragraph 28 above, to prevent business rules from undermining the development of an integrated market for electronic payments in euros, referred to in recital 1 of that regulation.34In this regard it is irrelevant that the consumer may use alternative payment methods. Although payees remain free either to offer payers the possibility of making payments by SEPA direct debit or not, by contrast, contrary to what Deutsche Bahn maintains, when they do offer such a possibility, those payees may not subject the use of that payment method to conditions which undermine the practical effects of Article 9(2) of Regulation No 260/2012.35However, according to Deutsche Bahn, it can be inferred from Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ 2018 L 60 I, p. 1) that Article 9(2) of Regulation No 260/2012 does not relate to a residence condition, such as that at issue in the main proceedings.36However, aside from the fact that it excludes from its scope transport services, such as those at issue in the main proceedings, and that it only became applicable from 3 December 2018, that is to say after the facts of the main proceedings, it is sufficient to state that Regulation No 2018/302, which specifically concerns geo-blocking, has no effect whatsoever on the interpretation of Article 9(2) of Regulation No 260/2012, as the Advocate General noted in point 39 of his Opinion, in the absence of a cross-reference made by the EU legislature between those two regulations.37Deutsche Bahn also maintains that a residence condition such as that at issue in the main proceedings is justified by the need to credit-check payers, since the risk of abuse or default on payment is particularly high when, as in the case in the main proceedings, the direct debit follows on from a mandate delivered directly by the payer to the payee without the involvement of either of their payment service providers. In those circumstances, the payee should himself assess the risk of the client defaulting on his payment.38It must be noted, however, as the Advocate General observed in points 46 and 47 of his Opinion, that neither Article 9(2) of Regulation No 260/2012 nor any other provision of that regulation provide for an exception to the obligation set out therein, the EU legislature having sufficiently taken into consideration the various interests at stake between payers and payees when adopting that provision.39In any event, as the Commission noted during the hearing, nothing prevents a payee from reducing the risk of abuse or of default on payment by, for example, providing that delivery or printing of tickets will only be possible once the payee has received confirmation that the payment has actually been collected.40In the light of the foregoing, the answer to the question referred is that Article 9(2) of Regulation No 260/2012 must be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which excludes payment by SEPA direct debit where the payer does not have his place of residence in the same Member State as that in which the payee has established his place of business. Costs 41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fifth Chamber) hereby rules: Article 9(2) of Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 must be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which excludes payment by direct debit in euros under the European Union-wide direct debit scheme (SEPA direct debit) where the payer does not have his place of residence in the same Member State as that in which the payee has established his place of business. [Signatures]( *1 ) Language of the case: German. | 8270f-f6a1fd2-4013 | EN |
Advocate General Bobek: the General Court was correct in confirming the Commission decision not to submit a legislative proposal in the context of the European citizens’ initiative ‘One of Us’ | 19 December 2019 ( *1 )(Appeal — Institutional law — Citizens’ initiative ‘One of us’ — Communication from the European Commission setting out its conclusions and the reasons for not taking the action requested in the citizens’ initiative)In Case C‑418/18 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 June 2018, Patrick Grégor Puppinck, residing in Strasbourg (France), Filippo Vari, residing in Rome (Italy), Josephine Quintavalle, residing in London (United Kingdom), Edith Frivaldszky, residing in Tata (Hungary), Jakub Baltroszewicz, residing in Cracow (Poland), Alicia Latorre Canizares, residing in Cuenca (Spain), Manfred Liebner, residing in Zeitlofs (Germany),represented by R. Kiska, Solicitor, and P. Diamond, Barrister,appellants,the other parties to the proceedings being: European Citizens’ Initiative One of Us, applicant at first instance, European Commission, represented by H. Krämer, acting as Agent,defendant at first instance, Republic of Poland, European Parliament, Council of the European Union, interveners at first instance,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal, M. Vilaras, E. Regan, S. Rodin (Rapporteur), P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský and N. Piçarra, Judges,Advocate General: M. Bobek,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 25 March 2019,after hearing the Opinion of the Advocate General at the sitting on 29 July 2019,gives the following Judgment 1By their appeal, Mr Patrick Grégor Puppinck, Mr Filippo Vari, Ms Josephine Quintavalle, Ms Edith Frivaldszky, Mr Jakub Baltroszewicz, Ms Alicia Latorre Canizares and Mr Manfred Liebner ask the Court to set aside the judgment of the General Court of the European Union of 23 April 2018, One of Us and Others v Commission (T‑561/14; ‘the judgment under appeal’, EU:T:2018:210), whereby the General Court dismissed their action seeking the annulment of Communication COM(2014) 355 final from the Commission of 28 May 2014 on the European citizens’ initiative ‘One of us’ (‘the contested communication’). Legal context 2Recital 1 of Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1, and corrigendum OJ 2012 L 94, p. 49), is worded as follows:‘The Treaty on European Union (TEU) reinforces citizenship of the Union and enhances further the democratic functioning of the Union by providing, inter alia, that every citizen is to have the right to participate in the democratic life of the Union by way of a European citizens’ initiative. That procedure affords citizens the possibility of directly approaching the Commission with a request inviting it to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties similar to the right conferred on the European Parliament under Article 225 of the Treaty on the Functioning of the European Union (TFEU) and on the Council under Article 241 TFEU.’3Recital 20 of that regulation states:‘The Commission should examine a citizens’ initiative and set out its legal and political conclusions separately. It should also set out the action it intends to take in response to it, within a period of three months. In order to demonstrate that a citizens’ initiative supported by at least one million Union citizens and its possible follow-up are carefully examined, the Commission should explain in a clear, comprehensible and detailed manner the reasons for its intended action, and should likewise give its reasons if it does not intend to take any action. When the Commission has received a citizens’ initiative supported by the requisite number of signatories which fulfils the other requirements of this Regulation, the organisers should be entitled to present that initiative at a public hearing at Union level.’4Article 2(1) of that regulation provides:‘For the purpose of this Regulation the following definitions shall apply:(1)“citizens’ initiative” means an initiative submitted to the Commission in accordance with this Regulation, inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties, which has received the support of at least one million eligible signatories coming from at least one quarter of all Member States.’5Article 4(1) and (2) of Regulation No 211/2011 states:‘1. Prior to initiating the collection of statements of support from signatories for a proposed citizens’ initiative, the organisers shall be required to register it with the Commission, providing the information set out in Annex II, in particular on the subject matter and objectives of the proposed citizens’ initiative.That information shall be provided in one of the official languages of the Union, in an online register made available for that purpose by the Commission (“the register”).The organisers shall provide, for the register and where appropriate on their website, regularly updated information on the sources of support and funding for the proposed citizens’ initiative.After the registration is confirmed in accordance with paragraph 2, the organisers may provide the proposed citizens’ initiative in other official languages of the Union for inclusion in the register. The translation of the proposed citizens’ initiative into other official languages of the Union shall be the responsibility of the organisers.The Commission shall establish a point of contact which provides information and assistance.2. Within two months from the receipt of the information set out in Annex II, the Commission shall register a proposed citizens’ initiative under a unique registration number and send a confirmation to the organisers, provided that the following conditions are fulfilled:(a)the citizens’ committee has been formed and the contact persons have been designated in accordance with Article 3(2);(b)the proposed citizens’ initiative does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties;(c)the proposed citizens’ initiative is not manifestly abusive, frivolous or vexatious; and(d)the proposed citizens’ initiative is not manifestly contrary to the values of the Union as set out in Article 2 TEU.’6The first paragraph of Article 9 of that regulation, that article being headed ‘Submission of a citizens’ initiative to the Commission’, provides:‘After obtaining the certificates provided for in Article 8(2), and provided that all relevant procedures and conditions set out in this Regulation have been complied with, the organisers may submit the citizens’ initiative to the Commission, accompanied by information regarding any support and funding received for that initiative. That information shall be published in the register.’7Article 10 of that regulation provides:‘1. Where the Commission receives a citizens’ initiative in accordance with Article 9 it shall:publish the citizens’ initiative without delay in the register;receive the organisers at an appropriate level to allow them to explain in detail the matters raised by the citizens’ initiative;within three months, set out in a communication its legal and political conclusions on the citizens’ initiative, the action it intends to take, if any, and its reasons for taking or not taking that action.2. The communication referred to in paragraph 1(c) shall be notified to the organisers as well as to the European Parliament and the Council and shall be made public.’8Article 11 of Regulation No 211/2011, headed ‘Public hearing’, states:‘Where the conditions of Article 10(1)(a) and (b) are fulfilled, and within the deadline laid down in Article 10(1)(c), the organisers shall be given the opportunity to present the citizens’ initiative at a public hearing. The Commission and the European Parliament shall ensure that this hearing is organised at the European Parliament, if appropriate together with such other institutions and bodies of the Union as may wish to participate, and that the Commission is represented at an appropriate level.’9Annex II to that regulation, headed ‘Required information for registering a proposed citizens’ initiative’, is worded as follows :‘The following information shall be provided in order to register a proposed citizens’ initiative on the Commission’s online register:1.The title of the proposed citizens’ initiative, in no more than 100 characters;2.The subject matter, in no more than 200 characters;3.A description of the objectives of the proposed citizens’ initiative on which the Commission is invited to act, in no more than 500 characters;4.The provisions of the Treaties considered relevant by the organisers for the proposed action;…Organisers may provide more detailed information on the subject, objectives and background to the proposed citizens’ initiative in an annex. They may also, if they wish, submit a draft legal act.’ Background to the dispute 10The background to the dispute is set out in paragraphs 1 to 30 of the judgment under appeal and may be summarised as follows.11On 11 May 2012 the Commission, in accordance with Article 4(2) of Regulation No 211/2011, registered the proposed European citizens’ initiative with the title ‘One of us’ (‘the ECI at issue’).12The subject matter of the ECI at issue was ‘the juridical protection of the dignity, the right to life and of the integrity of every human being from conception in the areas of EU competence in which such protection is of particular importance’.13The objectives of that ECI were described as follows:‘The human embryo deserves respect to its dignity and integrity. This is [stated] by the [Court of Justice of the European Union] in the Brüstle case, which defines the human embryo as the beginning of the development of the human being. To ensure consistency in areas of its competence where the life of the human embryo is at stake, the [Union] should establish a ban and end the financing of activities which presuppose the destruction of human embryos, in particular in the areas of research, development aid and public health.’14In an annex to the application for registration of the ECI at issue, three amendments to EU acts, existing or in prospect, were proposed. First, the organisers of that ECI requested that there be inserted a new article into Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), prohibiting any European Union budget allocation being made for the funding of activities that destroy human embryos, or that presume their destruction. Second, they proposed the insertion of a new subparagraph in Article 16(3) of the Proposal for a Regulation of the European Parliament and of the Council establishing Horizon 2020 — The Framework Programme for Research and Innovation (2014-2020) (COM(2011) 809 final), excluding from all funding under that framework programme research activities that destroyed human embryos, including those aimed at obtaining stem cells, and research involving the use of human embryonic stem cells in subsequent steps to obtain them. Third, they proposed the addition of a paragraph 5 to Article 2 of Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (OJ 2006 L 378 p. 41), providing, in essence, that EU financial assistance should not be used, directly or indirectly, to fund abortions.15The provisions of the Treaties deemed relevant by the organisers of the ECI at issue were Articles 2 and 17 TEU and to Article 4(3) and (4) and Articles 168, 180, 182, 209, 210 and 322 TFEU.16On 28 February 2014, pursuant to Article 9 of Regulation No 211/2011, the organisers of the ECI at issue submitted it to the Commission.17On 9 April 2014, pursuant to Article 10(1)(b) of Regulation No 211/2011, the Commission’s representatives received the organisers of the ECI at issue. On 10 April 2014, pursuant to Article 11 of that regulation, the organisers of the ECI at issue were given the opportunity to present it at a public hearing organised at the European Parliament.18On 28 May 2014 the Commission, on the basis of Article 10(1)(c) of that regulation, adopted the contested communication, which has four parts, and in which the Commission stated that it would take no action on the ECI at issue.19In Section 1 of that communication, headed ‘Introduction’, the Commission set out, inter alia, the subject matter and objectives of the ECI at issue and the three proposed legislative amendments.20In Section 2 of that communication, headed ‘State of play’, the Commission, first, described the current state of EU legislation in relation to the protection of human dignity and specified the competences of the Union in that regard and stated, inter alia, that whether scientific research making use of human embryos may be carried out and funded by the European Union is an issue that has not been addressed by the Court’s case-law.21Second, the Commission set out the state of human embryonic stem cell research (‘hESC research’), the competences and activities of the EU Member States in that field, and the mechanisms put in place by the Union to ensure respect for human dignity in the funding of that research. In that regard, with respect to the competences of the Union, the Commission stated that hESC research operates within a strict ethical framework comprising a ‘triple lock’ system which entails that (i) EU projects must follow the laws of the country in which the research is carried out; (ii) all projects must be scientifically validated by peer review and must undergo rigorous ethical review; and (iii) EU funds may not be used for derivation of new stem cell lines, or for research that involves the destruction of human embryos.22Last, the Commission set out the competences and activities of the Member States and of the Union with respect to maternal and child health in the context of development cooperation.23In Section 3 of the contested communication, headed ‘Assessment of the [ECI] Requests’, the Commission set out the reasons why it did not intend to take any of the actions proposed by the organisers of that ECI.24First, the Commission stated that the Financial Regulation already ensured that all EU expenditure, including that in the areas of research, development cooperation and public health, must respect human dignity, the right to life, and the right to the integrity of the person.25Second, the Commission stated that the provisions of the Horizon 2020 framework programme on hESC research already addressed a number of important requests of the organisers of the ECI at issue, notably the request that the European Union should not fund the destruction of human embryos and that appropriate controls be put in place.26Last, the Commission stated that a prohibition on the funding of abortions in developing countries, as advocated by the organisers of the ECI at issue, would constrain the Union’s ability to achieve the objectives set in the area of development cooperation.27Section 4 of the contested communication, headed ‘Conclusions’, contains a summary of the arguments set out in the preceding sections of that communication. The procedure before the General Court and the judgment under appeal 28By application lodged at the Registry of the General Court on 25 July 2014, the entity known as ‘European Citizens’ Initiative One of Us’ and the seven natural persons who are the organisers of the ECI at issue and who form its citizens’ committee brought an action seeking the annulment of the contested communication and, in the alternative, the annulment of Article 10(1)(c) of Regulation No 211/2011.29By order of 26 November 2015, One of Us and Others v Commission (T‑561/14, not published, EU:T:2015:917), the General Court dismissed that action as being inadmissible in so far as it was directed against Article 10(1)(c) of that regulation. The Parliament and the Council, since they could no longer be considered to be defendants in the proceedings, were, as they requested, granted leave to intervene by decision of the President of the First Chamber of the General Court of 30 November 2015.30By the judgment under appeal the General Court dismissed the action.31After the General Court held, in paragraphs 53 to 65 of that judgment, that the action was inadmissible in so far as it had been brought by the entity known as European Citizens’ Initiative One of Us, that court examined, in paragraphs 68 to 101 of that judgment, the question whether the contested communication could be challenged under Article 263 TFEU. The General Court held, in paragraph 77 of that judgment, that that communication produced binding legal effects such as to affect the interests of the appellants, by bringing about a distinct change in their legal position. The General Court stated in that regard that, under Article 10(1)(c) of Regulation No 211/2011, the Commission was obliged to set out in a communication, such as the contested communication, its legal and political conclusions on the citizens’ initiative submitted. The General Court accordingly held that the action directed against that communication was admissible.32As regards examination of the substance of the action, the General Court rejected, in paragraphs 105 to 118 of the judgment under appeal, the first plea in law, claiming an infringement of Article 10(1)(c) of Regulation No 211/2011 on account of a failure to submit a proposal for a legal act in response to the ECI at issue, on the ground that the Commission has, by virtue of both that provision and Articles 11 TEU and 24 TFEU, the power to take action in response to an ECI. The General Court stated in that regard that the Treaties confer on the Commission a near-monopoly of legislative initiative.33For the same reasons the General Court rejected, in paragraphs 122 to 125 of the judgment under appeal, the second plea in law, claiming an infringement of Article 11(4) TEU.34The General Court rejected, in paragraphs 128 to 132 of that judgment, the third plea in law, claiming that the Commission had infringed Article 10(1)(c) of Regulation No 211/2011, read in the light of recital 20 of that regulation, by reason of failing to set out, separately, its legal and political conclusions on the ECI at issue. In that regard, the General Court stated that, while that recital states that the Commission is to set out separately its legal and political conclusions, that recital cannot be understood as imposing such an obligation on the Commission, since the preamble of an EU act has no binding legal force. Accordingly, since it is not stated in the wording of Article 10 of that regulation that the Commission is subject to such an obligation, the Commission cannot be criticised for not having set out its conclusions separately. For the sake of completeness, the General Court added that, even if such an obligation existed, a breach of that obligation could not have entailed the annulment of the contested communication.35The General Court also rejected, in paragraphs 141 to 158 of the judgment under appeal, the fourth plea in law, claiming an infringement of the obligation to state reasons, on the ground that the information provided in the contested communication was sufficient to enable the appellants to understand why the Commission declined to take any action in response to the ECI at issue. Further, the General Court held that the argument that the Commission had infringed the obligation to state reasons by failing to define or clarify the legal status of the human embryo in the contested communication was ineffective and had to be rejected, since the sufficiency of the statement of reasons had to be assessed solely in relation to the objective of the ECI at issue.36Last, the General Court rejected, in paragraphs 168 to 183 of the judgment under appeal, the fifth plea in law, concerning errors of assessment made by the Commission in the contested communication.37The General Court held in that regard that, given the broad discretion enjoyed by the Commission in the exercise of its power of legislative initiative, the Commission’s decision not to submit a proposal for a legal act to the legislature had to be subject to limited review.38The General Court held, first, in paragraphs 172 to 175 of the judgment under appeal, that the Commission had not committed a manifest error of assessment, considering that the judgment of the Court of Justice of 18 October 2011, Brüstle (C‑34/10, EU:C:2011:669), was irrelevant for the purposes of assessing the lawfulness of the contested communication, since that judgment concerns only the question whether biotechnological inventions are patentable and does not deal with the issue of the funding of research activities involving or presupposing the destruction of human embryos.39The General Court held, second, in paragraph 176 of the judgment under appeal, that the appellants had not demonstrated the existence of a manifest error of assessment in relation to the ethical approach of the Commission to the subject of hESC research. The General Court also rejected, on the ground that it was insufficiently substantiated, the appellants’ claim that that research was unnecessary.40Third, the General Court held, in paragraph 180 of the judgment under appeal, that the Commission had again not committed a manifest error of assessment in relying on a publication of the World Health Organisation, which states that there is a link between unsafe abortions and maternal mortality, to support the conclusion that a prohibition on funding abortions would constrain the Union’s ability to attain the objective of reducing maternal mortality.41Fourth and last, the General Court held, in paragraph 182 of the judgment under appeal, that the Commission had not committed any manifest error of assessment in deciding not to submit to the EU legislature a proposed amendment to the Financial Regulation designed to prohibit the funding of activities that are contrary to human dignity and human rights. Forms of order sought by the parties before the Court of Justice 42The appellants claim that the Court should:–set aside the judgment under appeal;annul the contested communication, andorder the Commission to pay the costs.43The Commission contends that the Court should:dismiss the appeal; andorder the appellants to pay the costs. The appeal 44In support of their appeal, the appellants put forward five grounds of appeal. The first ground of appeal Arguments of the parties 45By their first ground of appeal, the appellants claim that the General Court erred in law when it rejected, in paragraphs 118 and 125 of the judgment under appeal, their argument in relation to the interpretation of Article 11(4) TEU and Regulation No 211/2011. They consider that the General Court, in holding, in paragraphs 111 and 113 of the judgment under appeal, that the near-monopoly of legislative initiative enjoyed by the Commission was not affected by the introduction of the ECI mechanism, failed to appreciate the specific character of that mechanism.46The appellants consider that, while Article 17(2) TEU provides that Union legislative acts may only be adopted on the basis of a Commission proposal, that provision cannot however be interpreted as conferring on the Commission an unlimited discretion with respect to proposals for legislation relating to a matter forming the subject of a citizens’ initiative that has obtained the required support, within the meaning of Article 2(l) of Regulation No 211/2011. The appellants infer from the judgment of 14 April 2015, Council v Commission (C‑409/13, EU:C:2015:217), that the Commission’s discretionary power of legislative initiative has to reach its limits where the Commission decides not to submit a proposal for a legislative act in response to an ECI, and the exercise of its discretion in order to impede the objective of an ECI must then be considered to be unlawful.47The appellants maintain that, first, reasons must be stated for the Commission’s decision not to submit a proposal for legislation in response to an ECI, and those reasons must be supported by cogent evidence and must not be contrary to the objective of the ECI concerned. Second, they consider that the Commission’s discretion must be exercised with due regard for general policies and public policy objectives, subject to judicial review. According to the appellants, the General Court did not either address or identify the public policy objectives of the ECI at issue and the interdependence of Title III of the EU Treaty and Article 24 TFEU stemming from Regulation No 211/2011.48The appellants consider that the General Court erred in law when it found, in paragraph 124 of the judgment under appeal, that the sole objective of the ECI mechanism was to ‘invite’ the Commission to submit a proposal. Since Article 11(4) TEU does not provide that only those who have collected at least one million signatures are allowed to ‘invite’ the Commission to take appropriate measures, the appellants consider that any person or any group can ‘invite’ the Commission to take such measures. In the view of the appellants, given the nature of an ECI, and the costs and organisational difficulties involved, an ECI cannot be treated as no more than a mere ‘invitation’ to the Commission to take appropriate measures.49The appellants claim that the interpretation of the ECI mechanism adopted by the General Court in paragraphs 111, 113 and 124 of the judgment under appeal deprives the ECI mechanism of any effectiveness and results in its failing to address the democratic deficit of the European Union.50The appellants consider that, taking into consideration the power of the Council and Parliament to influence the Commission, the General Court ought to have recognised that a group of at least one million citizens who have supported an ECI have parity with those institutions. They consider that the Commission’s power to take action or not take action in response to an ECI must depend on assessment criteria compliance with which must be subject to judicial review. In the view of the appellants, the findings made by the General Court in the judgment under appeal are incoherent, since the very existence of review of the lawfulness of the contested communication, carried out by the General Court in that judgment, supports their argument that the Commission is not free to take action or not take action in response to an ECI.51Last, the appellants maintain that the General Court erred in law in considering that Regulation No 211/2011 was to be interpreted as permitting the Commission to deprive citizens of their right, within the framework of an ECI, to have their proposals for legislative acts examined by the Parliament.52The Commission states that it claimed before the General Court that the contested communication did not constitute a challengeable act, under Article 263 TFEU. The Commission considers that, as regards the substance, the first ground of appeal should be rejected. Findings of the Court 53Article 11(4) TEU, introduced by the Treaty of Lisbon, provides that Union citizens may, subject to certain conditions, take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where those citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 23).54The right to undertake an ECI constitutes, as does, in particular, the right to petition the Parliament, an instrument concerning the right of citizens to participate in the democratic life of the Union, provided for in Article 10(3) TEU, in that it allows them to apply directly to the Commission in order to submit to it a request inviting it to submit a proposal for a legal act of the Union, for the purposes of the application of the Treaties (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 24).55In accordance with the first paragraph of Article 24 TFEU, the procedures and conditions for submitting an ECI have been specified in Regulation No 211/2011.56By their first ground of appeal, the appellants maintain that the General Court erred in law in holding that the Commission was not obliged, under Article 11(4) TEU and Regulation No 211/2011, to submit a proposal for a legislative act in response to the ECI at issue.57In that regard, it must, in the first place, be noted that it is clear from the very wording of Article 11(4) TEU that an ECI is designed to ‘invite’ the Commission to submit an appropriate proposal for the purpose of implementing the Treaties, and not, as claimed by the appellants, to oblige that institution to take the action or actions envisaged by the ECI concerned. That textual interpretation is confirmed by the wording of Article 2(1) of Regulation No 211/2011, which defines a ‘citizens’ initiative’ as an initiative submitted to the Commission, in accordance with that regulation, ‘inviting’ the Commission to submit a proposal such as that specified in Article 11(4) TEU. It is clear moreover from the wording of Article 10(1)(c) and from recital 20 of that regulation that, when the Commission receives an ECI, it is to set out the action that it intends to take, if any, and its reasons for taking or not taking action, which confirms that the submission by the Commission of a proposal for an EU act in response to an ECI is optional.58As regards, in the second place, the background to the ECI mechanism, it cannot, as argued by the Commission, be inferred from the judgment of 14 April 2015, Council v Commission (C‑409/13, EU:C:2015:217), which concerned the withdrawal, by the Commission, of a proposal for an EU act during the legislative process, that the Commission is compelled to submit a proposal for an EU act in response to an ECI.59On the contrary, as the Court stated in that judgment, both Article 17(2) TEU and Article 289 TFEU confer on the Commission the power of legislative initiative, which means that it is for the Commission to decide whether or not to submit a proposal for a legislative act, except in the situation where it has an obligation under EU law to submit such a proposal. By virtue of that power, if a proposal for a legislative act is submitted, it is also for the Commission, which, in accordance with Article 17(1) TEU, is to promote the general interest of the European Union and take appropriate initiatives to that end, to determine the subject matter, objective and content of that proposal (judgment of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraph 70).60That power of legislative initiative conferred on the Commission is one of the expressions of the principle of institutional balance, characteristic of the institutional structure of the European Union, which means that each of the institutions must exercise its powers with due regard for the powers of the other institutions (see, to that effect, judgment of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraph 64 and the case-law cited).61In that regard, it must be observed that, as stated in recital 1 of Regulation No 211/2011, the ECI is intended to confer on Union citizens a right comparable to that held, pursuant to Articles 225 and 241 TFEU respectively, by the Parliament and the Council, to request the Commission to submit any appropriate proposal for the purpose of implementing the Treaties. It is apparent from those two articles that the right thus conferred on the Parliament and the Council does not undermine the Commission’s power of legislative initiative, and the Commission remains free not to submit a proposal provided that it informs the institution concerned of the reasons. Consequently, an ECI submitted on the basis of Article 11(4) TEU and Regulation No 211/2011 can likewise not affect that power.62In addition, the appellants’ argument that the Commission is obliged, in all cases, to take action in response to proposals in an ECI that has been registered and that has obtained the required support cannot be reconciled with the discretion enjoyed by the Commission, under Article 17(1) TEU, in its task of promoting the general interest of the Union and taking appropriate initiatives to that end, and with the general obligation incumbent on the Commission, under Article 17(3) TEU, to be completely independent in the exercise of its power of initiative.63Accordingly, the General Court was correct in holding, in paragraph 111 of the judgment under appeal, that the near-monopoly of legislative initiative conferred by the Treaties on the Commission is not affected by the right to an ECI provided for in Article 11(4) TEU.64In the third place, as regards the appellants’ argument that the interpretation of the ECI mechanism by the General Court in the judgment under appeal deprives that mechanism of any effectiveness, it must be recalled that, as stated in Article 10(1) TEU, the functioning of the Union is to be based on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the Union is founded.65That system of representative democracy was complemented, with the Treaty of Lisbon, by instruments of participatory democracy, such as the ECI mechanism, the objective of which is to encourage the participation of citizens in the democratic process and to promote dialogue between citizens and the EU institutions. However, as stated, in essence, by the Advocate General in point 71 of his Opinion, that objective fits within the pre-existing institutional balance and is pursued within the limits of the powers attributed to each EU institution by the Treaties, the authors of which did not intend, by means of the introduction of that mechanism, to deprive the Commission of the power of legislative initiative conferred on it by Article 17 TEU.66That said, the fact that the Commission is not obliged to take action in response to an ECI does not mean that such an initiative lacks any effectiveness.67An ECI which has been registered in accordance with Article 4(2) of Regulation No 211/2011 and which complies with all the procedures and conditions laid down in that regulation imposes a series of specific obligations on the Commission, as set out in Articles 10 and 11 of that regulation.68First, as soon as it receives an ECI, the Commission must, pursuant to Article 10(1)(a) of that regulation, publish it without delay in the prescribed register, in order to inform the public of the matters appearing in that ECI with respect to which the citizens consider that an EU legal act is required. Second, under Article 10(1)(b), the Commission is obliged to receive, at an appropriate level, the organisers of an ECI that has collected the support of at least a million signatories, in order to allow them to explain in detail the matters raised by that ECI. Last, Article 10(1)(c) provides that the Commission is to set out in a communication its legal and political conclusions on the ECI, the action it intends to take, if any, and its reasons for taking or not taking that action.69It is stated also in Article 11 of Regulation No 211/2011 that the organisers of an ECI which satisfies the conditions laid down in Article 10(1)(a) and (b) of that regulation have the opportunity to present that initiative at a public hearing, organised at the Parliament, if appropriate together with other institutions and bodies of the Union that may wish to participate, at which the Commission is represented, which ensures that they have privileged access to the EU institutions.70The General Court was therefore correct in holding, in paragraph 124 of the judgment under appeal, that a rejection of the appellants’ argument that the Commission is obliged to take action in response to the ECI at issue does not deprive the ECI mechanism of all effectiveness. As the Advocate General observed, in point 78 of his Opinion, the particular added value of the ECI mechanism resides not in certainty of outcome, but in the possibilities and opportunities that it creates for Union citizens to initiate debate on policy within the EU institutions without having to wait for the commencement of a legislative procedure.71In the light of the foregoing, the General Court was justified in holding, in paragraphs 105 to 118 of the judgment under appeal, that the interpretation of Article 10(1)(c) of Regulation No 211/2011 advocated by the appellants is wrong in law. The General Court was also correct to reject, in paragraphs 122 to 125 of the judgment under appeal, the appellants’ arguments that Article 11(4) TEU imposes an obligation on the Commission to initiate a legislative procedure in response to an ECI that has been registered and that has the required support.72It follows that the first ground of appeal must be rejected as being unfounded. The second ground of appeal 73By their second ground of appeal, the appellants claim that the General Court erred in law in holding, in paragraphs 128 and 132 of the judgment under appeal, that the Commission was not obliged, under Article 10(1)(c) of Regulation No 211/2011, to set out separately its legal and political conclusions on the ECIs submitted to it. The appellants maintain that that provision must be read in the light of recital 20 of that regulation, where it is stated that the Commission should set out its ‘legal’ and ‘political’ conclusions separately.74The Commission considers, expressing its support for the finding of the General Court that the preamble of an EU act has no binding legal force and cannot be relied on as a ground for derogating from a provision or for interpreting that provision in a manner that is clearly contrary to its wording, that the second ground of appeal must be rejected.75The preamble of an EU act may explain the content of the provisions of that act (see, to that effect, judgment of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 76). As stated by the Advocate General in point 93 of his Opinion, the recitals of an EU act constitute important elements for the purposes of interpretation, which may clarify the intentions of the author of that act.76However, the preamble to an EU act has no binding legal force and cannot be relied on as a ground either for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner that is clearly contrary to their wording (see, to that effect, judgment of 24 November 2005, Deutsches Milch-Kontor, C‑136/04, EU:C:2005:716, paragraph 32 and the case-law cited).77In this case, the General Court recalled, in paragraph 128 of the judgment under appeal, the settled case-law on the legal force of a preamble, and then, in paragraphs 129 and 130 of that judgment, held that the Commission was not subject to an obligation to set out separately its legal and political conclusions, since that obligation, which appears in recital 20 of Regulation No 211/2011, is not reproduced in Article 10(1)(c) of that regulation. For the sake of completeness, the General Court added, in paragraph 131 of the judgment under appeal, that, even if the Commission were obliged, under that provision, to set out separately its legal and political conclusions, that obligation would be purely formal, and consequently its breach would not result in the annulment of the contested communication.78It must be observed that the only respect in which the wording of Article 10(1)(c) of Regulation No 211/2011 and that of recital 20 of that regulation differ is that the latter recital alone makes reference to the Commission setting out ‘separately’ its legal and political conclusions. That reference thus serves to clarify the obligation incumbent on the Commission under that provision.79In that regard, the word ‘separately’, used in recital 20 of that regulation, must be understood as meaning that both the legal conclusions and the political conclusions of the Commission must appear in the communication relating to the ECI at issue in such a way as to ensure that the legal and political nature of the reasons contained in that communication can be understood.80However, that word cannot be understood as imposing an obligation to make a formal separation of the legal conclusions, on the one hand, and the political conclusions, on the other, an obligation the breach of which would incur the penalty of annulment of the communication concerned.81In this case, as also stated by the Advocate General in point 104 of his Opinion, it is clear from paragraphs 13 to 30 of the judgment under appeal that the contested communication satisfies the requirement mentioned in paragraph 79 of the present judgment.82It follows that the argument pursued by the appellants in the second ground of appeal cannot, in any event, succeed.83Consequently, the second ground of appeal must be rejected as being ineffective. The third ground of appeal 84By their third ground of appeal, the appellants claim that the General Court erred in law, in paragraph 170 of the judgment under appeal, in holding that the contested communication had to be subject to limited review by the General Court, restricted to manifest errors of assessment. They consider, first, that the General Court relied on case-law that is not applicable to the ECI mechanism and, second, that the General Court offered no criterion by which errors that are ‘manifest’ can be distinguished from errors that are not.85The appellants argue, more specifically, that the General Court erred in accepting that the Commission, when it submits a communication in response to an ECI, has a broad discretion comparable to that which it has in the area of socio-economic policy. They add that the General Court did not state the reasons why it relied, by analogy, on the judgment of 14 July 2005, Rica Foods v Commission (C‑40/03 P, EU:C:2005:455), though that judgment is not transposable to the ECI mechanism.86The Commission contends that the third ground of appeal is unfounded.87The General Court held, in paragraph 169 of the judgment under appeal, that the Commission, in exercising its powers of legislative initiative, must be allowed broad discretion, in so far as, through that exercise, it is called upon, pursuant to Article 17(1) TEU, to promote the general interest of the Union, carrying out, as necessary, the difficult task of reconciling divergent interests. Consequently, the General Court considered, in paragraph 170 of that judgment, that the contested communication should be subject to limited judicial review.88In that regard, as has been stated in the examination of the first ground of appeal, the Commission’s decision not to take action in response to an ECI which has been registered and which has collected the required support is part of the exercise, by that institution, of its power of legislative initiative conferred in Article 17 TEU.89Since, as rightly stated by the General Court in paragraph 169 of the judgment under appeal, the Commission has, in the exercise of that power, a broad discretion, the General Court was also correct to hold, in paragraph 170 of that judgment, that the contested communication was subject to limited judicial review, and not to full review as claimed by the appellants.90It must, moreover, be made clear in that regard that while it is true, as pointed out by the Commission, that the Court held, in the judgment of 9 December 2014, Schönberger v Parliament (C‑261/13 P, EU:C:2014:2423, paragraph 24), that a decision of the Parliament concerning the action to be taken in response to a petition meeting the conditions laid down in Article 227 TFEU is not amenable to review by the EU Courts, a communication from the Commission adopted under Article 10(1)(c) of Regulation No 211/2011 is, however, to be distinguished from such a decision in various respects.91Unlike such a petition, an ECI that is registered on the basis of Article 4(2) of Regulation No 211/2011 is subject, in accordance with that regulation, to strict conditions and to specific procedural safeguards. Further, while a decision of the Parliament of the kind mentioned in the preceding paragraph falls within a discretion ‘of a political nature’ (judgment of 9 December 2014, Schönberger v Parliament, C‑261/13 P, EU:C:2014:2423, paragraph 24), it is clear from Article 10(1)(c) of that regulation that the Commission is obliged to set out, in a communication, its conclusions, both legal and political, on the ECI concerned, the action it intends to take, if any, and its reasons for taking or not taking that action.92The aim of those requirements is not only to inform, in a clear, comprehensible and detailed manner, the organisers of an ECI of the Commission’s position on their initiative, but, also to enable the EU Courts to review the communications of the Commission adopted in accordance with Article 10(1)(c) of Regulation No 211/2011.93As regards the extent of that review, the General Court held, in paragraph 170 of the judgment under appeal, that the aim of that review is to determine, not only whether the reasons stated in the contested communication are sufficient, but also whether that communication is vitiated by, inter alia, manifest errors of assessment.94In that regard, it must, first, be recalled that the obligation to state reasons must apply, as a general rule, to all EU acts that produce legal effects (see, to that effect, judgment of 25 October 2017, Commission v Council(WRC‑15), C‑687/15, EU:C:2017:803, paragraph 52). The statement of reasons must disclose, clearly and unequivocally, the reasoning of the institution that is the author of the measure, in such a way as to enable, on the one hand, interested parties to ascertain the reasons for the measure in order to defend their rights, and, on the other hand, the EU Courts to exercise their power to review the legality of that decision (see, to that effect, judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 28).95Second, where the EU institutions enjoy, as the Commission does in this case, a broad discretion and, in particular, when they are required to make choices that are, in particular, of a political nature and to undertake complex assessments, judicial review of the assessments that underpin the exercise of that discretion must consist in determining the absence of manifest errors (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraphs 123 and 124 and the case-law cited).96Accordingly, the General Court did not err in law in holding, in paragraphs 169 and 170 of the judgment under appeal, that the contested communication falls within the exercise by the Commission of its broad discretion and must, consequently, be subject to limited judicial review, with the aim of determining, inter alia, the sufficiency of its statement of reasons and the absence of manifest errors of assessment.97It follows that the third ground of appeal must be rejected as being unfounded. The fourth ground of appeal 98By their fourth ground of appeal, the appellants claim that the General Court erred in law when it undertook a limited review of the Commission’s discretion and, further, carried out an incomplete review of the contested communication.99More specifically, the appellants argue that the General Court, in paragraphs 159 to 165 of the judgment under appeal, identified the alleged errors of assessment, and restricted its review, in paragraphs 166 to 177 of that judgment, to determining whether such errors were manifest errors. However, according to the appellants, it is clear from paragraphs 172 to 183 of the judgment under appeal that the General Court carried out that review only with respect to some of the alleged errors of assessment.100In that regard, the appellants argue, in the first place, that the General Court erred in law by failing to identify an inconsistency between the prohibition, laid down in the judgment of 18 October 2011, Brüstle (C‑34/10, EU:C:2011:669), on patenting inventions which involve the destruction of human embryos and the funding of research in relation to such inventions and, in addition, by failing to conclude from that judgment that the human embryo should be recognised to be a human being. The appellants consider that paragraphs 33 and 34 of that judgment establish human dignity as a legal principle that takes precedence over the law of patents and that must also be ‘taken into account in order to rule on the economic and financial contribution of the Union to the destruction of human embryos’.101In the second place, the appellants consider that the General Court failed to declare that the Commission was obliged to establish in advance the legal status of a human embryo, in order to be able to strike a balance between the interests of hESC research and the dignity of the human embryo. In their opinion, if the Commission had recognised the human dignity of the embryo, that would have precluded it from seeking to balance that dignity and any competing interest of society, since the very notion of human dignity prohibits such balancing.102In the third place, as regards hESC research, the appellants argue that the assertion that the ‘triple lock’ system constitutes an ethically sound criterion for the assessment of research projects is manifestly misconceived, since such a system does not prevent the funding of illegal research projects and even offers an incentive to the Member States to lower their ethical standards. The appellants maintain that the finding made by the General Court, in paragraph 176 of the judgment under appeal, that the ethical approach of the Commission, which is different from that of the ECI at issue, is not vitiated by a manifest error of assessment, constitutes an error of law. According to the appellants, it is not the role of the General Court to determine the merits of competing socio-ethical interests since such an exercise is political in nature, not a matter of law. The appellants add that the review carried out by the General Court is incomplete, in that it did not examine all the alleged errors of assessment. In that regard, they claim that the General Court failed to examine the manifestly erroneous assertions of the Commission concerning the ‘triple lock’ system, and did not offer any additional observations in relation to such assertions.103In the fourth place, the appellants claim that the assertion, unaccompanied by any evidence in that regard, that the provision of abortions through funding from the EU budget reduces abortions is manifestly paradoxical.104In the fifth place, the appellants claim that the General Court, in paragraph 164 of the judgment under appeal, misrepresented their arguments, since those arguments related, in reality, to the fact that the Commission had wrongly characterised the commitments made in the context of the objectives of the Millennium Development Goals (‘MDGs’) and the International Conference on Population and Development (‘ICPD’) Programme of Action as constituting binding legal obligations.105The Commission contends that the fourth ground of appeal should be rejected as being unfounded.106First, it is necessary to reject the appellants’ argument that the General Court erred when it found, in paragraphs 173 to 175 of the judgment under appeal, that the issue whether scientific research involving the use of human embryos can be financed by EU funds is clearly distinct from the issue that led to the delivery of the judgment of 18 October 2011, Brüstle (C‑34/10, EU:C:2011:669).107As is clear from paragraph 40 of that judgment, the Court stated that it is not the purpose of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13), the interpretation of which was at issue in that judgment, to regulate the use of human embryos in the context of scientific research, the purpose of that directive being limited to the patentability of biotechnological inventions (see also, to that effect, judgment of 18 December 2014, International Stem Cell, C‑364/13, EU:C:2014:2451, paragraph 22). The judgment of 18 October 2011, Brüstle (C‑34/10, EU:C:2011:669), moreover, contains no finding by the Court that scientific research making use of human embryos could under no circumstances be funded by the Union.108Accordingly, since that argument is based on a misreading of the judgment of 18 October 2011, Brüstle (C‑34/10, EU:C:2011:669), the General Court committed no error in law in holding that that judgment could not be relied on by the appellants to demonstrate an inconsistency in the approach of the Commission with respect to the use of human embryos in scientific research.109Second, the appellants’ argument in relation to the obligation to clarify the legal status of a human embryo is directed, as stated by the Advocate General in point 136 of his Opinion, against paragraph 156 of the judgment under appeal, which concerns the fourth plea in law relied on before the General Court, claiming a breach of the Commission’s obligation to state reasons.110That being the case, and besides the fact that that argument does no more than repeat an argument presented in the procedure before the General Court to challenge the contested communication, that argument cannot properly support the fourth ground of appeal, which concerns the General Court’s failure to identify alleged manifest errors of assessment committed by the Commission in that communication.111In the third place, as regards the arguments in relation to hESC research, claiming that the General Court determined, in paragraphs 176 and 177 of the judgment under appeal, the merits of competing socio-ethical interests, it must be said that those arguments are based on a misreading of the judgment under appeal.112It is clear from paragraph 176 of the judgment under appeal that the General Court set out the ethical approaches in relation to hESC research respectively followed in the ECI at issue and by the Commission. The General Court held that the Commission’s approach was not vitiated by a manifest error of assessment. Further, in paragraph 177 of that judgment, the General Court rejected as being insufficiently substantiated the appellants’ argument that there are solutions other than hESC research which, they claim, render that research redundant.113In so proceeding, the General Court did not engage in an examination of the respective merits of competing socio-ethical approaches. The General Court merely determined that the Commission, in its choice of the approach it decided to adopt, had not committed a manifest error of assessment.114It follows that the appellants’ arguments in relation to hESC research must be rejected as being unfounded.115In the fourth place, as regards the argument in relation to the alleged error committed by the General Court in paragraphs 179 and 180 of the judgment under appeal, where it is stated that the provision of abortion services funded from the EU budget reduces abortions, it is clear that that argument is based on a misreading of the judgment under appeal.116In paragraph 180 of the judgment under appeal, the General Court correctly stated that, in the contested communication, the Commission, relying on a World Health Organisation publication, had mentioned the fact that improving the safety of health services associated with, inter alia, abortion helps to reduce maternal mortality and maternal illness, one causal factor being the practice of unsafe abortions.117Consequently, the General Court was correct to hold that the Commission had not committed any manifest error of assessment in considering that EU funding of a number of safe and effective health services, including abortion services, contributed to a reduction in the number of unsafe abortions and, therefore, in the risk of maternal mortality and maternal illness. It follows that the appellants’ argument must be rejected as being manifestly unfounded.118In the fifth place, as regards the contention that the arguments of the appellants as stated in paragraph 164 of the judgment under appeal, in relation to the MDGs and the IPCD Programme of Action, were misrepresented, suffice it to state, as observed by the Advocate General in point 146 of his Opinion, that that argument cannot, in any event, succeed when there is no assertion in the contested communication that the MDGs and the IPCD Programme of Action contain binding legal obligations.119It follows from all the foregoing considerations that the fourth ground of appeal must be rejected. The fifth ground of appeal 120By their fifth ground of appeal, the appellants claim that the General Court erred in law in stating, in paragraph 156 of the judgment under appeal, that there was no need to clarify the legal status of the human embryo for the purpose of rejecting the three proposals for the amendment of EU acts, existing or in prospect, suggested by the ECI at issue. According to the appellants, the objective of the ECI at issue did not concern solely the adoption of the three measures suggested to Commission, but primarily concerned the legal protection of the dignity, right to life and right to integrity of every human being from the moment of conception. The appellants consider that the Commission was obliged to cooperate with the organisers of the ECI at issue and to submit a proposal for a legislative act in response to it. The General Court erred in law in failing to take into account the specific subject matter of that ECI where it held that the Commission was not obliged to take action in response to that ECI.121The Commission contends that the fifth ground of appeal must be rejected.122By the fifth ground of appeal, the appellants claim, in essence, that, in paragraph 156 of the judgment under appeal, the General Court was wrong to hold that the Commission was justified in understanding the objective of the ECI at issue to be solely that the Commission submit the three proposals for legislation that had been described in that ECI and not also that it produce a definition or clarification of the legal status of the human embryo.123In that regard, it is clear from Article 4(1) of Regulation No 211/2011 that the organisers of an ECI, if it is to be registered, must provide the information set out in Annex II to that regulation. The requirements set out in that annex include the title of the proposal for an ECI, the subject matter of that ECI, a description of its objectives, and the provisions of the Treaties considered relevant by the organisers for the proposed action. Further, the organisers may annex to their request for registration more detailed information on the subject and objectives of and background to that ECI, or a draft legal act.124In this case, it is clear from paragraphs 2 to 4 of the judgment under appeal that, on the basis of what was recorded in the Commission’s online register for the purposes of the registration of ECIs, first, the subject matter of the ECI at issue consisted in the legal protection of the dignity, right to life and right to integrity of every human being from conception, in the areas of EU competence in which such protection is of particular importance.125Second, that ECI had as an objective the protection of the dignity and integrity of the human embryo further to the judgment of 18 October 2011, Brüstle (C‑34/10, EU:C:2011:669), which, according to the organisers, defines the human embryo as the beginning of the process of development of a human being. The organisers stated, in that regard, that, in order to ensure consistency in the exercise of its competences, the European Union should prohibit and put an end to the funding of activities that involve the destruction of human embryos, particularly in the fields of research, development aid and public health.126Third, the organisers made reference to Articles 2 and 17 TEU, and to Article 4(3) and (4) and Articles 168, 180, 182, 209, 210 and 322 TFEU as relevant provisions.127The organisers of the ECI at issue had annexed to their request for registration three proposals for amendments to existing or proposed EU acts.128More specifically, as stated in paragraph 14 of the present judgment, the organisers requested (i) the insertion, in the Financial Regulation applicable to the EU budget, of a provision prohibiting the funding by the Union of activities that destroy human embryos or presuppose their destruction; (ii) the addition, in a proposed EU regulation on the establishment of a framework programme for research and innovation, of a provision excluding from all funding under that programme research activities that destroy human embryos, including those aimed at obtaining stem cells, and research involving the use of human embryonic stem cells in subsequent steps to obtain them; and (iii) the addition, in the EU legislation establishing a financing instrument for development cooperation, of a provision stating, in essence, that EU financial assistance should not be used, directly or indirectly, to finance abortions.129It follows from the foregoing that the General Court was right, in paragraph 156 of the judgment under appeal, to hold that the objective of the ECI at issue was to invite the Commission to submit three proposals for legislation consisting in amending existing or proposed EU acts, relating respectively to the EU budget, to research and innovation, and to development cooperation, and not to submit, in addition, a proposal aimed at the definition or clarification of the legal status of the human embryo.130Consequently, the fifth ground of appeal must be rejected and, therefore, the appeal must be dismissed. Costs 131In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.132Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.133Since the Commission has applied for costs and the appellants have been unsuccessful, the latter must be ordered to pay the costs of the Commission and to bear their own costs.On those grounds, the Court (Grand Chamber) hereby: 1. Dismisses the appeal; 2. Orders Mr Patrick Grégor Puppinck, Mr Filippo Vari, Ms Josephine Quintavalle, Ms Edith Frivaldszky, Mr Jakub Baltroszewicz, Ms Alicia Latorre Canizares and Mr Manfred Liebner to bear their own costs and to pay those incurred by the European Commission. LenaertsSilva de LapuertaPrechalVilarasReganRodinXuerebRossiJarukaitisJuhászIlešičMalenovskýPiçarraDelivered in open court in Luxembourg on 19 December 2019.A. Calot EscobarRegistrarK. LenaertsPresident( *1 ) Language of the case: English. | b76e5-3f0633d-4cb4 | EN |
The use of a protected work for the purposes of reporting current events does not, in principle, require a prior request for authorisation | 29 July 2019 ( *1 )(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information Society — Harmonisation of certain aspects of copyright and related rights — Article 5(3) — Exceptions and limitations — Scope — Article 5(3)(c) and (d) — Reporting of current events — Quotations — Use of hyperlinks — Lawfully making available to the public — Charter of Fundamental Rights of the European Union — Article 11 — Freedom of expression and of information)In Case C‑516/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), by decision of 27 July 2017, received at the Court on 25 August 2017, in the proceedings Spiegel Online GmbH v Volker Beck, THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Arabadjiev, M. Vilaras, T. von Danwitz, C. Toader, F. Biltgen and C. Lycourgos, Presidents of Chambers, E. Juhász, M. Ilešič (Rapporteur), L. Bay Larsen and S. Rodin, Judges,Advocate General: M. Szpunar,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 3 July 2018,after considering the observations submitted on behalf of:–Spiegel Online GmbH, by T. Feldmann, Rechtsanwalt,Mr Beck, by G. Toussaint, Rechtsanwalt,the German Government, by M Hellmann and J Techert, acting as Agents,the French Government, by E. de Moustier and D. Segoin, acting as Agents,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and T. Rendas, acting as Agents,the United Kingdom Government, by Z. Lavery and D. Robertson, acting as Agents, and by N. Saunders, Barrister,the European Commission, by H. Krämer, T. Scharf and J. Samnadda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 10 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 5(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).2The request has been made in proceedings between Spiegel Online, which operates the internet news portal Spiegel Online, and Mr Volker Beck, who was a member of the Bundestag (Federal Parliament, Germany) at the time when the referring court decided to make a reference to the Court, concerning Spiegel Online’s publication on its website of a manuscript by Mr Beck and of an article published in a book. Legal context European Union law 3Recitals 1, 3, 6, 7, 9, 31 and 32 of Directive 2001/29 state:‘(1)The [EC] Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.…(3)The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.(6)Without harmonisation at [EU] level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the internal market and legislative inconsistency. The impact of such legislative differences and uncertainties will become more significant with the further development of the information society, which has already greatly increased transborder exploitation of intellectual property. …(7)The [EU] legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. … [D]ifferences not adversely affecting the functioning of the internal market need not be removed or prevented.(9)Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.(31)A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. … In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.(32)This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public. … Member States should arrive at a coherent application of these exceptions and limitations …’4Under Article 1(1) of Directive 2001/29, ‘this Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society’.5Under the heading ‘Reproduction right’, Article 2 of that directive reads as follows:‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:(a)for authors, of their works;…’6Article 3 of the directive, under the heading ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides, in paragraph 1:‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’7Article 5 of the directive, under the heading ‘Exceptions and limitations’, provides, in paragraph 3(c) and (d), and in paragraph 5:‘3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:(c)reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;(d)quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ German law 8Under the heading ‘Reporting on current events’, Paragraph 50 of the Gesetz über Urheberrecht und verwandte Schutzrechte — Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273; ‘the UrhG’) provides:‘For the purposes of reporting on current events by broadcasting or similar technical means in newspapers, periodicals and other printed matter or other data carriers mainly devoted to current events, as well as on film, the reproduction, distribution and communication to the public of works which become perceivable in the course of these events shall be permitted to the extent justified by the purpose of the report.’9Under the heading ‘Quotations’, Paragraph 51 of the UrhG reads as follows:‘It shall be permissible to reproduce, distribute and communicate to the public a published work for the purpose of quotation so far as such use is justified to that extent by the particular purpose. This shall be permissible in particular where:1.subsequent to publication individual works are included in an independent scientific work for the purpose of explaining the contents;2.subsequent to publication passages from a work are quoted in an independent work;3.individual passages from a released musical work are quoted in an independent musical work.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 10Mr Beck had been a member of the Bundestag (Federal Parliament, Germany) since 1994 at the time when the referring court decided to make a reference to the Court. He is the author of a manuscript on criminal policy relating to sexual offences committed against minors. That manuscript was published under a pseudonym in an article to a book published in 1988. At the time of publication, the publisher changed the title of the manuscript and shortened one of its sentences. By letter of 5 May 1988, the author raised an objection with the publisher and called on him, to no avail, to indicate that fact expressly when the book was distributed. Over the following years, Mr Beck, who was criticised for the statements contained in the article, repeatedly contended that the meaning of his manuscript had been altered by the publisher of the book. Mr Beck has distanced himself from the content of that article from at least 1993.11In 2013, Mr Beck’s manuscript was discovered in certain archives and was put to him on 17 September 2013 when he was a candidate in parliamentary elections in Germany. The following day, Mr Beck provided various newspaper editors with that manuscript in order to show that it had been amended by the publisher for the purposes of the publication of the article in question. He did not, however, give consent for the editors to publish the manuscript and article. Instead, he personally published them on his own website accompanied across each page by the statement ‘I dissociate myself from this contribution. Volker Beck’. The pages of the article published in the book in question additionally bore the words: ‘[The publication of] this text is unauthorised and has been distorted by the publisher’s editing at its discretion of the heading and body of the text’.12Spiegel Online operates the internet news portal Spiegel Online. On 20 September 2013, it published an article in which it contended that, contrary to Mr Beck’s claim, the central statement appearing in his manuscript had not been altered by the publisher and therefore that he had misled the public over a number of years. In addition to the article, the original versions of the manuscript and book contribution were available for download by means of hyperlinks.13Mr Beck brought an action before the Landgericht (Regional Court, Germany) challenging the making available of complete texts of the manuscript and article on Spiegel Online’s website, which he considers to be an infringement of copyright. That court upheld Mr Beck’s action. After its appeal was dismissed, Spiegel Online brought an appeal on a point of law (Revision) before the referring court.14That court considers that the interpretation of Article 5(3)(c) and (d) of Directive 2001/29, read in the light of fundamental rights, in particular of freedom of information and of freedom of the press, is not obvious. It asks inter alia whether that provision allows any discretion for the purposes of its transposition into national law. It notes in that regard that, according to the case-law of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), national legislation which transposes an EU directive must be measured, as a rule, not against the fundamental rights guaranteed by the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany), of 23 May 1949 (BGBl 1949 I, p. 1), but solely against the fundamental rights guaranteed by EU law, where that directive does not allow the Member States any discretion in its transposition.15In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:Do the provisions of EU law on the exceptions or limitations [to copyright] laid down in Article 5(3) of Directive 2001/29 allow any discretion in terms of implementation in national law?(2)In what manner are the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account when determining the scope of the exceptions or limitations provided for in Article 5(3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and to communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29)?Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the press (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(3) of Directive 2001/29?(4)Is the making available to the public of copyright-protected works on the web portal of a media organisation to be excluded from consideration as the reporting of current events not requiring permission as provided for in Article 5(3)(c), second case, of Directive 2001/29, because it was possible and reasonable for the media organisation to obtain the author’s consent before making his works available to the public?(5)Is there no publication for quotation purposes under Article 5(3)(d) of Directive 2001/29 if quoted textual works or parts thereof are not inextricably integrated into the new text — for example, by way of insertions or footnotes — but are made available to the public on the Internet by means of a link in [Portable Document Format (PDF)] files which can be downloaded independently of the new text?In determining when a work has already been lawfully made available to the public within the meaning of Article 5(3)(d) of Directive 2001/29, should the focus be on whether that work in its specific form was published previously with the author’s consent?’ Consideration of the questions referred The first question 16As a preliminary matter, it should be noted, as is clear from paragraph 14 above, that the first question relates to the application by the referring court, for the purposes of disposing of the case in the main proceedings, of the rules on the reporting of current events and quotations, laid down respectively in Paragraphs 50 and 51 of the UrhG, which transpose Article 5(3)(c) and (d) of Directive 2001/29.17In that context, the referring court asks whether that provision of EU law allows the Member States discretion in its transposition, since, according to the case-law of the Bundesverfassungsgericht (Federal Constitutional Court), national legislation which transposes an EU directive must be measured, as a rule, not against the fundamental rights guaranteed by the Basic Law for the Federal Republic of Germany, but solely against the fundamental rights guaranteed by EU law, where that directive does not allow the Member States any discretion in its transposition.18Thus, by its first question, the referring court asks, in essence, whether Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation.19In that regard, it should be stated that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of that State (judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 59).20It should be noted in that connection that, since the transposition of a directive by the Member States is covered, in any event, by the situation, referred to in Article 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in which the Member States are implementing Union law, the level of protection of fundamental rights provided for in the Charter must be achieved in such a transposition, irrespective of the Member States’ discretion in transposing the directive.21That said, where, in a situation in which action of the Member States is not entirely determined by EU law, a national provision or measure implements EU law for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60, and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29).22Thus, it is consistent with EU law for national courts and authorities to make that application subject to the condition, emphasised by the referring court, that the provisions of a directive ‘allow [some] discretion in terms of implementation in national law’, provided that that condition is understood as referring to the degree of the harmonisation effected in those provisions, since such an application is conceivable only in so far as those provisions do not effect full harmonisation.23In the present case, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright and related rights, of which a number of provisions also disclose the intention of the EU legislature to grant a degree of discretion to the Member States in the implementation of the directive (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 57).24As is clear from recital 32 of Directive 2001/29, Article 5(2) and (3) of that directive sets out a list of exceptions and limitations to the exclusive rights of reproduction and of communication to the public.25In that regard, it is clear from the case-law of the Court that the scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation referred to in Article 5(2) or (3) of Directive 2001/29 must be determined on a case-by-case basis, in particular, according to the wording of that provision (see, to that effect, judgments of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 36; of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 16; and of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 27; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 116), the degree of the harmonisation of the exceptions and limitations intended by the EU legislature being based on their impact on the smooth functioning of the internal market, as stated in recital 31 of Directive 2001/29.26Under Article 5(3)(c), second case, and (d) of Directive 2001/29, the exceptions or limitations referred to are comprised respectively of ‘use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible’ and ‘quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose’.27As is clear from its content, that provision does not constitute full harmonisation of the scope of the exceptions or limitations which it contains.28It is clear, first, from the use, in Article 5(3)(c), second case, and (d) of Directive 2001/29 of the wording ‘to the extent justified by the informatory purpose’ and ‘in accordance with fair practice, and to the extent required by the specific purpose’ respectively, that, in the transposition of that provision and its application under national law, the Member States enjoy significant discretion allowing them to strike a balance between the relevant interests. Second, Article 5(3)(d) of that directive sets out, in respect of cases of permissible quotation, merely an illustrative list of such cases, as is clear from the use of the words ‘for purposes such as criticism or review’.29The existence of that discretion is supported by the legislative drafts which preceded the adoption of Directive 2001/29. Thus, it is stated in the Explanatory Memorandum to the Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society of 10 December 1997 (COM(97) 628 final), relating to the limitations which are now provided for, in essence, in Article 5(3)(c) and (d) of Directive 2001/29, that, in view of their more limited economic importance, those limitations are deliberately not dealt with in detail in the framework of the proposal, which only sets out minimum conditions for their application, and it is for the Member States to define the detailed conditions for their use, albeit within the limits set out by that provision.30Notwithstanding the foregoing considerations, the Member States’ discretion in the implementation of Article 5(3)(c), second case, and (d) of Directive 2001/29 is circumscribed in several regards.31First, the Court has repeatedly held that the Member States’ discretion in the implementation of the abovementioned exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 must be exercised within the limits imposed by EU law, which means that the Member States are not in every case free to determine, in an un-harmonised manner, the parameters governing those exceptions or limitations (see, to that effect, judgments of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 34; of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 104; and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 16; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 122).32The Court thus made clear that the option open to the Member States of implementing an exception or limitation to the harmonised rules laid down in Articles 2 and 3 of Directive 2001/29 is highly circumscribed by the requirements of EU law (see, to that effect, Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 126).33In particular, Member States may provide, in their law, for an exception or limitation referred to in Article 5(2) and (3) of Directive 2001/29 only if they comply with all the conditions laid down in that provision (see, by analogy, Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 123 and the case-law cited).34The Member States are also required, in that context, to comply with the general principles of EU law, which include the principle of proportionality, from which it follows that measures which the Member States may adopt must be appropriate for attaining their objective and must not go beyond what is necessary to achieve it (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 105 and 106).35Second, the Court has reaffirmed that the discretion enjoyed by the Member States in implementing the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 cannot be used so as to compromise the objectives of that directive that consist, as is clear from recitals 1 and 9 thereof, in establishing a high level of protection for authors and in ensuring the proper functioning of the internal market (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10,EU:C:2011:798, paragraph 107, and of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 34; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 124 and the case-law cited).36Nonetheless, it is also for the Member States, in effecting that implementation, to safeguard the effectiveness of the exceptions and limitations thereby established and to permit observance of their purpose (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 163, and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 23), in order to safeguard a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter, as stated in recital 31 of that directive.37Third, the Member States’ discretion in the implementation of the exceptions and limitations relevant to Article 5(2) and (3) of Directive 2001/29 is also circumscribed by Article 5(5) of the directive, which makes those exceptions or limitations subject to three conditions, namely that those exceptions or limitations may be applied only in certain special cases, that they do not conflict with a normal exploitation of the work and that they do not unreasonably prejudice the legitimate interests of the copyright holder (Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 125 and the case-law cited).38Lastly, fourth, as set out in paragraph 20 above, the principles enshrined in the Charter apply to the Member States when implementing EU law. It is therefore for the Member States, in transposing the exceptions and limitations referred to Article 5(2) and (3) of Directive 2001/29, to ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order (judgments of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46, and of 18 October 2018, Bastei Lübbe, C‑149/17, EU:C:2018:841, paragraph 45 and the case-law cited; see also, by analogy, judgment of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraphs 48 and 49 and the case-law cited).39In the light of the foregoing considerations, the answer to the first question is that Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. The third question 40By its third question, which it is appropriate to consider in the second place, the referring court asks, in essence, whether freedom of information and freedom of the press, enshrined in Article 11 of the Charter, are capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to, respectively, in Article 2(a) and Article 3(1) of that directive.41First of all, it should be noted that it is clear both from the Explanatory Memorandum to Proposal COM(97) 628 final and from recital 32 of Directive 2001/29 that the list of exceptions and limitations contained in Article 5 of that directive is exhaustive, as the Court has also pointed out on several occasions (judgments of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 34, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 16).42As follows from recitals 3 and 31 of Directive 2001/29, the harmonisation effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by Article 17(2) of the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter, as well as of the public interest (see, to that effect, judgment of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 41).43The mechanisms allowing those different rights and interests to be balanced are contained in Directive 2001/29 itself, in that it provides inter alia, first, in Articles 2 to 4 thereof, rightholders with exclusive rights and, second, in Article 5 thereof, for exceptions and limitations to those rights which may, or even must, be transposed by the Member States, since those mechanisms must nevertheless find concrete expression in the national measures transposing that directive and in their application by national authorities (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 66 and the case-law cited).44The Court has repeatedly held that the fundamental rights now enshrined in the Charter, the observance of which the Court ensures, draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, to that effect, judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 35 and the case-law cited).45As regards the exceptions and limitations provided for in Article 5(3)(c), second case, and (d) of Directive 2001/29 in respect of which the referring court has doubts, it is to be noted that they are specifically aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press, which is of particular importance when protected as a fundamental right, over the interest of the author in being able to prevent the use of his or her work, whilst ensuring that the author has the right, in principle, to have his or her name indicated (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 135).46Article 5(5) of that directive also contributes to the fair balance mentioned in paragraphs 36 and 42 above, in that, as has been stated in paragraph 37 above, it requires that the exceptions and limitations provided for in Article 5(1) to (4) of the directive be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.47In that context, to allow, notwithstanding the express intention of the EU legislature, set out in paragraph 41 above, each Member State to derogate from an author’s exclusive rights, referred to in Articles 2 to 4 of Directive 2001/29, beyond the exceptions and limitations exhaustively set out in Article 5 of that directive, would endanger the effectiveness of the harmonisation of copyright and related rights effected by that directive, as well as the objective of legal certainty pursued by it (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 34 and 35). It is expressly clear from recital 31 of the directive that the differences that existed in the exceptions and limitations to certain restricted acts had direct negative effects on the functioning of the internal market of copyright and related rights, since the list of the exceptions and limitations set out in Article 5 of Directive 2001/29 is aimed at ensuring such proper functioning of the internal market.48In addition, as is clear from recital 32 of the directive, the Member States are required to apply those exceptions and limitations consistently. The requirement of consistency in the implementation of those exceptions and limitations could not be ensured if the Member States were free to provide for such exceptions and limitations beyond those expressly set out in Directive 2001/29 (see, to that effect, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 38 and 39), since the Court has moreover previously held that no provision of Directive 2001/29 envisages the possibility for the scope of such exceptions or limitations to be extended by the Member States (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 27).49In the light of the foregoing considerations, the answer to the third question is that freedom of information and freedom of the press, enshrined in Article 11 of the Charter, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively. The second question 50By its second question, the referring court asks, in essence, whether, in striking the balance which it is incumbent on a national court to undertake between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of Directive 2001/29, the latter derogating from the former, a national court may depart from a restrictive interpretation of the latter provisions in favour of an interpretation which takes full account of the need to respect freedom of expression and freedom of information, enshrined in Article 11 of the Charter.51As set out in paragraph 38 above, it is for the Member States, in transposing the exceptions and limitations referred to in Article 5(2) and (3) of Directive 2001/29, to ensure that they rely on an interpretation of those exceptions and limitations which allows for a fair balance to be struck between the various fundamental rights protected by the EU legal order.52Subsequently, when applying the measures transposing that directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also make sure that they do not rely on an interpretation of it which would be in conflict with those fundamental rights or with the other general principles of EU law, as the Court has repeatedly held (see, to that effect, judgments of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 70; of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46; and of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 34).53It is certainly the case, as the referring court notes, that any derogation from a general rule must, in principle, be interpreted strictly.54However, although Article 5 of Directive 2001/29 is expressly entitled ‘Exceptions and limitations’, it should be noted that those exceptions or limitations do themselves confer rights on the users of works or of other subject matter (see, to that effect, judgment of 11 September 2014, Eugen Ulmer, C‑117/13, EU:C:2014:2196, paragraph 43). In addition, that article is specifically intended, as has been stated in paragraph 36 above, to ensure a fair balance between, on the one hand, the rights and interests of rightholders, which must themselves be given a broad interpretation (see, to that effect, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraphs 30 and 31 and the case-law cited) and, on the other, the rights and interests of users of works or other subject matter.55It follows that the interpretation of the exceptions and limitations provided for in Article 5 of Directive 2001/29 must allow, as is clear from paragraph 36 above, their effectiveness to be to safeguarded and their purpose to be observed, since such a requirement is of particular importance where those exceptions and limitations aim, as do those provided for in Article 5(3)(c) and (d) of Directive 2001/29, to ensure observance of fundamental freedoms.56In that context, first, it should be added that the protection of intellectual property rights is indeed enshrined in Article 17(2) of the Charter. There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be protected as an absolute right (judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 43; of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraph 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 61).57Second, it has been stated in paragraph 45 above that Article 5(3)(c) and (d) of Directive 2001/29 is aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press, enshrined in Article 11 of the Charter. In that regard, it should be noted that, in so far as the Charter contains rights which correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, by analogy, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 26 September 2018, Staatssecretaris van Veiligheid en justitie (Suspensory effect of the appeal), C‑180/17, EU:C:2018:775, paragraph 31 and the case-law cited). Article 11 of the Charter contains rights which correspond to those guaranteed by Article 10(1) of the ECHR (see, to that effect, judgment of 14 February 2019, Buivids, C‑345/17, EU:C:2019:122, paragraph 65 and the case-law cited).58As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest (see, to that effect, ECtHR, 10 January 2013, Ashby Donald and Others v. France, CE:ECHR:2013:0110JUD003676908, § 39).59In the light of the foregoing considerations, the answer to the second question is that, in striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter. The fourth question 60By its fourth question, the referring court asks, in essence, whether Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events.61As has been stated in paragraph 26 above, Article 5(3)(c), second case, of Directive 2001/29 provides that the Member States may provide for exceptions or limitations to the exclusive rights of reproduction and of communication to the public provided for in Articles 2 and 3 of that directive in the case of use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible.62As is clear from settled case-law, the need to ensure a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which, as is the case of Article 5(3) of Directive 2001/29, makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 32 and the case-law cited).63First of all, it should be noted that the wording of Article 5(3)(c), second case, of Directive 2001/29 does not require the rightholder’s consent prior to the reproduction or communication to the public of a protected work.64Subject to indication of the source and use of the work to the extent justified by the informatory purpose, the exception or limitation provided for requires only that such use be ‘in connection with the reporting of current events’.65Since Directive 2001/29 gives no definition of those words, they must be interpreted in accordance with their usual meaning in everyday language, while also taking into account the legislative context in which they occur and the purposes of the rules of which they are part (see, to that effect, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case-law cited).66As regards, first, the wording of Article 5(3)(c), second case, of Directive 2001/29, it should be noted, first of all, that the action of ‘reporting’, referred to in that provision, must be understood as that of providing information on a current event. Although merely announcing that such an event has occurred does not amount to reporting it, the word ‘reporting’, according to its usual meaning, does not, however, require the user to analyse such an event in detail.67Next, reporting must relate to a ‘current event’. In that regard, as noted by the referring court, it must be held that a current event is an event that, at the time at which it is reported, is of informatory interest to the public.68Lastly, Article 5(3)(c), second case, of Directive 2001/29 requires that the source, including the name of the author of the protected work, be indicated, unless this turns out to be impossible, and that the use in question be made ‘to the extent justified by the informatory purpose’ and, therefore, consistently with the principle of proportionality. It follows that the use of the protected work must not be extended beyond the confines of what is necessary to achieve the informatory purpose.69In the present case, it is for the referring court to ascertain whether the publication of the original versions of the manuscript and of the article published in the book at issue, in full and without indicating that Mr Beck dissociated himself from the content of those documents, was necessary to achieve the informatory purpose.70Second, as regards the legislative context of which Article 5(3)(c) of Directive 2001/29 forms a part, the Court observes that that provision concerns the dissemination of information by news agencies for the purposes of satisfying the informatory interest of the public in respect of current events, which is clear, inter alia, first, from the wording used in that provision, in which the first case set out specifically refers to reproductions by the press and to the publication of articles on current topics and, second, from the limits laid down by the EU legislature on the use of the work or protected subject matter in question, which must be made only to the ‘extent justified by the informatory purpose’.71When a current event occurs, it is necessary, as a general rule, particularly in the information society, for the information relating to that event to be diffused rapidly, which is difficult to reconcile with a requirement for the author’s prior consent, which would be likely to make it excessively difficult for relevant information to be provided to the public in a timely fashion, and might even prevent it altogether.72Third, as regards safeguarding the effectiveness of the exception or limitation provided for in Article 5(3)(c), second case, of Directive 2001/29, it should be noted that its purpose is to contribute to the exercise of the freedom of information and the freedom of the media, enshrined in Article 11 of the Charter, since the Court has already indicated that the purpose of the press, in a democratic society governed by the rule of law, justifies it in informing the public, without restrictions other than those that are strictly necessary (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 113).73However, requiring the user of a protected work to seek the authorisation of the rightholder where reasonably possible would mean disregarding the need for the exception or limitation referred to in Article 5(3)(c), second case, of Directive 2001/29 to permit, if the conditions for its application are satisfied, the use of a protected work without any authorisation from the rightholder.74In the light of the foregoing considerations, the answer to the fourth question is that Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events. The fifth question 75By its fifth question, the referring court asks, in essence, whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently.76Under Article 5(3)(d) of Directive 2001/29, Member States may provide for exceptions or limitations to the exclusive rights of reproduction and of communication to the public referred to in Articles 2 and 3 of that directive in the case of quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.77Since Directive 2001/29 gives no definition of the term ‘quotation’, the meaning and scope of that term must, according to the Court’s settled case-law set out in paragraph 65 above, be determined by considering its usual meaning in everyday language, while also taking into account the legislative context in which it occurs and the purposes of the rules of which it is part.78As regards the usual meaning of the word ‘quotation’ in everyday language, it should be noted that the essential characteristics of a quotation are the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user. In that regard, the Court has previously held that the issue of whether the quotation is made as part of a work protected by copyright or, on the other hand, as part of subject matter not protected by copyright, is irrelevant (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 136).79As stated, in essence, by the Advocate General in point 43 of his Opinion, the user of a protected work wishing to rely on the exception for quotations must therefore necessarily establish a direct and close link between the quoted work and his own reflections, thereby allowing for an intellectual comparison to be made with the work of another, since Article 5(3)(d) of Directive 2001/29 states in that regard that a quotation must inter alia be intended to enable criticism or review. It also follows that the use of the quoted work must be secondary in relation to the assertions of that user, since the quotation of a protected work cannot, moreover, under Article 5(5) of Directive 2001/29, be so extensive as to conflict with a normal exploitation of the work or another subject matter or prejudices unreasonably the legitimate interests of the rightholder.80However, neither the wording of Article 5(3)(d) of Directive 2001/29 nor the concept of ‘quotation’, as described in paragraphs 78 and 79 above, require that the quoted work be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, so that a quotation may thus be made by including a hyperlink to the quoted work.81Such a possibility is consistent with the legislative context of which that provision forms a part, since Directive 2001/29 concerns the legal protection of copyright in the framework of the internal market with particular emphasis on the information society, as set out in Article 1(1) thereof. As the Court has stated on several occasions, hyperlinks contribute to the sound operation of the internet, which is of particular importance to freedom of expression and of information, enshrined in Article 11 of the Charter, as well as to the exchange of opinions and information in that network characterised by the availability of incalculable amounts of information (judgments of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 45, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 40).82Furthermore, such an interpretation is not undermined by the objective to which the exception for quotations provided for in Article 5(3)(d) of Directive 2001/29 aspires, which, as the Court has previously held, is intended to strike a fair balance between the right to freedom of expression of users of a work or other subject matter and the reproduction right conferred on authors and to preclude the exclusive right of reproduction conferred on authors from preventing the publication, by means of quotation accompanied by comments or criticism, of extracts from a work that is already available to the public (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 120 and 134).83Despite those considerations and since, in the present case, the referring court notes that Mr Beck’s manuscript and article were made available to the public on the internet, by means of hyperlinks, as files which can be downloaded independently, it is to be noted that for Article 5(3)(d) of Directive 2001/29 to apply, as has been stated in paragraph 76 above, the use in question must be made ‘in accordance with fair practice, and to the extent required by the specific purpose’, so that the use of that manuscript and article for the purposes of quotation must not be extended beyond the confines of what it necessary to achieve the informatory purpose of that particular quotation.84In the light of the foregoing considerations, the answer to the fifth question is that Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently. The sixth question 85By its sixth question, the referring court asks, in essence, whether Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was published previously with the author’s consent.86As is clear from Article 5(3)(d) of Directive 2001/29, the exception for quotations applies only if the quotation in question relates to a work which has already been lawfully made available to the public.87In that regard, the Court has previously held that the expression ‘mise à la disposition du public d’une œuvre’ (making a work available to the public) in the French language version must be understood, within the meaning of Article 5(3)(d) of Directive 2001/29, as meaning the act of making a work available to the public, that interpretation being supported both by the expressions ‘made available to the public’ and ‘der Öffentlichkeit zugänglich gemacht’, which are used indiscriminately in the English and German language versions of that article (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 128).88As to whether a work has already been ‘lawfully’ made available to the public, the Court has pointed out that the only quotations permissible, provided that the other conditions provided for in Article 5(3)(d) of Directive 2001/29 are satisfied, are quotations from a work which has already been lawfully made available to the public (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 127).89Thus, it must be held that a work, or a part of a work, has already been lawfully made available to the public if it has been made available to the public with the authorisation of the copyright holder or in accordance with a non-contractual licence or a statutory authorisation.90In the present case, the referring court asks whether Mr Beck’s work may be regarded as having already been lawfully made available to the public at the time of the publication of his manuscript in 1988 as an article in a book, in the light of the fact that that manuscript was allegedly the subject of minor changes prior to publication by the publisher of that book. It asks whether Mr Beck’s publication on his own website of those documents accompanied by statements of dissociation constitutes making it lawfully available to the public.91It must be borne in mind, in that regard, that it is for the national court to decide whether a work has been lawfully made available to the public, in the light of the particular case before it and by taking into account all the circumstances of the case (see, to that effect, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 28).92In particular, it is for the referring court, in the case in the main proceedings, to ascertain whether, at the time of Mr Beck’s initial publication of the manuscript as an article in a book, the publisher had the right, whether contractually or otherwise, to undertake the editorial amendments in question. If not, it would need to be held that, in the absence of the rightholder’s consent, the work, in the form in which it was published in that book, was not made lawfully available to the public.93However, it is clear that Mr Beck’s manuscript and article were subsequently published by the copyright holder himself on his own website. The referring court states, however, that the publication of those documents on Mr Beck’s website was accompanied by a statement of dissociation by him from the content of those documents across every page thereof. Thus, at the time of that publication, the same documents were lawfully made available to the public only in so far as they were accompanied by those statements of dissociation.94In any event, in the light of the considerations already set out in paragraph 83 above, for the purpose of the application of Article 5(3)(d) of Directive 2001/29, it is for the referring court to ascertain whether the original versions of the manuscript and of the article published in the book in question, without Mr Beck’s statements of dissociation from the content of those documents, were published in accordance with fair practice and to the extent required by the specific purpose of the quotation in question.95In the light of the foregoing considerations, the answer to the sixth question is that Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation. Costs 96Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 5(3)(c), second case, and (d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. 2. Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively. 3. In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. 4. Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events. 5. Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently. 6. Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation. [Signatures]( *1 ) Language of the case: German. | 7b565-0e93bdf-47fe | EN |
The Belgian law extending the operating life of nuclear power stations Doel 1 and Doel 2 was adopted without the required environmental assessments being carried out first | 29 July 2019 ( *1 )(Reference for a preliminary ruling — Environment — Espoo Convention — Aarhus Convention — Conservation of natural habitats and of wild fauna and flora — Directive 92/43/EEC — Article 6(3) — Definition of ‘project’ — Assessment of the effects on the site concerned — Article 6(4) — Meaning of ‘imperative reasons of overriding public interest’ — Conservation of wild birds — Directive 2009/147/EC — Assessment of the effects of certain public and private projects on the environment — Directive 2011/92/EU — Article 1(2)(a) — Definition of ‘project’ — Article 2(1) — Article 4(1) — Environmental impact assessment — Article 2(4) — Exemption from assessment — Phasing out of nuclear energy — National legislation providing, first, for restarting industrial production of electricity for a period of almost 10 years at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the date initially set by the national legislature for deactivating and ceasing production at that power station, and second, for deferral, also by 10 years, of the date initially set by the legislature for deactivating and ceasing industrial production of electricity at an active power station — No environmental impact assessment)In Case C‑411/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Cour constitutionnelle (Constitutional Court, Belgium), made by decision of 22 June 2017, received at the Court on 7 July 2017, in the proceedings Inter-Environnement Wallonnie ASBL, Bond Beter Leefmilieu Vlaanderen ASBL v Council of Ministers, intervener: Electrabel SA, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice‑President, J.‑C. Bonichot (Rapporteur), A. Prechal, M. Vilaras, E. Regan, T. von Danwitz, C. Toader and C. Lycourgos, Presidents of Chambers, A. Rosas, M. Ilešič, J. Malenovský, M. Safjan, D. Šváby and C.G. Fernlund, Judges,Advocate General: J. Kokott,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 10 September 2018,after considering the observations submitted on behalf of:–Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL, by J. Sambon, avocat,Electrabel SA, by T. Vandenput and M. Pittie, avocats, and by D. Arts and F. Tulkens, advocaten,the Belgian Government, by M. Jacobs, C. Pochet and J. Van Holm, acting as Agents, and by G. Block and K. Wauters, avocats, and F. Henry,the Czech Government, by M. Smolek, J. Vláčil, J. Pavliš and L. Dvořáková, acting as Agents,the German Government, originally represented by T. Henze and D. Klebs, and later by D. Klebs, acting as Agents,the Austrian Government, originally represented by C. Pesendorfer, and later by M. Oswald and G. Hesse, acting as Agents,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo, J. Reis Silva and L. Medeiros, acting as Agents,the Finnish Government, by J. Heliskoski, acting as Agent,the United Kingdom Government, by S. Brandon, J. Kraehling, G. Brown and R. Fadoju, acting as Agents, and by D. Blundell, Barrister,the European Commission, by G. Gattinara, C. Zadra, M. Noll‑Ehlers, R. Tricot and M. Patakia, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 29 November 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of the Convention on Environmental Impact Assessment in a Transboundary Context, concluded at Espoo (Finland) on 25 February 1991 and approved on behalf of the European Community by Council Decision of 27 June 1997 (‘the Espoo Convention’); of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, concluded at Aarhus (Denmark) on 25 June 1998 and approved on behalf of the Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’); of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (‘the Habitats Directive’); of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7), as amended by Directive 2013/17 (‘the Birds Directive’), and of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1; ‘the EIA Directive’).2The request has been made in proceedings between Inter Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL, on the one hand, and the Conseil des ministres (Council of Ministers, Belgium), on the other, in relation to legislation whereby the Kingdom of Belgium, first, provided for the restarting of industrial production of electricity, for a period of almost 10 years, at a nuclear power station that had previously been shut down, and second, for deferral by 10 years of the date initially set for deactivating and ceasing industrial production of electricity at an active nuclear power station. I. Legal context A. International law 1. The Espoo Convention 3Article 1 of the Espoo Convention, headed ‘Definitions’, provides:‘…(v)“Proposed activity” means any activity or any major change to an activity subject to a decision of a competent authority in accordance with an applicable national procedure;…(ix)“Competent authority” means the national authority or authorities designated by a Party as responsible for performing the tasks covered by this Convention and/or the authority or authorities entrusted by a Party with decision-making powers regarding a proposed activity;…’4Article 2 of the Espoo Convention states:‘1. The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.2. Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorise or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.6. The Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin.7. Environmental impact assessments as required by this Convention shall, as a minimum requirement, be undertaken at the project level of the proposed activity. To the extent appropriate, the Parties shall endeavour to apply the principles of environmental impact assessment to policies, plans and programmes.5Article 3(8) of the Espoo Convention provides that ‘the concerned Parties shall ensure that the public of the affected Party, in the areas likely to be affected, be informed of, and be provided with possibilities for making comments or objections on, the proposed activity and for the transmittal of these comments or objections to the competent authority of the Party of origin, either directly to this authority, or, where appropriate, through the Party of origin’.6Article 5 of the Espoo Convention states:‘The Party of origin shall, after completion of the environmental impact assessment documentation, without undue delay enter into consultations with the affected Party concerning, inter alia, the potential transboundary impact of the proposed activity and measures to reduce or eliminate its impact. Consultations may relate to:(a)Possible alternatives to the proposed activity, including the no‑action alternative and possible measures to mitigate significant adverse transboundary impact and to monitor the effects of such measures at the expense of the Party of origin;(b)Other forms of possible mutual assistance in reducing any significant adverse transboundary impact of the proposed activity; and(c)Any other appropriate matters relating to the proposed activity.The Parties shall agree, at the commencement of such consultations, on a reasonable time frame for the duration of the consultation period. Any such consultations may be conducted through an appropriate joint body, where one exists.’7Article 6(1) of the Espoo Convention states:‘The Parties shall ensure that, in the final decision on the proposed activity, due account is taken of the outcome of the environmental impact assessment, including the environmental impact assessment documentation, as well as the comments thereon received pursuant to Article 3, paragraph 8 and Article 4, paragraph 2, and the outcome of the consultations as referred to in Article 5.’8Appendix I to the Espoo Convention, headed ‘List of activities’, refers, in point 2, to, inter alia, ‘nuclear power stations and other nuclear reactors’.9The ‘Background Note on the application of [the Espoo Convention] to nuclear energy-related activities’ (ECE/MP.EIA/2011/5), issued on 2 April 2011 by the United Nations Economic Commission for Europe, mentions, among the major changes that are subject to the requirements of the Espoo Convention, ‘a substantial increase in the production or storage of radioactive waste from a facility (not only NPP [nuclear power plants]), for example by 25 per cent’, and ‘an extension of the lifetime of a facility’.10In the same note, a summary of its content includes the following:‘This note attempts to reflect the diverse and sometimes conflicting views expressed on the application of the [Espoo] Convention to nuclear energy-related activities, particularly nuclear power plants. It is not a guidance note, but rather is intended to encourage debate on key issues during the panel discussion on nuclear energy-related projects to be held during the fifth session of the Meeting of the Parties to the [Espoo Convention].The note does not necessarily reflect the views of the United Nations Economic Commission for Europe or of the secretariat.’11The terms of reference for the drawing up of the ‘Good Practice Recommendations on the application of [the Espoo Convention] to nuclear energy-related activities’, approved by the Meeting of the Parties to the Espoo Convention, 7th Session (Minsk (Belarus), 13 to 16 June 2017) state that the object of that document is to ‘describe existing good practice on environmental impact assessment [of] nuclear energy-related activities’.12The same terms of reference state that screening will have to determine whether nuclear activities, as well as major changes to them, fall under the scope of the Espoo Convention. It is also stated that that screening ‘includes considerations relating to the extension, renewal and updating of the licence (for example, extension of the operating life), such as a substantial increase in levels of production or in the production/transport/storage of radioactive waste from a facility (not only an NPP) and decommissioning’. 2. The Aarhus Convention 13Under Article 2(2) of the Aarhus Convention, the definition of ‘public authority’ in that Convention ‘does not include bodies or institutions acting in a … legislative capacity’.14Article 6(1) and (4) of the Aarhus Convention, that article being headed ‘Public participation in decisions on specific activities’, provides:‘1. Each Party:Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in Annex I;Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions;4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.’15Annex I to the Aarhus Convention, headed ‘List of activities referred to in Article 6, paragraph 1 (a)’, mentions, in the fifth indent of point 1, ‘nuclear power stations and other nuclear reactors, including the dismantling or decommissioning of such power stations or reactors’.16Point 22 of that annex reads as follows:‘Any change to or extension of activities, where such a change or extension in itself meets the criteria/thresholds set out in this annex, shall be subject to Article 6, paragraph 1 (a) of this Convention. Any other change or extension of activities shall be subject to Article 6, paragraph 1 (b) of this Convention.’17The ‘Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters’ were approved by the Meeting of the Parties to the Aarhus Convention at the fifth session (Maastricht (Netherlands), 30 June to 1 July 2014). In the part of those recommendations entitled ‘Summary’, it is stated that those recommendations, though ‘neither binding nor exhaustive’, nonetheless provide ‘helpful guidance on implementing Articles 6, 7 and 8 of [the Aarhus Convention]’. B. EU law 1. The Habitats Directive 18Article 2(2) of the Habitats Directive states:‘Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.’19Article 3(1) of that directive provides:‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to [Council] Directive 79/409/EEC [of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1)].’20Article 6 of the Habitats Directive states:‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’21Article 7 of the Habitats Directive provides:‘Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive [79/409] in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive [79/409], where the latter date is later.’ 2. The Birds Directive 22Article 2 of the Birds Directive states:‘Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.’23Article 3 of that directive provides:‘1. In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re‑establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.2. The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures:creation of protected areas;upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones;re-establishment of destroyed biotopes;(d)creation of biotopes.’24Article 4 of the Birds Directive states:‘1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. …4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’25As is stated in the first paragraph of its Article 18, the Birds Directive repealed Directive 79/409. The second paragraph of Article 18 adds that references to the latter directive are to be construed as references to the Birds Directive and are to be read in accordance with the correlation table in Annex VII to that directive. 3. The EIA Directive 26Recitals 1, 15 and 18 to 20 of the EIA Directive state:‘(1)Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [(OJ 1985 L 175, p. 40)] has been substantially amended several times. In the interests of clarity and rationality the said Directive should be codified.(15)It is desirable to lay down strengthened provisions concerning environmental impact assessment in a transboundary context to take account of developments at international level. The European Community signed [the Espoo Convention] on 25 February 1991 and ratified it on 24 June 1997.(18)The European Community signed [the Aarhus Convention] on 25 June 1998 and ratified it on 17 February 2005.(19)Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.(20)Article 6 of the Aarhus Convention provides for public participation in decisions on the specific activities listed in Annex I thereto and on activities not so listed which may have a significant effect on the environment.’27Article 1(2) and (4) of the EIA Directive provides:‘2. For the purposes of this Directive, the following definitions shall apply:“project” means:the execution of construction works or of other installations or schemes,other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;“developer” means the applicant for authorisation for a private project or the public authority which initiates a project;“development consent” means the decision of the competent authority or authorities which entitles the developer to proceed with the project;4. This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process.’28Article 2(1) and (4) of the EIA Directive provides:‘1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.4. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.In that event, the Member States shall:consider whether another form of assessment would be appropriate;make available to the public concerned the information obtained under other forms of assessment referred to in point (a), the information relating to the decision granting exemption and the reasons for granting it;inform the Commission, prior to granting consent, of the reasons justifying the exemption granted, and provide it with the information made available, where applicable, to their own nationals.The Commission shall immediately forward the documents received to the other Member States.The Commission shall report annually to the European Parliament and to the Council on the application of this paragraph.’29Article 4(1) and (2) of the EIA Directive provides:‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:a case-by-case examination;orthresholds or criteria set by the Member State.Member States may decide to apply both procedures referred to in points (a) and (b).’30Article 5(3) of the EIA Directive provides that the information to be provided by a developer, for projects which, under Article 4 of that directive, must be subject to an environmental impact assessment, is to at least include: a description of the project comprising information on the site, design and size of the project; a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects; the data required to identify and assess the main effects which the project is likely to have on the environment; an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects; a non-technical summary of the above information.31The first subparagraph of Article 7(1) of the EIA Directive states:‘Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:a description of the project, together with any available information on its possible transboundary impact;information on the nature of the decision which may be taken.’32Annex I to that directive, headed ‘Projects referred to in Article 4(1)’, mentions, in point 2(b), ‘Nuclear power stations and other nuclear reactors including the dismantling or decommissioning of such power stations or reactors’.33The same Annex I refers, in point 24, to ‘any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex’.34Annex II to the EIA Directive mentions, in point 13(a), ‘any change or extension of projects listed in Annex I or this Annex, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I)’. C. Belgian law 1. The Law of 31 January 2003 35The loi du 31 janvier 2003 sur la sortie progressive de l’énergie nucléaire à des fins de production industrielle d’électricité (Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of industrial production of electricity (Moniteur belge of 28 February 2003, p. 9879; ‘the Law of 31 January 2003’), laid down a timetable for phasing out industrial production of electricity by the fission of nuclear fuels in nuclear power stations.36Article 2 of that law provides:‘For the purposes of this Law, the following definitions shall apply:1° “date of entry into service for industrial purposes”: date on which the formal agreement between the electricity producer, the builders and the engineering consultancy firm finalises the project phase and initiates the production phase, as follows for the existing power stations:Doel 1: 15 February 1975Doel 2: 1 December 1975Doel 3: 1 October 1982Doel 4: 1 July 1985Tihange 1: 1 October 1975Tihange 2: 1 February 1983Tihange 3: 1 September 198537Article 4 of that law, in the initial version, provided:‘§ 1. Nuclear power stations used for the industrial production of electricity by the fission of nuclear fuels shall be deactivated 40 years after the date on which they were brought into service for industrial purposes and may no longer produce electricity thereafter.‘§ 2. All specific operating consents and consents for the industrial production of electricity by the fission of nuclear fuels issued for an unlimited period by the King … shall expire 40 years after the date on which the production facility concerned was brought into service for industrial purposes.’38According to Article 9 of that law:‘If the security of the electricity supply is threatened, the King may take the necessary measures by Royal Order, deliberated upon by the Conseil des Ministres (Council of Ministers) following an opinion from the Commission de Régulation de l’Électricité et du Gaz (Commission for the Regulation of Gas and Electricity, Belgium), without prejudice to Articles 3 to 7 of this Law, except in the event of force majeure. That opinion shall focus, in particular, on the effect of production price movements on security of supply.’ 2. The Law of 28 June 2015 39The loi du 28 juin 2015 modifiant la loi du 31 janvier 2003 sur la sortie progressive de l’énergie nucléaire à des fins de production industrielle d’électricité afin de garantir la sécurité d’approvisionnement sur le plan énergétique (Law of 28 June 2015 amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure security of the energy supply (Moniteur belge of 6 July 2015, p. 44423; ‘the Law of 28 June 2015’), entered into force on 6 July 2015.40The explanatory memorandum to the Law of 28 June 2015 stresses, in particular, that a number of scientific studies have highlighted the potentially problematic situation in relation to security of supply, and that, given the major uncertainties surrounding restarting the Doel 3 and Tihange 2 stations, and the planned closure of thermal power stations in 2015, combined with the fact that foreign capacity cannot in the short term be integrated into the Belgian grid, the Belgian Government decided, on 18 December 2014, to continue to operate the Doel 1 and Doel 2 power stations for a further 10 years, with the proviso that the operating life of those reactors may not be extended beyond the year 2025. The memorandum specifies that the extension will be implemented in accordance with the requirements in respect of 10-year safety reviews, which cover, inter alia, the measures set out in Electrabel SA’s long-term plan for the operation of the power stations known as the ‘Long Term Operation Plan’ (‘LTO plan’), which details the measures to be taken as a result of prolonging industrial electricity production at those two power stations, the adjustments to be made to the action plan on stress tests and the approvals needed from the Agence fédérale de contrôle nucléaire (Federal Nuclear Control Agency, AFCN).41Article 4(1) of the Law of 31 January 2003, as amended by the Law of 28 June 2015, states:‘The Doel 1 nuclear power station may resume electricity production upon entry into force of the [Law of 28 June 2015]. It shall be deactivated and may no longer produce electricity as from 15 February 2025. The other nuclear power stations used for the industrial production of electricity by the fission of nuclear fuels shall be deactivated on the following dates and may no longer produce electricity from those dates onward:Doel 2: 1 December 2025.’42Further, the Law of 28 June 2015 inserted a third paragraph into Article 4 of the Law of 31 January 2003, in the following terms:‘By order deliberated in the Council of Ministers, the King shall bring forward the date referred to in § 1 in respect of the Doel 1 and Doel 2 nuclear power stations to 31 March 2016, if the agreement referred to in Article 4/2, § 3, has not been concluded by 30 November 2015, at the latest.’43Finally, the Law of 28 June 2015 inserted an Article 4/2, into the Law of 31 January 2003, worded as follows:‘§ 1. The owner of the Doel 1 and Doel 2 nuclear power stations shall pay an annual fee to the Federal State, until 15 February 2025 for Doel 1 and 1 December 2025 for Doel 2, in return for the extension of the period authorised for the industrial production of electricity by the fission of nuclear fuels.§ 3. The Federal State shall conclude an agreement with the owner of the Doel 1 and Doel 2 nuclear power stations, for the purpose of, in particular:1°specifying the arrangements for calculating the fee referred to in paragraph l;2°paying compensation to each party in respect of any breach of their contractual obligations.’ II. The dispute in the main proceedings and the questions referred for a preliminary ruling 44There are seven nuclear reactors in the Kingdom of Belgium: four in the territory of the Flemish Region at Doel (Doel 1, Doel 2, Doel 3 and Doel 4), and three in the territory of the Walloon Region at Tihange (Tihange 1, Tihange 2 and Tihange 3). For the purposes of the present judgment, each reactor will be treated as a separate nuclear power station.45The Doel 1 and Doel 2 power stations have been in service since 15 February 1975 and 1 December 1975, respectively. A single consent was issued in respect of both stations by Royal Order in 1974, for an indeterminate period.46The Law of 31 January 2003, in the initial version, first of all, prohibited the construction and commissioning of any new nuclear power stations in Belgium and, secondly, established a timetable for the phasing out of nuclear energy, whereby industrial electricity production by all active power stations would end on specified dates. For that purpose, the law provided that specific operating consents and consents for the industrial production of electricity would expire 40 years after the power station concerned was brought into service, but allowed the King to adjust the timetable if security of supply to the country were threatened.47However, the Law of 18 December 2013, amending the Law of 31 January 2003, postponed by 10 years the date on which industrial production of electricity by the Tihange 1 power station, brought into service on 1 October 1975, would end. That Law provided that only the consent for industrial production of electricity would expire on the deactivation date provided for in the timetable for the phasing out of nuclear energy and that the operating consent would remain valid until such time as it were ‘adjusted’. The law also removed the possibility of the King altering the timetable for phasing out nuclear energy laid down in the Law of 31 January 2003.48On 18 December 2014 the Belgian Government decided that the period of electricity production at the Doel 1 and Doel 2 power stations would also be extended by 10 years.49On 13 February 2015 Electrabel, the owner-operator of those two power stations, notified the AFCN that the Doel 1 power station would be deactivated and that industrial electricity production at that station would cease on 15 February 2015 at midnight, in accordance with the timetable established by the Law of 31 January 2003. It was specified that the notification would be ‘null and void’, if and when legislation providing for a 10-year extension in respect of that power station were to enter into force and provided that the conditions relating thereto were accepted by Electrabel.50The Law of 28 June 2015 introduced further changes to the timetable laid down by the national legislature for phasing out nuclear energy, deferring the end of industrial electricity production at the Doel 1 and Doel 2 power stations by 10 years. That law also provided that the Doel 1 power station could resume electricity production.51Under that law, those two power stations must be deactivated and cease industrial electricity production on 15 February 2025, for the Doel 1 power station, and 1 December 2025, for the Doel 2 power station.52The order for reference indicates that members of parliament held a number of hearings in the course of the proceedings for the adoption of that law, and those heard from included the head of the national body on radioactive waste and enriched fissionable materials, who indicated that a 10-year extension of electricity production by those two power stations was likely to produce 350 m3 of operational waste.53In September 2015 the AFCN confirmed the decision it had adopted in August 2015 not to carry out an environmental impact assessment in respect of the changes envisaged by the operator under the LTO plan.54An action was brought against that decision before the Conseil d’État (Council of State, Belgium).55A Royal Order of 27 September 2015 laid down the conditions for the operation of the Doel 1 and Doel 2 power stations, specifying that Electrabel should implement the LTO plan by the end of 2019 at the latest. An action against that decision was also brought before the Conseil d’État (Council of State).56On 30 November 2015 Electrabel and the Belgian State signed an agreement for a ‘rejuvenation’ investment plan of approximately EUR 700 million to extend the period of operation of the Doel 1 and Doel 2 power stations up until the date provided for in the Law of 28 June 2015 (‘the Agreement of 30 November 2015’).57The Belgian environmental protection associations Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen brought proceedings before the Cour constitutionnelle (Constitutional Court, Belgium) seeking annulment of the Law of 28 June 2015. They argue, in essence, that the adoption of that legislation was in breach of the requirements to carry out a prior assessment, under the Espoo Convention and the Aarhus Convention, as well as the EIA Directive, the Habitats Directive and the Birds Directive.58In those circumstances, the Cour constitutionnelle (Constitutional Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:Must Article 2(1) to (3), (6) and (7), Article 3(8), Article 5 and Article 6(1) of the Espoo Convention, and point 2 of Appendix 1 to [the Epsoo Convention], be interpreted in accordance with the explanations provided in the background note on the application of the [Espoo Convention] to nuclear-energy related activities and the good practice recommendations on the application of the [Espoo Convention] to nuclear-energy related activities?(2)May Article 1(ix) of the [Espoo Convention], which defines the “competent authority”, be interpreted as excluding from the scope of that [Convention] legislative acts such as the [Law of 28 June 2015], having regard in particular to the various assessments and hearings carried out in connection with the adoption of that law?(3)Must Articles 2 to 6 of the [Espoo Convention] be interpreted as applying prior to the adoption of a legislative act such as the [Law of 28 June 2015], Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?Does the answer to the question in point (a) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?May the security of the country’s electricity supply constitute an overriding reason of public interest permitting a derogation from the application of Articles 2 to 6 of the [Espoo Convention] and/or suspension of the application of those provisions?(4)Must Article 2(2) of the [Aarhus Convention] be interpreted as excluding from the scope of that [Convention] legislative acts such as the [Law of 28 June 2015], irrespective of whether the various assessments and hearings carried out in connection with the adoption of that law are taken into account?(5)Having regard in particular to the Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters with respect to multi-stage decision-making, must Articles 2 and 6 of the [Aarhus Convention], in conjunction with Annex I.1 to that [Convention], be interpreted as applying prior to the adoption of a legislative act such as the [Law of 28 June 2015], Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?May the security of the country’s electricity supply constitute an overriding ground of public interest permitting derogation from the application of Articles 2 and 6 of the [Aarhus Convention] and/or suspension of the application of those provisions?(6)Must Article 1(2) of the [EIA] Directive, in conjunction with point 13(a) of Annex II to that directive, read, where appropriate, in the light of the Espoo and Aarhus [Conventions], be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investment and security upgrades for the Doel 1 and 2 nuclear power stations?If the answer to the question in point (a) is in the affirmative, must Articles 2 to 8 and 11 of the [EIA] Directive and Annexes I, II and III to that directive be interpreted as applying prior to the adoption of a legislative act such as the [Law of 28 June 2015], Article 2 of which postpones the date of deactivation and the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?If the answer to the question set out in point (a) is in the affirmative, must Article 2(4) of the [EIA] Directive be interpreted as permitting an exemption for the postponement of the deactivation of a nuclear power station from the application of Articles 2 to 8 and 11 of the [EIA] Directive for overriding reasons in the public interest linked with the security of the country’s electricity supply?(7)Must the concept of “specific act of legislation” within the meaning of Article 1(4) of the [EIA] Directive be interpreted as excluding from the scope of that directive a legislative act such as the [Law of 28 June 2015], having regard to the various assessments and hearings carried out in connection with the adoption of that law, which might attain the objectives of that directive?(8)Must Article 6 of the [Habitats] Directive, in conjunction with Articles 3 and 4 of the [Birds] Directive, read, where appropriate, in the light of the [EIA] Directive and the Espoo and Aarhus [Conventions], be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and Doel 2 nuclear power stations?If the answer to the question in point (a) is in the affirmative, must Article 6(3) of the [Habitats] Directive be interpreted as applying prior to the adoption of a legislative act such as the [Law of 28 June 2015], Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?If the answer to the question in point (a) is in the affirmative, must Article 6(4) of the [Habitats] Directive be interpreted as allowing grounds linked with the security of the country’s electricity supply to be considered an imperative reason of overriding public interest, having regard in particular to the various assessments and hearings carried out in the context of the adoption of the abovementioned Law of 28 June 2015, which might be capable of attaining the objectives of that directive?(9)If, on the basis of the answers to the preceding questions, the national court should conclude that the Law [of 28 June 2015] fails to fulfil one of the obligations arising under the abovementioned Conventions or directives, and the security of the country’s electricity supply cannot constitute an imperative reason of overriding public interest permitting a derogation from those obligations, might the national court maintain the effects of the Law of 28 June 2015 in order to avoid legal uncertainty and to allow the environmental impact assessment and public participation obligations arising under those Conventions or directives to be fulfilled?’ III. Consideration of the questions referred A. Questions 6 and 7, on the EIA Directive 1. Question 6(a) to (c) 59By Question 6(a) to (c), which should be examined first, the referring court asks, in essence, whether the first indent of Article 1(2)(a) and Article 2(1) of the EIA Directive must be interpreted as meaning that restarting industrial production of electricity for a period of almost 10 years at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the date initially set by the national legislature for deactivating and ceasing production at that power station, and deferral, also by 10 years, of the date initially set by the legislature for deactivating and ceasing industrial production of electricity at an active power station, where those measures entail work to upgrade the power stations in question, constitute a project, within the meaning of that directive and if so, whether an environmental impact assessment must be carried out in respect of that work and those measures prior to the adoption of those measures by the national legislature. The referring court is also uncertain whether it is relevant that in order to implement the measures contested before that court, subsequent measures must be adopted in respect of one of the two power stations in question, such as the issue of a new specific consent for the production of electricity for industrial purposes.60Given that, as stated in recital 1 of the EIA Directive, that directive codifies Directive 85/337, the Court’s interpretation of the provisions of the latter directive also applies to identical provisions of the EIA Directive. (a) The definition of a ‘project’ for the purposes of the EIA Directive 61The term ‘project’ in Article 1(2)(a) of the EIA Directive refers, in the first indent, to the execution of construction works or of other installations or schemes and in the second indent, to other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.62It follows from the case-law of the Court that the definition of the term ‘project’, specifically in the context of the wording of the first indent of Article 1(2)(a) of the EIA Directive, refers to work or interventions involving alterations to the physical aspect of the site (see, to that effect, judgment of 19 April 2012, Pro-Braine and Others, C‑121/11, EU:C:2012:225, paragraph 31 and the case-law cited).63The referring court’s question is whether that description applies to the measures at issue in the main proceedings, given that their implementation requires and would therefore inevitably be accompanied by substantial investment and major upgrading work to the two power stations concerned.64The evidence available to the Court indicates that the measures at issue in the main proceedings entail major work on the Doel 1 and Doel 2 power stations to upgrade them and ensure that current safety standards are met, as demonstrated by the EUR 700 million investment budget earmarked for those power stations.65According to the order for reference, the Agreement of 30 November 2015 makes provision for a ‘rejuvenation’ investment plan, which describes that work as what is needed in order to extend the operational life of both power stations and includes, in particular, investment approved by the AFCN under the LTO plan for the replacement of facilities due to ageing and the upgrading of other facilities, along with changes to be introduced under the Fourth Periodical Safety Review and stress tests carried out in the wake of the accident in Fukushima (Japan).66In particular, the documents provided to the Court indicate that work will focus, in particular, on upgrading the containment structures of the Doel 1 and Doel 2 power stations, renewal of the spent fuel pools, building a new pumping station and adaptation of the base to offer better protection to the power stations against flooding. That work would not be limited to improvements to existing structures, but would also involve the construction of three buildings, two to host ventilation systems and a third as a fire protection structure. Work of that nature is such as to alter the physical aspect of the sites in question, within the meaning of the Court’s case-law.67Further, although no reference is made to that work in the Law of 28 June 2015, and it features instead in the Agreement of 30 November 2015, it is nonetheless closely linked to the measures adopted by the Belgian legislature.68Given the extent of the prolongation of industrial production of electricity provided for by those measures, those measures could not have been adopted unless the Belgian legislature had first been made aware of the nature and the technical and financial feasibility of the upgrading work required and the investment needed to implement it. Indeed, the explanatory memorandum and the travaux préparatoires of the Law of 28 June 2015 make specific reference to that upgrading work and that investment.69It must also be pointed out that the tangible link between the measures contested before the referring court and the investment referred to in the preceding paragraph is borne out by the fact that the Law of 28 June 2015 inserted a paragraph 3 into Article 4 of the Law of 31 January 2003, which provides that, in the absence of agreement between the owner of the Doel 1 and Doel 2 power stations and the Belgian State by 30 November 2015 at the latest, the King would bring forward the date of deactivation for those power stations to 31 March 2016.70The documents provided to the Court also show that the operator of both power stations took on a legal obligation to complete all work by the end of 2019.71In the light of those various factors, measures such as those at issue in the main proceedings cannot be artificially dissociated from the work to which they are inextricably linked when assessing, in the present instance, whether they constitute a project within the meaning of the first indent of Article 1(2)(a) of the EIA Directive. It must therefore be held that such measures and the upgrading work inextricably linked thereto together constitute a single project within the meaning of that provision, subject to findings of fact that are for the referring court to make.72The fact that the implementation of those measures requires the adoption of subsequent acts in respect of one of the power stations concerned, such as issue of a new specific consent for the production of electricity for industrial purposes, does not change that analysis. (b) The need for an environmental impact assessment 73It must, first, be recalled that, before consent is granted in respect of any project within the meaning of Article 1(2)(a) of the EIA Directive, an environmental impact assessment must be conducted on that project pursuant to Article 2(1) of that directive, if it is likely to have significant effects on the environment, by virtue of its nature, size or location.74Furthermore, the requirement imposed by Article 2(1) of the EIA Directive is not that all projects likely to have a significant effect on the environment be made subject to the assessment procedure provided for in that directive, but only those mentioned in Article 4 of that directive, which refers to the projects listed in Annexes I and II thereto (see, to that effect, judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C‑275/09, EU:C:2011:154, paragraph 25).75Finally, Article 2(1) and Article 4(1) of the EIA Directive, read together, indicate that projects covered by Annex I to that directive, present an inherent risk of significant effects on the environment and therefore an environmental impact assessment is indispensable in those cases (see, to that effect, on the obligation to conduct an impact assessment, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 74, and of 11 February 2015, Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 20). (1) The application of Annexes I and II to the EIA Directive 76Point 2(b) of Annex I to the EIA Directive lists nuclear power stations and other nuclear reactors, including their dismantling and decommissioning, among the projects which under Article 4(1) of that directive are subject to an assessment in accordance with Articles 5 to 10 of that directive.77Consequently, it must be examined whether measures such as those at issue in the main proceedings, along with the work to which those measures are inextricably linked, may fall within the scope of point 24 of Annex I to the EIA Directive, which refers to ‘any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex’, or of point 13(a) of Annex II to that directive, which refers to ‘any change or extension of projects listed in Annex I or this Annex, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I)’.78As regards point 24 of Annex I to the EIA Directive, it is evident from the wording and general scheme of that provision that it applies to any change or extension to a project, which by virtue of, inter alia, its nature or scale, presents risks that are similar, in terms of their effects on the environment, to those posed by the project itself.79The measures at issue in the main proceedings, which have the effect of extending, by a significant period of 10 years, the duration of consents to produce electricity for industrial purposes with respect to both power stations in question, which had up until then been limited to 40 years by the Law of 31 January 2003, combined with major renovation works necessary due to the ageing of those power stations and the obligation to bring them into line with safety standards, must be found to be of a scale that is comparable, in terms of the risk of environmental effects, to that when those power stations were first put into service.80The Court therefore finds that those measures and that work fall within the scope of point 24 of Annex I to the EIA Directive. Such a project carries an inherent risk of significant effects on the environment, within the meaning of Article 2(1) of that directive, and must therefore be subject to an assessment of its environmental impact under Article 4(1) of that directive.81Furthermore, given that the Doel 1 and Doel 2 power stations are located close to the border of the Kingdom of Belgium and the Kingdom of the Netherlands, it is indisputable that the project could also have significant effects on the environment in the latter Member State, within the meaning of Article 7(1) of that directive. (2) The stage at which the environmental impact assessment must be conducted 82Article 2(1) of the EIA Directive states that the environmental impact assessment required by that directive must be conducted ‘before consent is given’ in respect of projects covered by that directive.83As the Court has previously pointed out, the requirement that such an assessment should precede consent is justified by the fact that it is necessary, in the decision-making process, for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than to counteract their effects subsequently (judgment of 31 May 2018, Commission v Poland, C‑526/16, not published, EU:C:2018:356, paragraph 75 and the case-law cited).84It must also be stated that Article 1(2)(c) of the EIA Directive defines the term ‘development consent’ as the decision of the competent authority or authorities which entitles the developer to proceed with the project, a matter which should be determined, in principle, by the referring court, in the light of applicable national legislation.85Furthermore, where national law provides that the consent procedure is to be carried out in several stages, the environmental impact assessment in respect of a project must, in principle, be carried out as soon as it is possible to identify and assess all potential effects of the project on the environment (judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 52, and of 28 February 2008, Abraham and Others, C‑2/07, EU:C:2008:133, paragraph 26).86Where one of those stages is a principal decision and another an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of the latter procedure (judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 52, and of 28 February 2008, Abraham and Others, C‑2/07, EU:C:2008:133, paragraph 26).87In the present case, although it is for the referring court to determine, in the light of the applicable national legislation, whether the Law of 28 June 2015 constitutes development consent for the purposes of Article 1(2)(c) of the EIA Directive, it must be found that that legislation provides, in a precise and unconditional manner, first for the restarting of industrial production of electricity, for a period of almost 10 years, at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the date initially set by the national legislature for deactivating and ceasing industrial production of electricity at that power station and, second, for deferral, also by a period of 10 years, of the date initially set by the national legislature at which industrial production of electricity at an active power station would cease.88Consequently, although further measures are required to implement those acts, in the context of a complex and regulated process designed, inter alia, to ensure compliance with safety and security standards applicable to industrial production of nuclear electricity, and those measures are subject, in particular, to prior approval by the AFCN, as is apparent from the explanatory memorandum to the Law of 28 June 2015, the fact remains that those measures, once adopted by the national legislature, define essential characteristics of the project and, a priori, should no longer be a matter for debate or reconsideration.89As regards the need for the issuing of a new specific consent for the production of electricity for industrial purposes in respect of one of the two power stations concerned in order to proceed with the project, that fact cannot justify postponing the environmental impact assessment until after the adoption of that legislation. Furthermore, the order for reference indicates that the amount of additional radioactive waste (350 m3) likely to be generated as a result of the measures at issue in the main proceedings had been brought to the attention of the Belgian Parliament prior to its adoption.90Moreover, as stated in paragraphs 63 to 71 of the present judgment, the measures at issue in the main proceedings, together with the upgrading work inextricably linked thereto, constitute a project within the meaning of the first indent of Article 1(2)(a) of the EIA Directive.91Against that background, it would appear, prima facie, that the Law of 28 June 2015 constitutes development consent, within the meaning of Article 1(2)(c) of that directive, or at the very least, a first step in the process of obtaining consent for the project, as regards its essential characteristics.92As regards whether the environmental impact assessment should extend to work inextricably linked to the measures at issue in the main proceedings, that would be the case if both the work and its potential effects on the environment were sufficiently identifiable at that stage of the consent procedure, a finding that it is for the referring court to make. On that point, it is apparent from the order for reference, as previously noted in paragraph 68 of the present judgment, that both the nature and cost of the work entailed by the measures contained in the Law of 28 June 2015 were also known to the Belgian Parliament prior to the adoption of that law.93Furthermore, if the project at issue in the main proceedings is likely to have significant effects on the environment in another Member State, it must also be subject to a procedure for transboundary assessment under Article 7 of the EIA Directive.94In the light of all the foregoing, the answer to Question 6(a) to (c) is that the first indent of Article 1(2)(a), Article 2(1) and Article 4(1) of the EIA Directive must be interpreted as meaning that the restarting of industrial production of electricity for a period of almost 10 years at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the deadline initially set by the national legislature for deactivating and ceasing production at that power station, and deferral, also by 10 years, of the date initially set by the legislature for deactivating and ceasing industrial production of electricity at an active power station, measures which entail work to upgrade the power stations in question such as to alter the physical aspect of the sites, constitute a ‘project’, within the meaning of that directive, and subject to the findings that are for the referring court to make, an environmental impact assessment must, in principle, be carried out with respect to that project prior to the adoption of those measures. The fact that the implementation of those measures involves subsequent acts, such as the issue, for one of the power stations in question, of a new specific consent for the production of electricity for industrial purposes, is not decisive in that respect. Work that is inextricably linked to those measures must also be made subject to such an assessment before the adoption of those measures if its nature and potential impact on the environment are sufficiently identifiable at that stage, a finding which it is for the referring court to make. 2. Question 6(d) 95By Question 6(d), the referring court asks, in essence, whether Article 2(4) of the EIA Directive must be interpreted as permitting an exemption, in respect of a project such as that at issue in the main proceedings, from the requirement to conduct an environmental impact assessment on grounds linked with the security of the electricity supply in the Member State in question.96In accordance with the first subparagraph of Article 2(4) of the EIA Directive, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions of that directive, without prejudice, however, to Article 7 of that directive on the obligations incumbent on Member States in whose territory a project that is likely to have significant effects on the environment in another Member State is intended to be carried out.97Although it is conceivable that the need to ensure the security of the electricity supply to a Member State could amount to an exceptional case, within the meaning of the first subparagraph of Article 2(4) of the EIA Directive, which would justify exempting a project from environmental impact assessment, it should be noted that points (a) to (c) of the second subparagraph of Article 2(4) of that directive impose specific obligations upon Member States wishing to rely on that exemption.98In such a case, the Member States concerned are required to consider whether another form of assessment would be appropriate, make available to the public concerned the information thereby obtained, and inform the Commission, prior to granting consent, of the reasons justifying the exemption granted, and provide it with the information, if any, made available to their own nationals.99As noted by the Advocate General in point 150 of her Opinion, these obligations are not mere formal requirements, but conditions designed to ensure that the objectives of the EIA Directive are met, as far as possible.100In the present case, although it is a matter for the referring court to determine whether the Kingdom of Belgium has met those obligations, it may be noted at this stage that the Commission has stated in its written observations that it has not been informed by that Member State that such an exemption had been granted.101Moreover, the exemption of a project under Article 2(4) of the EIA Directive from the requirement to conduct an environmental impact assessment is only permissible if the Member State concerned can show that the alleged risk to security of the electricity supply is reasonably probable and that that project is sufficiently urgent to justify not carrying out such an assessment. Furthermore, as stated in paragraph 96 of the present judgment, the exemption is applicable without prejudice to Article 7 of that directive, on the assessment of projects with transboundary effects.102In the light of the foregoing, the answer to Question 6(d) is that Article 2(4) of the EIA Directive must be interpreted as meaning that a Member State may exempt a project such as that at issue in the main proceedings from the requirement to conduct an environmental impact assessment in order to ensure the security of its electricity supply only where that Member State can demonstrate that the risk to the security of that supply is reasonably probable and that the project in question is sufficiently urgent to justify not carrying out the assessment, subject to compliance with the obligations in points (a) to (c) of the second subparagraph of Article 2(4) of that directive. However, that possibility of granting an exemption is without prejudice to the obligations incumbent on the Member State concerned under Article 7 of that directive. 3. Question 7 103By Question 7, the referring court seeks, in essence, to ascertain whether Article 1(4) of the EIA Directive must be interpreted as meaning that national legislation such as that at issue in the main proceedings constitutes a specific act of national legislation, within the meaning of that provision, which is excluded, by virtue of that provision, from the scope of that directive.104In that regard, Article 1(4) of the EIA Directive, which reproduced the content of Article 1(5) of Directive 85/337, requires two conditions to be met if a project is to be excluded from the scope of the EIA Directive.105The first condition is that the project must be adopted by a specific act of legislation that has the same characteristics as a development consent. In particular, that act must grant the developer the right to proceed with the project (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 32 and the case-law cited).106In addition, the project must be adopted in detail, that is to say, in a sufficiently precise and definitive manner, so that the legislative act adopting the project must include, like a development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment. The legislative act must demonstrate that the objectives of the EIA Directive have been achieved as regards the project in question (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 33 and the case-law cited).107It follows that the details of a project cannot be considered to have been adopted by a legislative act, for the purposes of Article 1(4) of the EIA Directive, if that act does not include the elements necessary to assess the environmental impact of the project or if the adoption of other measures is needed in order for the developer to be entitled to proceed with the project (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 34 and the case-law cited).108The second condition laid down in Article 1(4) of the EIA Directive is that the objectives of that directive, including that of making available information, are achieved through the legislative process. It follows from Article 2(1) of that directive that the essential objective of the directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are subject to an assessment with regard to their environmental effects before consent is given (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 35 and the case-law cited).109Consequently, the legislature must have sufficient information at its disposal at the time when the project concerned is adopted. In that regard, it follows from Article 5(3) of the EIA Directive that the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, the data required to identify and assess the main effects which the project is likely to have on the environment, an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects, and a non‑technical summary of the above information (see, to that effect, judgments of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 43, and of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 37).110In the present case, it is for the referring court to determine whether those conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates (see, to that effect, judgments of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 47, and of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 41).111However, having regard to the information brought to the attention of the Court, that does not appear to be the case.112While the referring court mentions that studies and hearings were conducted prior to the adoption of the Law of 28 June 2015, the documents before the Court do not indicate that the national legislature had the information referred to in paragraph 109 of the present judgment on the measures at issue in the main proceedings or the work inextricably linked thereto, which have, together, been held to comprise a single project, in the answer to Question 6(a) to (c).113Furthermore, as is apparent from, in particular, paragraph 91 of the present judgment, a law such as that of 28 June 2015 could merely be the first step in the process of granting development consent in respect of the project at issue in the main proceedings, as regards the work that project entails, with the result that it also fails to satisfy one of the prerequisites of the project concerned being excluded from the scope of the EIA Directive under Article 1(4) thereof, namely that it was adopted in detail, by a specific legislative act.114In the light of the foregoing, the answer to Question 7 is that Article 1(4) of the EIA Directive must be interpreted as meaning that national legislation such as that at issue in the main proceedings is not a specific act of national legislation, within the meaning of that provision, that is excluded, by virtue of that provision, from the scope of that directive. B. Question 8, on the Habitats Directive 1. Question 8(a) to (c) 115By Question 8(a) to (c), the referring court asks, in essence, whether Article 6(3) of the Habitats Directive, read together with Articles 3 and 4 of the Birds Directive and, where relevant, in the light of the EIA Directive, must be interpreted as meaning that the measures at issue in the main proceedings constitute, given the upgrading work and work to ensure compliance with safety standards, a plan or project subject to assessment, under Article 6(3), and, if so, whether that assessment should be conducted before they are adopted by the legislature. The referring court also asks whether a distinction should be drawn dependent on whether the measures relate to one or other of the two power stations at issue in the main proceedings, having regard to the need to adopt subsequent administrative acts in respect of one power station, such as issue of a new specific consent for the production of electricity for industrial purposes. (a) Preliminary observations 116Article 6 of the Habitats Directive imposes upon the Member States a set of specific obligations and procedures designed, as is clear from Article 2(2) of that directive, to maintain, or as the case may be, restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest, in order to attain the more general aim pursued by that directive, which is to ensure a high level of environmental protection for the sites protected pursuant to it (see, to that effect, judgment of 17 April 2018, Commission v Poland(Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 106 and the case-law cited).117Article 6(3) of the Habitats Directive establishes an assessment procedure intended to ensure, by means of a prior examination, that a plan or project not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site (judgments of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 108 and the case-law cited, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 38).118Article 6(3) distinguishes two stages in the prescribed assessment procedure.119The first, the subject of that provision’s first sentence, requires Member States to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on the site. The second, the subject of the second sentence, which arises following the appropriate assessment, allows such a plan or project to be authorised only if it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4) of the directive (judgment of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 32).120Furthermore, an appropriate assessment of the implications of a plan or project implies that, before the plan or project is approved, all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity only if they have made certain that it will not adversely affect the integrity of that site. That is so where there is no reasonable scientific doubt as to the absence of such effects (judgment of 7 November 2018, Holohan and Others, C‑461/17, EU:C:2018:883, paragraph 33 and the case-law cited).121Furthermore, with regard to areas classified as special protection areas, the obligations arising from Article 6(3) of the Habitats Directive replace, in accordance with Article 7 of that directive, any obligations arising under the first sentence of Article 4(4) of the Birds Directive, as from the date of classification under the Birds Directive, where that date is later than the date of implementation of the Habitats Directive (judgments of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 109 and the case-law cited, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 27). (b) The definition of a ‘project’, for the purposes of the Habitats Directive 122As the Habitats Directive does not define the term ‘project’, for the purposes of Article 6(3), account should be taken of the definition of ‘project’ in Article 1(2)(a) of the EIA Directive (see, to that effect, judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraphs 23, 24 and 26; of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 38; of 17 July 2014, Commission v GreeceC‑600/12, not published, EU:C:2014:2086, paragraph 75; and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 60).123The Court has previously held that if an activity is covered by the EIA Directive, it must, a fortiori, be covered by the Habitats Directive (judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 65).124It follows that if an activity is regarded as a ‘project’ within the meaning of the EIA Directive, it may constitute a ‘project’ within the meaning of the Habitats Directive (judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 66).125Given the answer to Question 6(a) to (c), it must be held that measures such as those at issue in the main proceedings, together with the work inextricably linked thereto, constitute a project, for the purposes of the Habitats Directive.126Further, it is not disputed that the project at issue in the main proceedings is neither linked to nor necessary for the management of a protected site.127Last, the fact that a recurrent activity has been authorised under national law before the entry into force of the Habitats Directive does not constitute, in itself, an obstacle to such an activity being regarded, at the time of each subsequent intervention, as a distinct project for the purposes of that directive, at the risk of permanently excluding that activity from any prior assessment of its implications for that site (see, to that effect, judgments of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 41, and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 77).128To that end, it must be determined whether, having regard in particular to the regularity or nature of some activities or the conditions under which they are carried out, they must be regarded as constituting a single operation, and can be considered to be one and the same project for the purposes of Article 6(3) of the Habitats Directive (see, to that effect, judgments of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 47, and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 78).129That would not be the case where there is no continuity in the activity, inter alia when the location and conditions in which it is carried out are not the same (judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 83).130In the present case, while industrial electricity production by the Doel 1 and Doel 2 power stations was authorised before the entry into force of the Habitats Directive for an unlimited period, the Law of 31 January 2003 limited that period of activity to 40 years, up until 15 February 2015 for the Doel 1 power station and 1 December 2015 for the Doel 2 power station. As noted by the referring court, that legislative choice was modified by the measures at issue in the main proceedings, with the result, in particular, that one of those two power stations had to be restarted.131It is also undisputed that upon implementation of those measures, industrial production at those two power stations will not be carried out under operational conditions identical to those initially authorised, if only due to scientific developments and new safety standards, the latter of which justify, as stated in paragraphs 64 to 66 of the present judgment, proceeding with major upgrading work. Furthermore, the order for reference indicates that a production consent was granted to the operator of those power stations after the Habitats Directive had entered into force, following an increase in their capacity.132It follows that the measures at issue in the main proceedings, together with the work inextricably linked thereto, constitute a distinct project, subject to the rules of assessment provided for in Article 6(3) of the Habitats Directive.133The fact that the national authority that is competent to approve the plan or project in question is the legislature has no bearing in this matter. In contrast to the provisions of the EIA Directive, no derogation is possible from the assessment under Article 6(3) of the Habitats Directive on the grounds that the competent authority to grant consent to the project in question is the legislature (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 69). (c) The risk of a protected site being significantly affected 134It follows from the Court’s case-law that the requirement of an appropriate assessment of the implications of a plan or project under Article 6(3) of the Habitats Directive is conditional on there being a likelihood or a risk that the plan or project will have a significant effect on the site concerned. Having regard to the precautionary principle, in particular, such a risk is deemed to be present where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives for the site. The assessment of that risk must be made in the light, in particular, of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraphs 111 and 112 and the case-law cited).135In the present case, as apparent from extracts of parliamentary proceedings on the Law of 28 June 2015, reproduced in the order for reference, and as noted by the Advocate General in points 24 to 26 of her Opinion, the power stations that are the subject of the measures at issue in the main proceedings are located on the banks of the Scheldt, close to protected areas under the Habitats Directive and the Birds Directive, designated as such specifically for protected species of fish and cyclostomata in that river.136In that regard, the fact that a project is located outside a Natura 2000 area is not sufficient to exempt it from the requirements under Article 6(3) of the Habitats Directive (see, to that effect, judgments of 10 January 2006, Commission v Germany, C‑98/03, EU:C:2006:3, paragraphs 44 and 51, and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 29).137In the present case, it is abundantly clear, given the scale of the work involved and the length of the extension granted for industrial production of electricity at the two power stations, that the project at issue in the main proceedings is likely to undermine the conservation objectives for nearby protected sites, if only because of how those power stations operate, in particular, by collecting large volumes of water from the nearby river for use in the cooling system, which are then discharged into that river, but also the risk of a serious accident (see, by analogy, judgments of 10 January 2006, Commission v Germany, C‑98/03, EU:C:2006:3, paragraph 44, and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 30), there being no need to distinguish the two power stations.138Accordingly, a project such as that at issue in the main proceedings is likely to have a significant effect on protected sites within the meaning of Article 6(3) of the Habitats Directive.139It follows from the foregoing that Article 6(3) of the Habitats Directive must be interpreted as meaning that measures such as those at issue in the main proceedings, together with the work inextricably linked thereto, constitute a project in respect of which an appropriate assessment of its effects on the site concerned must be conducted under that directive, there being no need to distinguish whether those measures relate to one or other of the two power stations in question. (d) When the assessment should take place 140The second sentence of Article 6(3) of the Habitats Directive specifies that following an appropriate assessment, the competent national authorities are to ‘agree’ to the project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.141It follows that the assessment must be conducted before agreement is given.142Furthermore, while the Habitats Directive does not define the conditions governing how the authorities ‘agree’ to a given project under Article 6(3) of that directive, the definition of ‘development consent’ in Article 1(2)(c) of the EIA Directive is relevant in defining that term.143Accordingly, by analogy with the Court’s findings on the EIA Directive, if national law provides for a number of steps in the consent procedure, the assessment under Article 6(3) of the Habitats Directive, should, in principle, be carried out as soon as the effects which the project in question is likely to have on a protected site are sufficiently identifiable.144Consequently, for reasons similar to those set out in paragraphs 87 to 91 of the present judgment, national legislation such as the Law of 28 June 2015 has the characteristics of an agreement given by the authorities in respect of the project concerned, for the purposes of Article 6(3) of the Habitats Directive, and the fact that subsequent acts must be adopted in order to proceed with that project, specifically a new specific consent for production of electricity for industrial purposes at one of the two power stations in question, does not justify the failure to conduct an appropriate assessment of those effects before the adoption of that legislation. Moreover, as regards the work that is inextricably linked to the measures at issue in the main proceedings, if its nature and potential effects on the protected sites are sufficiently identifiable, a finding which it is for the national court to make, an assessment must be conducted of that work at that stage of the consent procedure.145In the light of the foregoing, the answer to Question 8(a) to (c) is that Article 6(3) of the Habitats Directive must be interpreted as meaning that measures such as those at issue in the main proceedings, together with the work of upgrading and of ensuring compliance with current safety standards, constitute a project in respect of which an appropriate assessment of its effects on the protected sites concerned should be conducted. Such an assessment should be conducted in respect of those measures before they are adopted by the legislature. The fact that the implementation of those measures involves subsequent acts, such as the issue, for one of the power stations in question, of a new specific consent for the production of electricity for industrial purposes, is not decisive in that respect. Work that is inextricably linked to those measures must also be subject to such an assessment before the adoption of those measures if its nature and potential impact on the protected sites are sufficiently identifiable at that stage, a finding which it is for the referring court to make. 2. Question 8(d) 146By Question 8(d), the referring court asks, in essence, whether Article 6(4) of the Habitats Directive must be interpreted as meaning that the objective of ensuring the security of a Member State’s electricity supply constitutes an imperative reason of overriding public interest, within the meaning of that provision.147As a provision derogating from the criterion for authorisation laid down in the second sentence of Article 6(3) of the Habitats Directive, Article 6(4) thereof must be interpreted strictly and can be applied only after the implications of a plan or project have been analysed in accordance with Article 6(3) (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 189 and the case-law cited).148Under the first subparagraph of Article 6(4) of the Habitats Directive, if, in spite of the findings of an assessment carried out in accordance with the first sentence of Article 6(3) of that directive being negative, and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (see, to that effect, judgments of 20 September 2007, Commission v Italy, C‑304/05, EU:C:2007:532, paragraph 81, and of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 190).149Moreover, where the site concerned hosts a priority natural habitat type or a priority species, the second subparagraph of Article 6(4) of the Habitats Directive provides that the only considerations which may be raised are those relating to human health or public safety, or beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.150Knowledge of the effects of a plan or project, in the light of the conservation objectives relating to the site at issue, is thus a necessary prerequisite for the application of Article 6(4) of the Habitats Directive, since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified (judgments of 20 September 2007, Commission v Italy, C‑304/05, EU:C:2007:532, paragraph 83, and of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 191 and the case-law cited).151In the present case, it is apparent from the order for reference that Question 8(d) is based on the premiss that the studies and hearings conducted in the course of the procedure for the adoption of the measures at issue in the main proceedings made it possible to conduct an assessment that meets the requirements laid down in Article 6(3) of the Habitats Directive.152However, aside from the fact that it is not apparent from the documents before the Court that those studies and hearings made it possible to conduct an environmental impact assessment under the EIA Directive, the referring court would have to assess, in any event, whether such an assessment may be deemed to satisfy also the requirements of the Habitats Directive (see, by analogy, judgments of 22 September 2011, Valčiukienė and Others, C‑295/10, EU:C:2011:608, paragraph 62, and of 10 September 2015, Dimos Kropias Attikis, C‑473/14, EU:C:2015:582, paragraph 58).153Whatever the situation, it is necessary in particular, as noted in paragraph 120 of the present judgment, that all the aspects of the plan or project which can, either by themselves or in combination with other plans or projects, affect the conservation objectives of the protected sites concerned should be identified, in the light of the best scientific knowledge in the field (see, to that effect, judgments of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 113 and the case-law cited, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 40).154The referring court should also verify, if necessary, whether negative findings emerged from the studies and hearings conducted in the context of the procedure for the adoption of the measures at issue in the main proceedings, because, if not, Article 6(4) of the Habitats Directive would not be applicable.155As regards the question whether the objective of ensuring the security of a Member State’s electricity supply constitutes an imperative reason of overriding public interest within the meaning of the first subparagraph of Article 6(4) of the Habitats Directive, it should be noted that an interest capable of justifying proceeding with a plan or project must be both ‘public’ and ‘overriding’, which means that it must be of such an importance that it can be weighed against that directive’s objective of the conservation of natural habitats and wild fauna, including birds, and flora (judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 121).156In that regard, it may be noted that Article 194(1)(b) TFEU identifies security of energy supply in the European Union as one of the fundamental objectives of EU policy in the field of energy (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 48).157Furthermore, and in any event, the objective of ensuring the security of electricity supply in a Member State at all times fulfils the conditions specified in paragraph 155 of the present judgment.158However, if a protected site likely to be affected by a project hosts a priority natural habitat type or species, within the meaning of the Habitats Directive, in circumstances such as those in the main proceedings, the only ground capable of constituting a public security ground for the purposes of the second subparagraph of Article 6(4) of that directive that would justify proceeding with the project is the need to nullify a genuine and serious threat of rupture of that Member State’s electricity supply.159It follows that the answer to Question 8(d) is that the first subparagraph of Article 6(4) of the Habitats Directive must be interpreted as meaning that the objective of ensuring security of the electricity supply in a Member State at all times constitutes an imperative reason of overriding public interest, within the meaning of that provision. The second subparagraph of Article 6(4) of that directive must be interpreted as meaning that if a protected site likely to be affected by a project hosts a priority natural habitat type or priority species, a finding which it is for the referring court to make, only a need to nullify a genuine and serious threat of rupture of that Member State’s electricity supply constitutes, in circumstances such as those in the main proceedings, a public security ground, within the meaning of that provision. C. Questions 1 to 3, on the Espoo Convention 160By Questions 1 to 3, the referring court asks, in essence, whether the Espoo Convention must be interpreted as meaning that the environmental impact assessment provided for by that Convention must be conducted in respect of measures such as those at issue in the main proceedings.161However, as noted in paragraph 93 of the present judgment, measures such as those at issue in the main proceedings form part of a project that is likely to have significant effects on the environment in another Member State, and that project must undergo an assessment procedure of its transboundary effects in accordance with Article 7 of the EIA Directive, which takes account of the requirements of the Espoo Convention, as indicated by recital 15 of the EIA Directive.162As a result, there is no need to answer Questions 1 to 3, in relation to the Espoo Convention. D. Questions 4 and 5, on the Aarhus Convention 163By its Questions 4 and 5, the referring court asks, in essence, whether Article 6 of the Aarhus Convention must be interpreted as meaning that the public participation requirements under that Convention apply to measures such as those at issue in the main proceedings.164It is apparent from the order for reference that the Cour constitutionnelle (Constitutional Court) raises those questions on account of its doubts as to whether the EIA Directive applies to those measures, yet, as is apparent from recitals 18 to 20 of that directive, the EIA Directive is intended to take account of the provisions of the Aarhus Convention.165It follows, however, from the answers to Questions 6 and 7 that measures such as those at issue in the main proceedings, together with the work inextricably linked thereto, constitute a project in respect of which, prior to its adoption, an environmental impact assessment must be conducted under the EIA Directive.166Consequently, there is no need to answer Questions 4 and 5. E. Question 9, on maintaining the effects of the law in question in the main proceedings 167By Question 9, the referring court asks, in essence, whether EU law allows a national court to maintain the effects of measures such as those at issue in the main proceedings for the time necessary to remedy any infringement of the EIA Directive and the Habitats Directive.168In that regard, while Article 2(1) of the EIA Directive imposes an obligation to conduct a prior assessment of projects covered by that provision, the Habitats Directive also provides, in respect of projects subject to assessment under Article 6(3) of that directive, that Member States may agree to a project only after they have ascertained that it will not adversely affect the integrity of the site concerned.169However, neither the EIA Directive nor the Habitats Directive specify what action should be taken in the event of infringement of the obligations laid down by those directives.170Nonetheless, under the principle of sincere cooperation laid down in Article 4(3) TEU, Member States are required to nullify the unlawful consequences of that infringement of EU law. The competent national authorities are therefore under an obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted in order to carry out such an assessment (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35 and the case-law cited).171That obligation is also incumbent on national courts before which an action against a national measure including such a consent has been brought. The detailed procedural rules applicable to such actions are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (the principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (the principle of effectiveness) (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 45 and the case-law cited).172Consequently, courts before which actions are brought in that regard must adopt, on the basis of their national law, measures to suspend or annul the project adopted in breach of the obligation to carry out an environmental assessment (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre Wallonne, C‑41/11, EU:C:2012:103, paragraph 46 and the case-law cited).173It is true that the Court has also held that EU law does not preclude national rules which, in certain cases, permit the regularisation of operations or measures which are unlawful in the light of EU law (judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 37 and the case-law cited).174However, such a possible regularisation would have to be subject to the condition that it does not offer the parties concerned the opportunity to circumvent the rules of EU law or to refrain from applying them, and should remain the exception (judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 38 and the case-law cited).175Consequently, in the event of failure to carry out an assessment of the environmental impact of a project required under the EIA Directive, although Member States are required to nullify the unlawful consequences of that failure, EU law does not preclude regularisation through the conducting of such an assessment while the project is under way or even after it has been completed, on the twofold condition, first, that national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to refrain from applying them, and second, that an assessment carried out for regularisation purposes is not conducted solely in respect of the project’s future environmental impact, but must also take into account its environmental impact since the time of completion of that project (see, to that effect, judgments of 26 July 2017, Comune di Corridoniaand Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 43, and of 28 February 2018, Comune di Castelbellino, C‑117/17, EU:C:2018:129, paragraph 30).176By analogy, it must be held that EU law does not preclude such regularisation, subject to the same conditions, in the event of failure to conduct a prior impact assessment of the effects of the project concerned on a protected site, as required by Article 6(3) of the Habitats Directive.177It must be added that only the Court of Justice may, in exceptional cases, for overriding considerations of legal certainty, allow temporary suspension of the ousting effect of a rule of EU law with respect to national law that is contrary thereto. If national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily, the uniform application of EU law would be undermined (see, to that effect, judgments of 8 September 2010, Winner Wetten, C‑409/06, EU:C:2010:503, paragraphs 66 and 67, and of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 33).178However, the Court has also held, in paragraph 58 of its judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103), that a national court may, given the existence of an overriding consideration relating to the protection of the environment, as applied in the case giving rise to that judgment, and provided that the conditions specified in that judgment are met, exceptionally be authorised to make use of a provision of its national law empowering it to maintain certain effects of an annulled national measure. It is thus apparent from that judgment that the Court intended to afford, on a case‑by‑case basis and by way of exception, a national court the power to adjust the effects of annulment of a national provision held to be incompatible with EU law, with due regard to the conditions laid down by the Court’s case-law (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 34).179In this instance, in accordance with the case-law cited in paragraph 177 of the present judgment, it is for the Court of Justice alone to determine the circumstances in which it may be justifiable, by way of exception, to maintain the effects of measures such as those at issue in the main proceedings on account of overriding considerations relating to the security of the electricity supply of the Member State concerned. In that regard, such considerations could justify maintaining the effects of national measures adopted in breach of the obligations under the EIA Directive and the Habitats Directive only if, in the event that the effects of those measure were annulled or suspended, there was a genuine and serious threat of disruption to the electricity supply of the Member State concerned, which could not be remedied by any other means or alternatives, particularly in the context of the internal market.180It is for the referring court to assess whether, given the other means and alternatives available to the Member State concerned for the purpose of ensuring electricity supply within its territory, the need to respond to such a threat justifies maintaining, exceptionally, the effects of the measures contested before that court.181In any event, the effects may only be maintained for as long as is strictly necessary to remedy the breach.182In the light of the foregoing, the answer to Question 9 is that EU law must be interpreted as meaning that if domestic law allows it, a national court may, by way of exception, maintain the effects of measures, such as those at issue in the main proceedings, adopted in breach of the obligations laid down by the EIA Directive and the Habitats Directive, where such maintenance is justified by overriding considerations relating to the need to nullify a genuine and serious threat of rupture of the electricity supply in the Member State concerned, which cannot be remedied by any other means or alternatives, particularly in the context of the internal market. The effects may only be maintained for as long as is strictly necessary to remedy the breach. IV. Costs 183Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. The first indent of Article 1(2)(a), Article 2(1) and Article 4(1) of Directive 2011/92/EU of the European Parliament and the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as meaning that the restarting of industrial production of electricity for a period of almost 10 years at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the deadline initially set by the national legislature for deactivating and ceasing production at that power station, and deferral, also by 10 years, of the date initially set by the legislature for deactivating and ceasing industrial production of electricity at an active power station, measures which entail work to upgrade the power stations in question such as to alter the physical aspect of the sites, constitute a ‘project’, within the meaning of that directive, and subject to the findings that are for the referring court to make, an environmental impact assessment must, in principle, be carried out with respect to that project prior to the adoption of those measures. The fact that the implementation of those measures involves subsequent acts, such as the issue, for one of the power stations in question, of a new specific consent for the production of electricity for industrial purposes, is not decisive in that respect. Work that is inextricably linked to those measures must also be made subject to such an assessment before the adoption of those measures if its nature and potential impact on the environment are sufficiently identifiable at that stage, a finding which it is for the referring court to make. 2. Article 2(4) of Directive 2011/92 must be interpreted as meaning that a Member State may exempt a project such as that at issue in the main proceedings from the requirement to conduct an environmental impact assessment in order to ensure the security of its electricity supply only where that Member State can demonstrate that the risk to the security of that supply is reasonably probable and that the project in question is sufficiently urgent to justify not carrying out the assessment, subject to compliance with the obligations in points (a) to (c) of the second subparagraph of Article 2(4) of that directive. However, that possibility of granting an exemption is without prejudice to the obligations incumbent on the Member State concerned under Article 7 of that directive. 3. Article 1(4) of Directive 2011/92 must be interpreted as meaning that national legislation such as that at issue in the main proceedings is not a specific act of national legislation, within the meaning of that provision, that is excluded, by virtue of that provision, from the scope of that directive. 4. Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that measures such as those at issue in the main proceedings, together with the work of upgrading and of ensuring compliance with current safety standards, constitute a project in respect of which an appropriate assessment of its effects on the protected sites concerned should be conducted. Such an assessment should be conducted in respect of those measures before they are adopted by the legislature. The fact that the implementation of those measures involves subsequent acts, such as the issue, for one of the power stations in question, of a new specific consent for the production of electricity for industrial purposes, is not decisive in that respect. Work that is inextricably linked to those measures must also be subject to such an assessment before the adoption of those measures if its nature and potential impact on the protected sites are sufficiently identifiable at that stage, a finding which it is for the referring court to make. 5. The first subparagraph of Article 6(4) of Directive 92/43 must be interpreted as meaning that the objective of ensuring security of the electricity supply in a Member State at all times constitutes an imperative reason of overriding public interest, within the meaning of that provision. The second subparagraph of Article 6(4) of that directive must be interpreted as meaning that if a protected site likely to be affected by a project hosts a priority natural habitat type or priority species, a finding which it is for the referring court to make, only a need to nullify a genuine and serious threat of rupture of that Member State’s electricity supply constitutes, in circumstances such as those in the main proceedings, a public security ground, within the meaning of that provision. 6. EU law must be interpreted as meaning that if domestic law allows it, a national court may, by way of exception, maintain the effects of measures, such as those at issue in the main proceedings, adopted in breach of the obligations laid down by Directive 2011/92 and Directive 92/43, where such maintenance is justified by overriding considerations relating to the need to nullify a genuine and serious threat of rupture of the electricity supply in the Member State concerned, which cannot be remedied by any other means or alternatives, particularly in the context of the internal market. The effects may only be maintained for as long as is strictly necessary to remedy the breach. LenaertsSilva de LapuertaBonichotPrechalVilarasReganvon DanwitzToaderLycourgosRosasIlešičMalenovskýSafjanŠvábyFernlundDelivered in open court in Luxembourg on 29 July 2019.[Signatures]( *1 ) Language of the case: French. | 714e6-6cec32e-4da4 | EN |
The operator of a website that features a Facebook ‘Like’ button can be a controller jointly with Facebook in respect of the collection and transmission to Facebook of the personal data of visitors to its website | 29 July 2019 ( *1 )(Reference for a preliminary ruling — Protection of individuals with regard to the processing of personal data — Directive 95/46/EC — Article 2(d) — Notion of ‘controller’ — Operator of a website who has embedded on that website a social plugin that allows the personal data of a visitor to that website to be transferred to the provider of that plugin — Article 7(f) — Lawfulness of data processing — Taking into account of the interest of the operator of the website or of that of the provider of the social plugin — Article 2(h) and Article 7(a) — Consent of the data subject — Article 10 — Informing the data subject — National legislation allowing consumer-protection associations to bring or defend legal proceedings)In Case C‑40/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), made by decision of 19 January 2017, received at the Court on 26 January 2017, in the proceedings Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW eV, interveners: Facebook Ireland Ltd, Landesbeauftragte für Datenschutz und Informationsfreiheit Nordrhein-Westfalen, THE COURT (Second Chamber),composed of K. Lenaerts, President of the Court, acting as President of the Second Chamber, A. Prechal, C. Toader, A. Rosas (Rapporteur) and M. Ilešič, Judges,Advocate General: M. Bobek,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 6 September 2018,after considering the observations submitted on behalf of:–Fashion ID GmbH & Co. KG, by C.-M. Althaus and J. Nebel, Rechtsanwälte,Verbraucherzentrale NRW eV, by K. Kruse, C. Rempe and S. Meyer, Rechtsanwälte,Facebook Ireland Ltd, by H.-G. Kamann, C. Schwedler and M. Braun, Rechtsanwälte, and by I. Perego, avvocatessa,Landesbeauftragte für Datenschutz und Informationsfreiheit Nordrhein-Westfalen, by U. Merger, acting as Agent,the German Government, initially by T. Henze and J. Möller, and subsequently by J. Möller, acting as Agents,the Belgian Government, by P. Cottin and L. Van den Broeck, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato,the Austrian Government, initially by C. Pesendorfer, and subsequently by G. Kunnert, acting as Agents,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by H. Krämer and H. Kranenborg, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 19 December 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Articles 2, 7, 10 and 22 to 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).2The request has been made in proceedings between Fashion ID GmbH & Co. KG and Verbraucherzentrale NRW eV concerning Fashion ID’s embedding of a social plugin provided by Facebook Ireland Ltd on the website of Fashion ID. Legal context European Union law 3With effect from 25 May 2018, Directive 95/46 was repealed and replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ 2016 L 119, p. 1). However, in the light of the date of the facts in the dispute in the main proceedings, it is Directive 95/46 that is applicable to that dispute.4Recital 10 of Directive 95/46 states:‘Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950,] and in the general principles of [EU] law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the [European Union]’.5Article 1 of Directive 95/46 provides:‘1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.’6Article 2 of that directive provides:‘For the purposes of this Directive:(a)“personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;(b)“processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;…(d)“controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or [EU] laws or regulations, the controller or the specific criteria for his nomination may be designated by national or [EU] law;(f)“third party” shall mean any natural or legal person, public authority, agency or any other body other than the data subject, the controller, the processor and the persons who, under the direct authority of the controller or the processor, are authorised to process the data;(g)“recipient” shall mean a natural or legal person, public authority, agency or any other body to whom data are disclosed, whether a third party or not; however, authorities which may receive data in the framework of a particular inquiry shall not be regarded as recipients;(h)“the data subject’s consent” shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.’7Article 7 of that directive states:‘Member States shall provide that personal data may be processed only if:the data subject has unambiguously given his consent; orprocessing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection under Article 1(1).’8Article 10 of Directive 95/46, headed ‘Information in cases of collection of data from the data subject’, provides:‘Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it:the identity of the controller and of his representative, if any;the purposes of the processing for which the data are intended;(c)any further information such asthe recipients or categories of recipients of the data,whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,the existence of the right of access to and the right to rectify the data concerning himin so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.’9Article 22 of Directive 95/46 is worded as follows:‘Without prejudice to any administrative remedy for which provision may be made, inter alia before the supervisory authority referred to in Article 28, prior to referral to the judicial authority, Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.’10Article 23 of that directive states:‘1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered.2. The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage.’11Article 24 of that directive provides:‘The Member States shall adopt suitable measures to ensure the full implementation of the provisions of this Directive and shall in particular lay down the sanctions to be imposed in case of infringement of the provisions adopted pursuant to this Directive.’12Article 28 of Directive 95/46 states:‘1. Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.These authorities shall act with complete independence in exercising the functions entrusted to them.3. Each authority shall in particular be endowed with:the power to engage in legal proceedings where the national provisions adopted pursuant to this Directive have been violated or to bring these violations to the attention of the judicial authorities.4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The person concerned shall be informed of the outcome of the claim.…’13Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11), (‘Directive 2002/58’) provides:‘Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive [95/46], inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.’14Article 1(1) of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30), as amended by Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 (OJ 2013 L 165, p. 1), (‘Directive 2009/22’) provides:‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to actions for an injunction referred to in Article 2 aimed at the protection of the collective interests of consumers included in the Union acts listed in Annex I, with a view to ensuring the smooth functioning of the internal market.’15‘1. Member States shall designate the courts or administrative authorities competent to rule on proceedings commenced by qualified entities within the meaning of Article 3 seeking:an order with all due expediency, where appropriate by way of summary procedure, requiring the cessation or prohibition of any infringement;16‘This Directive shall not prevent Member States from adopting or maintaining in force provisions designed to grant qualified entities and any other person concerned more extensive rights to bring action at national level.’17Article 80 of Regulation 2016/679 reads as follows:‘1. The data subject shall have the right to mandate a not-for-profit body, organisation or association which has been properly constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest, and is active in the field of the protection of data subjects’ rights and freedoms with regard to the protection of their personal data to lodge the complaint on his or her behalf, to exercise the rights referred to in Articles 77, 78 and 79 on his or her behalf, and to exercise the right to receive compensation referred to in Article 82 on his or her behalf where provided for by Member State law.2. Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate, has the right to lodge, in that Member State, a complaint with the supervisory authority which is competent pursuant to Article 77 and to exercise the rights referred to in Articles 78 and 79 if it considers that the rights of a data subject under this Regulation have been infringed as a result of the processing.’ German law 18Paragraph 3(1) of the version of the Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition) applicable to the dispute in the main proceedings (‘the UWG’) provides:‘Unfair commercial practices shall be prohibited.’19Paragraph 3a of the UWG is worded as follows:‘A person shall be regarded as acting unfairly where he infringes a statutory provision that is also intended to regulate market behaviour in the interests of market participants and the infringement is liable to have a significantly adverse effect on the interests of consumers, other market participants or competitors.’20Paragraph 8 of the UWG provides:‘(1) Any commercial practice which is unlawful under Paragraph 3 or Paragraph 7 may give rise to an order to cease and desist and, where there is a risk of recurrence, to a prohibition order. An application for a prohibition order may be made as from the time at which there is a risk of such unlawful practice within the meaning of Paragraph 3 or Paragraph 7 occurring.(3) Applications for the orders referred to in subparagraph (1) may be lodged by:3. qualified entities which prove that they are registered on the list of qualified entities pursuant to Paragraph 4 of the Unterlassungsklagegesetz [(Law on injunctions)] or on the list of the European Commission pursuant to Article 4(3) of Directive [2009/22];21Paragraph 2 of the Law on injunctions provides:‘(1) Any person who infringes the provisions in place to protect consumers (consumer-protection laws), other than in the application or recommendation of general conditions of sale, may have an order to cease and desist and a prohibition order imposed on him in the interests of consumer protection. …(2) For the purposes of this provision, “consumer-protection laws” shall mean, in particular:11. the provisions that regulate the lawfulnessof the collection of a consumer’s personal data by a trader, orof the processing or use of personal data collected about a consumer by a traderif the data are collected, processed or used for the purposes of publicity, market and opinion research, operation of a credit agency, preparation of personality and usage profiles, address trading, other data trading or comparable commercial purposes.’22Paragraph 12(1) of the Telemediengesetz (Law on telemedia) (‘the TMG’) is worded as follows:‘A service provider may collect and use personal data to make telemedia available only in so far as this Law or another legislative provision expressly relating to telemedia so permits or the user has consented to it.’23Paragraph 13(1) of the TMG states:‘At the beginning of the use operation the service provider shall inform the user, in a generally understandable way, regarding the nature, extent and purpose of the collection and use of personal data and the processing of his data in States outside the scope of application of Directive [95/46] unless the user has already been informed thereof. In the case of an automated process allowing subsequent identification of the user and which prepares the collection or use of personal data, the user shall be informed at the beginning of this process. The content of the information conveyed to the user must be retrievable for the user at any time.’24Paragraph 15(1) of the TMG provides:‘A service provider may collect and use the personal data of a user only to the extent necessary in order to facilitate, and charge for, the use of telemedia (data concerning use). Data concerning use include, in particular:1. features allowing identification of the user,2. information about the beginning, end and extent of the particular use, and3. information about the telemedia used by the user.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 25Fashion ID, an online clothing retailer, embedded on its website the ‘Like’ social plugin from the social network Facebook (‘the Facebook “Like” button’).26It is apparent from the order for reference that one feature of the internet is that, when a website is visited, the browser allows content from different sources to be displayed. Thus, for example, photos, videos, news and the Facebook ‘Like’ button at issue in the present case can be linked to a website and appear there. If a website operator intends to embed such third-party content, he places a link to the external content on that website. When the browser of a visitor to that website encounters such a link, it requests the content from the third-party provider and adds it to the appearance of the website at the desired place. For this to occur, the browser transmits to the server of the third-party provider the IP address of that visitor’s computer, as well as the browser’s technical data, so that the server can establish the format in which the content is to be delivered to that address. In addition, the browser transmits information relating to the desired content. The operator of a website embedding third-party content onto that website cannot control what data the browser transmits or what the third-party provider does with those data, in particular whether it decides to save and use them.27With regard, in particular, to the Facebook ‘Like’ button, it seems to be apparent from the order for reference that, when a visitor consults the website of Fashion ID, that visitor’s personal data are transmitted to Facebook Ireland as a result of that website including that button. It seems that that transmission occurs without that visitor being aware of it regardless of whether or not he or she is a member of the social network Facebook or has clicked on the Facebook ‘Like’ button.28Verbraucherzentrale NRW, a public-service association tasked with safeguarding the interests of consumers, criticises Fashion ID for transmitting to Facebook Ireland personal data belonging to visitors to its website, first, without their consent and, second, in breach of the duties to inform set out in the provisions relating to the protection of personal data.29Verbraucherzentrale NRW brought legal proceedings for an injunction before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) against Fashion ID to force it to stop that practice.30By decision of 9 March 2016, the Landgericht Düsseldorf (Regional Court, Düsseldorf) upheld in part the requests made by Verbraucherzentrale NRW, after having found that it has standing to bring proceedings under Paragraph 8(3)(3) of the UWG.31Fashion ID brought an appeal against that decision before the referring court, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany). Facebook Ireland intervened in that appeal in support of Fashion ID. Verbraucherzentrale NRW brought a cross-appeal seeking an extension of the ruling made against Fashion ID at first instance.32Fashion ID argues before the referring court that the decision of the Landgericht Düsseldorf (Regional Court, Düsseldorf) is incompatible with Directive 95/46.33First, Fashion ID claims that Articles 22 to 24 of that directive envisage granting legal remedies only to data subjects whose personal data are processed and the competent supervising authorities. Consequently, it argues, the action brought by Verbraucherzentrale NRW is inadmissible due to the fact that that association does not have standing to bring or defend legal proceedings under Directive 95/46.34Second, Fashion ID asserts that the Landgericht Düsseldorf (Regional Court, Düsseldorf) erred in finding that it was a controller, within the meaning of Article 2(d) of Directive 95/46, since it has no influence either over the data transmitted by the visitor’s browser from its website or over whether and, where applicable, how Facebook Ireland uses those data.35In the first place, the referring court has doubts whether Directive 95/46 gives public-service associations the right to bring or defend legal proceedings in order to defend the interests of persons who have suffered harm. It takes the view that Article 24 of that directive does not preclude associations from being a party to legal proceedings, since, pursuant to that article, Member States are required to adopt ‘suitable measures’ to ensure the full implementation of that directive. Thus, the referring court concludes that national legislation allowing associations to bring legal proceedings in the interest of consumers may constitute such a ‘suitable measure’.36That court notes, in this regard, that Article 80(2) of Regulation 2016/679, which repealed and replaced Directive 95/46, expressly authorises the bringing of legal proceedings by such an association, which would tend to confirm that the latter directive did not preclude such an action.37Further, that court is uncertain whether the operator of a website, such as Fashion ID, that embeds on that website a social plugin allowing personal data to be collected can be considered to be a controller within the meaning of Article 2(d) of Directive 95/46 despite the latter having no control over the processing of the data transmitted to the provider of that plugin. In this context, the referring court refers to the case that gave rise to the judgment of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein (C‑210/16, EU:C:2018:388), which dealt with a similar question.38In the alternative, in the event that Fashion ID is not to be considered to be a controller, the referring court is uncertain whether that directive exhaustively regulates that notion, such that it precludes national legislation that establishes civil liability for a third party who infringes data protection rights. The referring court asserts that it would be possible to envisage Fashion ID being liable on this basis under national law as a ‘disrupter’ (‘Störer’).39If Fashion ID had to be considered to be a controller or was at least liable as a ‘disrupter’ for any data protection infringements by Facebook Ireland, the referring court is uncertain whether the processing of the personal data at issue in the main proceedings is lawful and whether the duty to inform the data subject under Article 10 of Directive 95/46 rests with Fashion ID or with Facebook Ireland.40Thus, first, with regard to the conditions for the lawfulness of the processing of data as provided for in Article 7(f) of Directive 95/46, the referring court expresses uncertainty as to whether, in a situation such as that at issue in the main proceedings, it is appropriate to take into account the legitimate interest of the operator of the website or that of the provider of the social plugin.41Second, that court is unsure who is required to obtain the consent of and inform the data subjects whose personal data are processed in a situation such as that at issue in the main proceedings. The referring court takes the view that the matter of who is obliged to inform the persons concerned, as provided for in Article 10 of Directive 95/46, is particularly important given that any embedding of third-party content on a website gives rise, in principle, to the processing of personal data, the scope and purpose of which are, however, unknown to the person embedding that content, namely the operator of the website concerned. That operator could not, therefore, provide the information required, to the extent that it is required to, meaning that the imposition of an obligation on the operator to inform the data subjects would, in practice, amount to a prohibition on the embedding of third-party content.42In those circumstances, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Do the rules in Articles 22, 23 and 24 of Directive [95/46] preclude national legislation which, in addition to the powers of intervention conferred on the data-protection authorities and the remedies available to the data subject, grants public-service associations the power to take action against the infringer in the event of an infringement in order to safeguard the interests of consumers?If Question 1 is answered in the negative:(2)In a case such as the present one, in which someone has embedded a programming code in his website which causes the user’s browser to request content from a third party and, to this end, transmits personal data to the third party, is the person embedding the content the “controller” within the meaning of Article 2(d) of Directive [95/46] if that person is himself unable to influence this data-processing operation?(3)If Question 2 is answered in the negative: Is Article 2(d) of Directive [95/46] to be interpreted as meaning that it definitively regulates liability and responsibility in such a way that it precludes civil claims against a third party who, although not a “controller”, nonetheless creates the cause for the processing operation, without influencing it?(4)Whose “legitimate interests”, in a situation such as the present one, are the decisive ones in the balancing of interests to be undertaken pursuant to Article 7(f) of Directive [95/46]? Is it the interests in embedding third-party content or the interests of the third party?(5)To whom must the consent to be declared under Articles 7(a) and 2(h) of Directive [95/46] be given in a situation such as that in the present case?(6)Does the duty to inform under Article 10 of Directive [95/46] also apply in a situation such as that in the present case to the operator of the website who has embedded the content of a third party and thus creates the cause for the processing of personal data by the third party?’ Consideration of the questions referred The first question 43By its first question the referring court asks, in essence, whether Articles 22 to 24 of Directive 95/46 must be interpreted as precluding national legislation which allows consumer-protection associations to bring or defend legal proceedings against a person allegedly responsible for an infringement of the laws protecting personal data.44As a preliminary point, it should be noted that, under Article 22 of Directive 95/46, Member States are required to provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.45The third indent of Article 28(3) of Directive 95/46 states that a supervisory authority that is responsible under Article 28(1) of that directive for monitoring the application within the territory of a Member State of the provisions adopted by that Member State pursuant to that directive is endowed with, inter alia, the power to engage in legal proceedings where the national provisions adopted pursuant to that directive have been violated or to bring those violations to the attention of the judicial authorities.46Article 28(4) of Directive 95/46 provides that a supervisory authority is to hear claims lodged by an association representing a data subject, within the meaning of Article 2(a) of that directive, concerning the protection of his rights and freedoms in regard to the processing of personal data.47However, no provision of that directive obliges Member States to provide, or expressly empowers them to provide, in their national law that an association can represent a data subject in legal proceedings or commence legal proceedings on its own initiative against the person allegedly responsible for an infringement of the laws protecting personal data.48Nevertheless, it does not follow from the above that Directive 95/46 precludes national legislation allowing consumer-protection associations to bring or defend legal proceedings against the person allegedly responsible for such an infringement.49Under the third paragraph of Article 288 TFEU, the Member States are required, when transposing a directive, to ensure that it is fully effective, but they retain a broad discretion as to the choice of ways and means of ensuring that it is implemented. That freedom of choice does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it seeks to attain (judgments of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraphs 24 and 25, and of 22 February 2018, Porras Guisado, C‑103/16, EU:C:2018:99, paragraph 57).50In this regard, it must be noted that one of the underlying objectives of Directive 95/46 is to ensure effective and complete protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 53, and of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 38). Recital 10 of Directive 95/46 adds that the approximation of the national laws applicable in this area must not result in any lessening of the protection which they afford but must, on the contrary, seek to ensure a high level of protection in the European Union (judgments of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 95, of 16 December 2008, Huber, C‑524/06, EU:C:2008:724, paragraph 50, and of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 28).51The fact that a Member State provides in its national legislation that it is possible for a consumer-protection association to commence legal proceedings against a person who is allegedly responsible for an infringement of the laws protecting personal data in no way undermines the objectives of that protection and, in fact, contributes to the realisation of those objectives.52Nevertheless, Fashion ID and Facebook Ireland submit that, since Directive 95/46 fully harmonised national provisions on data protection, any legal proceedings not expressly provided for by that directive are precluded. They argue that Articles 22, 23 and 28 of Directive 95/46 provide for legal proceedings brought only by data subjects and data protection supervisory authorities.53That argument, however, cannot be accepted.54Directive 95/46 does indeed amount to a harmonisation of national legislation on the protection of personal data that is generally complete (see, to that effect, judgments of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 29, and of 7 November 2013, IPI, C‑473/12, EU:C:2013:715, paragraph 31).55The Court has thus held that Article 7 of that directive sets out an exhaustive and restrictive list of cases in which the processing of personal data can be regarded as being lawful and that Member States cannot add new principles relating to the lawfulness of the processing of personal data to that article or impose additional requirements that have the effect of amending the scope of one of the six principles provided for in that article (judgments of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraphs 30 and 32, and of 19 October 2016, Breyer, C‑582/14, EU:C:2016:779, paragraph 57).56The Court has, however, also held that Directive 95/46 lays down rules that are relatively general since it has to be applied to a large number of very different situations. Those rules have a degree of flexibility and, in many instances, leave to the Member States the task of deciding the details or choosing between options, meaning that, in many respects, Member States have a margin of discretion in implementing that directive (see, to that effect, judgments of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraphs 83, 84 and 97, and of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 35).57This is also the case for Articles 22 to 24 of Directive 95/46, which, as the Advocate General noted in point 42 of his Opinion, are worded in general terms and do not amount to an exhaustive harmonisation of the national provisions stipulating the judicial remedies that can be brought against a person allegedly responsible for an infringement of the laws protecting personal data (see, by analogy, judgment of 26 October 2017, I, C‑195/16, EU:C:2017:815, paragraphs 57 and 58).58In particular, although Article 22 of that directive requires Member States to provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the personal data processing in question, that directive does not, however, contain any provisions specifically governing the conditions under which that remedy may be exercised (see, to that effect, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraphs 54 and 55).59In addition, Article 24 of Directive 95/46 provides that Member States are to adopt ‘suitable measures’ to ensure the full implementation of the provisions of that directive, without defining such measures. It seems that a provision making it possible for a consumer-protection association to commence legal proceedings against a person who is allegedly responsible for an infringement of the laws protecting personal data may constitute a suitable measure, within the meaning of that provision, that contributes, as observed in paragraph 51 above, to the realisation of the objectives of that directive, in accordance with the Court’s case-law (see, to that effect, judgment of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 97).60Moreover, contrary to what is claimed by Fashion ID, the fact that a Member State can provide for such a possibility in its national legislation does not appear to be such as to undermine the independence with which the supervisory authorities must perform the functions entrusted to them under Article 28 of Directive 95/46, since that possibility affects neither those authorities’ freedom to take decisions nor their freedom to act.61In addition, although it is true that Directive 95/46 does not appear among the measures listed in Annex I to Directive 2009/22, the fact nonetheless remains that, under Article 7 of the latter directive, that directive did not provide for an exhaustive harmonisation in that respect.62Last, the fact that Regulation 2016/679, which repealed and replaced Directive 95/46 and has been applicable since 25 May 2018, expressly authorises, in Article 80(2) thereof, Member States to allow consumer-protection associations to bring or defend legal proceedings against a person who is allegedly responsible for an infringement of the laws protecting personal data does not mean that Member States could not grant them that right under Directive 95/46, but confirms, rather, that the interpretation of that directive in the present judgment reflects the will of the EU legislature.63In the light of all the findings above, the answer to the first question is that Articles 22 to 24 of Directive 95/46 must be interpreted as not precluding national legislation which allows consumer-protection associations to bring or defend legal proceedings against a person allegedly responsible for an infringement of the protection of personal data. The second question 64By its second question, the referring court asks, in essence, whether the operator of a website, such as Fashion ID, that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider the personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46, despite that operator being unable to influence the processing of the data transmitted to that provider as a result.65In this regard, it should be noted that, in accordance with the aim pursued by Directive 95/46, namely to ensure a high level of protection of the fundamental rights and freedoms of natural persons, in particular their right to privacy, with respect to the processing of personal data, Article 2(d) of that directive defines the concept of ‘controller’ broadly as the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data (see, to that effect, judgment of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, EU:C:2018:388, paragraphs 26 and 27).66As the Court has held previously, the objective of that provision is to ensure, through a broad definition of the concept of ‘controller’, effective and complete protection of data subjects (judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 34, and of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, EU:C:2018:388, paragraph 28).67Furthermore, since, as Article 2(d) of Directive 95/46 expressly provides, the concept of ‘controller’ relates to the entity which ‘alone or jointly with others’ determines the purposes and means of the processing of personal data, that concept does not necessarily refer to a single entity and may concern several actors taking part in that processing, with each of them then being subject to the applicable data-protection provisions (see, to that effect, judgments of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, EU:C:2018:388, paragraph 29, and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 65).68The Court has also held that a natural or legal person who exerts influence over the processing of personal data, for his own purposes, and who participates, as a result, in the determination of the purposes and means of that processing, may be regarded as a controller within the meaning of Article 2(d) of Directive 95/46 (judgment of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 68).69Furthermore, the joint responsibility of several actors for the same processing, under that provision, does not require each of them to have access to the personal data concerned (see, to that effect, judgments of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, EU:C:2018:388, paragraph 38, and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 69).70That said, since the objective of Article 2(d) of Directive 95/46 is to ensure, through a broad definition of the concept of ‘controller’, the effective and comprehensive protection of the persons concerned, the existence of joint liability does not necessarily imply equal responsibility of the various operators engaged in the processing of personal data. On the contrary, those operators may be involved at different stages of that processing of personal data and to different degrees, with the result that the level of liability of each of them must be assessed with regard to all the relevant circumstances of the particular case (see, to that effect, judgment of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 66).71In this regard, it should be pointed out, first, that Article 2(b) of Directive 95/46 defines ‘processing of personal data’ as ‘any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction’.72It is apparent from that definition that the processing of personal data may consist in one or a number of operations, each of which relates to one of the different stages that the processing of personal data may involve.73Second, it follows from the definition of the concept of ‘controller’ in Article 2(d) of Directive 95/46 that, as is noted in paragraph 65 above, where several operators determine jointly the purposes and means of the processing of personal data, they participate in that processing as controllers.74Accordingly, as the Advocate General noted, in essence, in point 101 of his Opinion, it appears that a natural or legal person may be a controller, within the meaning of Article 2(d) of Directive 95/46, jointly with others only in respect of operations involving the processing of personal data for which it determines jointly the purposes and means. By contrast, and without prejudice to any civil liability provided for in national law in this respect, that natural or legal person cannot be considered to be a controller, within the meaning of that provision, in the context of operations that precede or are subsequent in the overall chain of processing for which that person does not determine either the purposes or the means.75In this case, subject to the investigations that it is for the referring court to carry out, it is apparent from the documents before the Court that, by embedding on its website the Facebook ‘Like’ button, Fashion ID appears to have made it possible for Facebook Ireland to obtain personal data of visitors to its website and that such a possibility is triggered as soon as the visitor consults that website, regardless of whether or not the visitor is a member of the social network Facebook, has clicked on the Facebook ‘Like’ button or is aware of such an operation.76In view of that information, it should be pointed out that the operations involving the processing of personal data in respect of which Fashion ID is capable of determining, jointly with Facebook Ireland, the purposes and means are, for the purposes of the definition of the concept of ‘processing of personal data’ in Article 2(b) of Directive 95/46, the collection and disclosure by transmission of the personal data of visitors to its website. By contrast, in the light of that information, it seems, at the outset, impossible that Fashion ID determines the purposes and means of subsequent operations involving the processing of personal data carried out by Facebook Ireland after their transmission to the latter, meaning that Fashion ID cannot be considered to be a controller in respect of those operations within the meaning of Article 2(d).77With regard to the means used for the purposes of the collection and disclosure by transmission of certain personal data of visitors to its website, it is apparent from paragraph 75 above that Fashion ID appears to have embedded on its website the Facebook ‘Like’ button made available to website operators by Facebook Ireland while fully aware of the fact that it serves as a tool for the collection and disclosure by transmission of the personal data of visitors to that website, regardless of whether or not the visitors are members of the social network Facebook.78Moreover, by embedding that social plugin on its website, Fashion ID exerts a decisive influence over the collection and transmission of the personal data of visitors to that website to the provider of that plugin, Facebook Ireland, which would not have occurred without that plugin.79In these circumstances, and subject to the investigations that it is for the referring court to carry out in this respect, it must be concluded that Facebook Ireland and Fashion ID determine jointly the means at the origin of the operations involving the collection and disclosure by transmission of the personal data of visitors to Fashion ID’s website.80As to the purposes of those operations involving the processing of personal data, it appears that Fashion ID’s embedding of the Facebook ‘Like’ button on its website allows it to optimise the publicity of its goods by making them more visible on the social network Facebook when a visitor to its website clicks on that button. The reason why Fashion ID seems to have consented, at least implicitly, to the collection and disclosure by transmission of the personal data of visitors to its website by embedding such a plugin on that website is in order to benefit from the commercial advantage consisting in increased publicity for its goods; those processing operations are performed in the economic interests of both Fashion ID and Facebook Ireland, for whom the fact that it can use those data for its own commercial purposes is the consideration for the benefit to Fashion ID.81In such circumstances, it can be concluded, subject to the investigations that it is for the referring court to perform, that Fashion ID and Facebook Ireland determine jointly the purposes of the operations involving the collection and disclosure by transmission of the personal data at issue in the main proceedings.82Further, as is apparent from the case-law referred to in paragraph 69 above, the fact that the operator of a website, such as Fashion ID, does not itself have access to the personal data collected and transmitted to the provider of the social plugin with which it determines jointly the means and purposes of the processing of personal data does not preclude it from being a controller within the meaning of Article 2(d) of Directive 95/46.83Moreover, it must be emphasised that a website, such as that of Fashion ID, is visited both by those who are members of the social network Facebook, and who therefore have an account on that social network, and by those who do not have one. In that latter case, the responsibility of the operator of a website, such as Fashion ID, for the processing of the personal data of those persons appears to be even greater, as the mere consultation of such a website featuring the Facebook ‘Like’ button appears to trigger the processing of their personal data by Facebook Ireland (see, to that effect. judgment of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein, C‑210/16, EU:C:2018:388, paragraph 41).84Accordingly, it seems that Fashion ID can be considered to be a controller within the meaning of Article 2(d) of Directive 95/46, jointly with Facebook Ireland, in respect of the operations involving the collection and disclosure by transmission of the personal data of visitors to its website.85In the light of the findings above, the answer to the second question is that the operator of a website, such as Fashion ID, that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider the personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46. That liability is, however, limited to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means, that is to say, the collection and disclosure by transmission of the data at issue. The third question 86In view of the answer given to the second question, there is no need to answer the third question. The fourth question 87By its fourth question, the referring court asks, in essence, whether, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, it is appropriate, for the purposes of the application of Article 7(f) of Directive 95/46, to take into consideration a legitimate interest pursued by that operator or a legitimate interest pursued by that provider.88As a preliminary point, it should be noted that, according to the Commission, this question is irrelevant for the resolution of the dispute in the main proceedings, since consent was not obtained from the data subjects as is required by Article 5(3) of Directive 2002/58.89In that regard, it should be pointed out that Article 5(3) of Directive 2002/58 provides that Member States are to ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is allowed only on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46, inter alia, about the purposes of the processing.90It is for the referring court to investigate whether, in a situation such as that at issue in the main proceedings, the provider of a social plugin, such as Facebook Ireland, gains access, as is maintained by the Commission, from the operator of the website to information stored in the terminal equipment, within the meaning of Article 5(3) of Directive 2002/58, of a visitor to that website.91In such circumstances, and since the referring court seems to have concluded that, in the present case, the data transmitted to Facebook Ireland are personal data, within the meaning of Directive 95/46, which, moreover, are not necessarily limited to information stored in the terminal equipment, which it is for that court to confirm, the Commission’s views are insufficient to call into question the relevance of the fourth question referred for the resolution of the dispute in the main proceedings, which concerns the potentially lawful processing of the data at issue in the main proceedings, as was pointed out by the Advocate General in point 115 of his Opinion.92Consequently, it is necessary to examine what legitimate interest must be taken into account for the purposes of the application of Article 7(f) of that directive to the processing of those data.93In this regard, it should be noted at the outset that, according to the provisions of Chapter II of Directive 95/46, headed ‘General rules on the lawfulness of the processing of personal data’, subject to the derogations permitted under Article 13 of that directive, all processing of personal data must comply, inter alia, with one of the criteria for making data processing legitimate listed in Article 7 of that directive (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 71, and of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 30).94Under Article 7(f) of Directive 95/46, the interpretation of which is sought by the referring court, personal data may be processed if processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection under Article 1(1) of Directive 95/46.95Article 7(f) of that directive thus lays down three cumulative conditions for the processing of personal data to be lawful, namely, first, the pursuit of a legitimate interest by the data controller or by the third party or parties to whom the data are disclosed; second, the need to process personal data for the purposes of the legitimate interests pursued; and third, the condition that the fundamental rights and freedoms of the data subject whose data require protection do not take precedence (judgment of 4 May 2017, Rīgas satiksme, C‑13/16, EU:C:2017:336, paragraph 28).96Given that, in the light of the answer to the second question, it seems that, in a situation such as that at issue in the main proceedings, the operator of a website that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider the personal data of the visitor can be considered to be a controller responsible, jointly with that provider, for operations involving the processing of the personal data of visitors to its website in the form of collection and disclosure by transmission, it is necessary that each of those controllers should pursue a legitimate interest, within the meaning of Article 7(f) of Directive 95/46, through those processing operations in order for those operations to be justified in respect of each of them.97In the light of the findings above, the answer to the fourth question is that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, it is necessary that that operator and that provider each pursue a legitimate interest, within the meaning of Article 7(f) of Directive 95/46, through those processing operations in order for those operations to be justified in respect of each of them. The fifth and sixth questions 98By its fifth and sixth questions, which it is appropriate to examine together, the referring court wishes to know, in essence, first, whether Article 2(h) and Article 7(a) of Directive 95/46 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, the consent referred to in those provisions must be obtained by that operator or by that provider and, second, whether Article 10 of that directive must be interpreted as meaning that, in such a situation, the duty to inform provided for in that provision is incumbent on that operator.99As is apparent from the answer to the second question, the operator of a website that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46, despite that liability being limited to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means.100It thus appears that the duties that may be incumbent on that controller under Directive 95/46, such as the duty to obtain the consent of the data subject under Article 2(h) and Article 7(a) of that directive and the duty to inform under Article 10 thereof, must relate to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means.101In the present case, while the operator of a website that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider the personal data of the visitor can be considered to be a controller, jointly with that provider, in respect of operations involving the collection and disclosure by transmission of the personal data of that visitor, its duty to obtain the consent from the data subject under Article 2(h) and Article 7(a) of Directive 95/46 and its duty to inform under Article 10 of that directive relate only to those operations. By contrast, those duties do not cover operations involving the processing of personal data at other stages occurring before or after those operations which involve, as the case may be, the processing of personal data at issue.102With regard to the consent referred to in Article 2(h) and Article 7(a) of Directive 95/46, it appears that such consent must be given prior to the collection and disclosure by transmission of the data subject’s data. In such circumstances, it is for the operator of the website, rather than for the provider of the social plugin, to obtain that consent, since it is the fact that the visitor consults that website that triggers the processing of the personal data. As the Advocate General noted in point 132 of his Opinion, it would not be in line with efficient and timely protection of the data subject’s rights if the consent were given only to the joint controller that is involved later, namely the provider of that plugin. However, the consent that must be given to the operator relates only to the operation or set of operations involving the processing of personal data in respect of which the operator actually determines the purposes and means.103The same applies in regard to the duty to inform under Article 10 of Directive 95/46.104In that regard, it follows from the wording of that provision that the controller or his representative must provide, as a minimum, the information referred to in that provision to the subject whose data are being collected. It thus appears that that information must be given by the controller immediately, that is to say, when the data are collected (see, to that effect, judgments of 7 May 2009, Rijkeboer, C‑553/07, EU:C:2009:293, paragraph 68, and of 7 November 2013, IPI, C‑473/12, EU:C:2013:715, paragraph 23).105It follows that, in a situation such as that at issue in the main proceedings, the duty to inform under Article 10 of Directive 95/46 is incumbent also on the operator of the website, but the information that the latter must provide to the data subject need relate only to the operation or set of operations involving the processing of personal data in respect of which that operator actually determines the purposes and means.106In the light of the findings above, the answer to the fifth and sixth questions is that Article 2(h) and Article 7(a) of Directive 95/46 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, the consent referred to in those provisions must be obtained by that operator only with regard to the operation or set of operations involving the processing of personal data in respect of which that operator determines the purposes and means. In addition, Article 10 of that directive must be interpreted as meaning that, in such a situation, the duty to inform laid down in that provision is incumbent also on that operator, but the information that the latter must provide to the data subject need relate only to the operation or set of operations involving the processing of personal data in respect of which that operator actually determines the purposes and means. Costs 107Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: 1. Articles 22 to 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not precluding national legislation which allows consumer-protection associations to bring or defend legal proceedings against a person allegedly responsible for an infringement of the protection of personal data. 2. The operator of a website, such as Fashion ID GmbH & Co. KG, that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46. That liability is, however, limited to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means, that is to say, the collection and disclosure by transmission of the data at issue. 3. In a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, it is necessary that that operator and that provider each pursue a legitimate interest, within the meaning of Article 7(f) of Directive 95/46, through those processing operations in order for those operations to be justified in respect of each of them. 4. Article 2(h) and Article 7(a) of Directive 95/46 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, the consent referred to in those provisions must be obtained by that operator only with regard to the operation or set of operations involving the processing of personal data in respect of which that operator determines the purposes and means. In addition, Article 10 of that directive must be interpreted as meaning that, in such a situation, the duty to inform laid down in that provision is incumbent also on that operator, but the information that the latter must provide to the data subject need relate only to the operation or set of operations involving the processing of personal data in respect of which that operator actually determines the purposes and means. [Signatures]( *1 ) Language of the case: German. | c2e9a-406cb9d-4b24 | EN |
Sampling without authorisation can infringe a phonogram producer’s rights | 29 July 2019 ( *1 )(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information Society — Harmonisation of certain aspects of copyright and related rights — Sampling — Article 2(c) — Phonogram producer — Reproduction right — Reproduction ‘in part’ — Article 5(2) and (3) — Exceptions and limitations — Scope — Article 5(3)(d) — Quotations — Directive 2006/115/EC — Article 9(1)(b) — Distribution right — Fundamental rights — Charter of Fundamental Rights of the European Union — Article 13 — Freedom of the arts)In Case C‑476/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), by decision of 1 June 2017, received at the Court on 4 August 2017, in the proceedings Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider‑Esleben, THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Arabadjiev, M. Vilaras, T. von Danwitz, C. Toader, F. Biltgen and C. Lycourgos, Presidents of Chambers, E. Juhász, M. Ilešič (Rapporteur), L. Bay Larsen and S. Rodin, Judges,Advocate General: M. Szpunar,Registrar: R. Şereş, Administrator,having regard to the written procedure and further to the hearing on 3 July 2018,after considering the observations submitted on behalf of:–Pelham GmbH, Mr Pelham and Mr Haas, by A. Walter, Rechtsanwalt,Mr Hütter and Mr Schneider‑Esleben, by U. Hundt‑Neumann and H. Lindhorst, Rechtsanwälte,the German Government, by T. Henze, M. Hellmann and J. Techert, acting as Agents,the French Government, by D. Colas, D. Segoin and E. Armoët, acting as Agents,the United Kingdom Government, by Z. Lavery and D. Robertson, acting as Agents, and by N. Saunders, Barrister,the European Commission, by T. Scharf and J. Samnadda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 December 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 2(c) and Article 5(3)(d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), and of Article 9(1)(b) and of the first paragraph of Article 10(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).2The request has been made in proceedings between Pelham GmbH, Mr M. Pelham and Mr M. Haas (‘Pelham’), on the one hand, and Mr R. Hütter and Mr F. Schneider‑Esleben (‘Hütter and another’), on the other, concerning the use, in the recording of the song ‘Nur mir’, composed by Mr Pelham and Mr Haas and produced by Pelham GmbH, of an approximately 2-second rhythm sequence from a phonogram of the group Kraftwerk, of which Hütter and another are members. Legal context International law 3Article 1 of the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms, signed in Geneva on 29 October 1971 (‘the Geneva Convention’), reads as follows:‘For the purposes of this Convention:(a)“phonogram” means any exclusively aural fixation of sounds of a performance or of other sounds;(b)“producer of phonograms” means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds;(c)“duplicate” means an article which contains sounds taken directly or indirectly from a phonogram and which embodies all or a substantial part of the sounds fixed in that phonogram;(d)“distribution to the public” means any act by which duplicates of a phonogram are offered, directly or indirectly, to the general public or any section thereof.’4Article 2 of the Geneva Convention provides:‘Each Contracting State shall protect producers of phonograms who are nationals of other Contracting States against the making of duplicates without the consent of the producer and against the importation of such duplicates, provided that any such making or importation is for the purpose of distribution to the public, and against the distribution of such duplicates to the public.’ European Union law Directive 2001/29 5Recitals 3, 4, 6, 7, 9, 10, 31 and 32 of Directive 2001/29 state:‘(3)The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.(4)A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation.…(6)Without harmonisation at [EU] level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the internal market and legislative inconsistency. The impact of such legislative differences and uncertainties will become more significant with the further development of the information society, which has already greatly increased transborder exploitation of intellectual property. This development will and should further increase. Significant legal differences and uncertainties in protection may hinder economies of scale for new products and services containing copyright and related rights.(7)The [EU] legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. To that end, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal uncertainties hindering the smooth functioning of the internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological developments should be avoided, whilst differences not adversely affecting the functioning of the internal market need not be removed or prevented.(9)Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. …(10)If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.(31)A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. … In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.(32)This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public. Some exceptions or limitations only apply to the reproduction right, where appropriate. This list takes due account of the different legal traditions in Member States, while, at the same time, aiming to ensure a functioning internal market. Member States should arrive at a coherent application of these exceptions and limitations, which will be assessed when reviewing implementing legislation in the future.’6Under the heading ‘Reproduction right’, Article 2 of Directive 2001/29 provides:‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:for phonogram producers, of their phonograms;…’7Article 5 of Directive 2001/29 sets out the exceptions and limitations to the rights referred to in Articles 2 to 4 thereof. Article 5(3) and (5) provides:‘3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ Directive 2006/115 8Recitals 2, 5 and 7 of Directive 2006/115 state:‘(2)Rental and lending of copyright works and the subject matter of related rights protection is playing an increasingly important role in particular for authors, performers and producers of phonograms and films. Piracy is becoming an increasing threat.(5)The creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky. The possibility of securing that income and recouping that investment can be effectively guaranteed only through adequate legal protection of the rightholders concerned.The legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which the copyright and related rights laws of many Member States are based.’9Under the heading ‘Object of harmonisation’, Article 1(1) of that directive provides:‘In accordance with the provisions of this Chapter, Member States shall provide, subject to Article 6, a right to authorise or prohibit the rental and lending of originals and copies of copyright works, and other subject matter as set out in Article 3(1).’10Under the heading ‘Distribution right’, Article 9(1) of the directive provides:‘Member States shall provide the exclusive right to make available to the public, by sale or otherwise, the objects indicated in points (a) to (d), including copies thereof, hereinafter “the distribution right”:for phonogram producers, in respect of their phonograms;11The first paragraph of Article 10(2) of Directive 2006/115 reads as follows:‘… any Member State may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and of producers of the first fixations of films, as it provides for in connection with the protection of copyright in literary and artistic works.’ German law 12Paragraph 24 of the Gesetz über Urheberrecht und verwandte Schutzrechte — Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273; ‘the UrhG’) provides:‘1. An independent work created in the free use of the work of another person may be published and exploited without the consent of the author of the work used.2. Subparagraph 1 shall not apply to the use of a musical work in which a melody is recognisably taken from the work and used as the basis for a new work.’13Paragraph 85(1) of the UrhG, which transposes Article 2(c) of Directive 2001/29 and Article 9 of Directive 2006/115, provides, in its first sentence, first and second cases, that the producer of a phonogram has the exclusive right to reproduce and distribute the phonogram. The case in the main proceedings and the questions referred for a preliminary ruling 14Hütter and another are members of the group Kraftwerk. In 1977, that group published a phonogram featuring the song ‘Metall auf Metall’.15Mr Pelham and Mr Haas composed the song ‘Nur mir’, which was released on phonograms recorded by Pelham GmbH in 1997.16Hütter and another submit that Pelham electronically copied (‘sampled’) approximately 2 seconds of a rhythm sequence from the song ‘Metall auf Metall’ and used that sample in a continuous loop in the song ‘Nur mir’, although it would have been possible for them to play the adopted rhythm sequence themselves.17As the phonogram producers, Hütter and another’s principal claim is that Pelham infringed their copyright-related right. In the alternative, they claim that their intellectual property right as performers and Mr Hütter’s copyright in the musical work were infringed. In the further alternative, they claim that Pelham infringed competition law.18Hütter and another brought an action before the Landgericht Hamburg (Regional Court, Hamburg, Germany) seeking a prohibitory injunction, damages, the provision of information and the surrender of the phonograms for the purposes of their destruction.19That court upheld the action, and Pelham’s appeal before the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) was dismissed. Following an appeal on a point of law (Revision) brought by Pelham before the Bundesgerichtshof (Federal Court of Justice, Germany), the judgment of the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) was overturned and the case was referred back to that court for re-examination. That court dismissed Pelham’s appeal a second time. In a judgment of 13 December 2012, the Bundesgerichtshof (Federal Court of Justice) once again dismissed Pelham’s appeal on a point of law. That judgment was overturned by the Bundesverfassungsgericht (Federal Constitutional Court, Germany), which referred the case back to the referring court.20The referring court notes that the outcome of the Revision proceedings turns on the interpretation of Article 2(c) and Article 5(3)(d) of Directive 2001/29 and of Article 9(1)(b) and Article 10(2) of Directive 2006/115.21According to the referring court, it must, in the first place, be determined whether, by using Hütter and another’s sound recording in the production of its own phonogram, Pelham encroached on the exclusive right of Hütter and another to reproduce and distribute the phonogram featuring the song ‘Metall auf Metall’, as laid down in Paragraph 85(1) of the UrhG, which transposes Article 2(c) of Directive 2001/29 and Article 9 of Directive 2006/115. In particular, it must be determined whether such an infringement can be found where, as in the present case, 2 seconds of a rhythm sequence are taken from a phonogram then transferred to another phonogram, and whether that amounts to a copy of another phonogram within the meaning of Article 9(1)(b) of Directive 2006/115.22In the second place, if it is found that there has been an infringement of the phonogram producer’s right, the question arises of whether Pelham may rely on the ‘right to free use’, laid down in Paragraph 24(1) of the UrhG, which is applicable by analogy to the phonogram producer’s right, according to which an independent work created in the free use of the work of another person may be published or exploited without the consent of the author of the work used. The referring court notes, in that context, that that provision has no express equivalent in EU law and therefore asks whether that right is consistent with EU law in the light of the fact that that provision limits the scope of protection of the phonogram producer’s exclusive right to reproduce and distribute his or her phonogram.23In the third place, the national law exceptions and limitations to the reproduction right referred to in Article 2(c) of Directive 2001/29 and to the distribution right referred to in Article 9(1)(b) of Directive 2006/115 are based on Article 5(3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115. However, the referring court harbours doubts as to the interpretation of those provisions in circumstances such as those at issue in the main proceedings.24In the fourth place, the referring court notes that EU law must be interpreted and applied in the light of the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’). In that context, it asks whether the Member States have any discretion for the purposes of the transposition into national law of Article 2(c) and Article 5(2) and (3) of Directive 2001/29 and of Article 9(1)(b) and the first paragraph of Article 10(2) of Directive 2006/115. The referring court notes that, according to case-law of the Bundesverfassungsgericht (Federal Constitutional Court), national legislation which transposes an EU directive must be measured, as a rule, not against the fundamental rights guaranteed by the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) of 23 May 1949 (BGBl. 1949 I, p. 1), but solely against the fundamental rights guaranteed by EU law, where that directive does not allow the Member States any discretion in its transposition. That court also harbours doubts as to the interpretation of those fundamental rights in circumstances such as those at issue in the main proceedings.25In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29 to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram?(2)Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive 2006/115?(3)Can the Member States enact a provision which — in the manner of Paragraph 24(1) of [the UrhG] — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent?Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive 2001/29 if it is not evident that another person’s work or another person’s subject matter is being used?Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29 and Article 9(1)(b) of Directive 2006/115) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115) allow any latitude in terms of implementation in national law?In what way are the fundamental rights set out in [the Charter] to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115)?’ Consideration of the questions referred The first and sixth questions 26By its first and sixth questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 2(c) of Directive 2001/29 must, in the light of the Charter, be interpreted as meaning that the exclusive right granted to a phonogram producer to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram.27Under Article 2(c) of Directive 2001/29, Member States are to provide for the exclusive right of phonogram producers ‘to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part’ of their phonograms.28Directive 2001/29 does not define the concept of ‘reproduction … in whole or in part’ of a phonogram for the purposes of that provision. The meaning and scope of those words must, as the Court has consistently held, be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case-law cited).29It is clear from the wording of Article 2(c) of Directive 2001/29 stated in paragraph 27 above, that the reproduction by a user of a sound sample, even if very short, of a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram within the meaning of the provision, and that such a reproduction therefore falls within the exclusive right granted to the producer of such a phonogram under that provision.30That literal interpretation of Article 2(c) of Directive 2001/29 is consistent, first, with the general objective of that directive which is, as follows from recitals 4, 9 and 10, to establish a high level of protection of copyright and related rights, and, second, the specific objective of the exclusive right of the phonogram producer, referred to in recital 10, which is to protect a phonogram producer’s investment. As stated in that recital, the investment required to produce products such as phonograms, is considerable to such an extent that it is necessary in order to guarantee phonogram producers the opportunity of satisfactory returns.31However, where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to use it, in a modified form unrecognisable to the ear, in a new work, it must be held that such use does not constitute ‘reproduction’ within the meaning of Article 2(c) of Directive 2001/29.32It must be borne in mind, in that regard, that it follows from recitals 3 and 31 of Directive 2001/29 that the harmonisation effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights now guaranteed by Article 17(2) of the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter as well as of the public interest (see, to that effect, judgment of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 41).33The Court has thus previously held that there is nothing whatsoever in the wording of Article 17(2) of the Charter or in the Court’s case-law to suggest that the intellectual property rights enshrined in that article are inviolable and must for that reason be protected as absolute rights (judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 43; of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraph 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 61).34A balance must be struck between that right and other fundamental rights, including freedom of the arts, enshrined in Article 13 of the Charter, which, in so far as it falls within the scope of freedom of expression, enshrined in Article 11 of the Charter and in Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds (see, to that effect, ECtHR, 24 May 1988, Müller and Others v. Switzerland, CE:ECHR:1988:0524JUD001073784, § 27, and ECtHR, 8 July 1999, Karataş v. Turkey, CE:ECHR:1999:0708JUD002316894, § 49).35In that context, it should be noted that the technique of ‘sampling’, which consists in a user taking a sample from a phonogram, most often by means of electronic equipment, and using the sample for the purposes of creating a new work, constitutes a form of artistic expression which is covered by freedom of the arts, as protected in Article 13 of the Charter.36In exercising that freedom, the user of a sound sample, when creating a new work, may decide to modify the sample taken from a phonogram to such a degree that that sample is unrecognisable to the ear in that new work.37Thus, to regard a sample taken from a phonogram and used in a new work in a modified form unrecognisable to the ear for the purposes of a distinct artistic creation, as constituting ‘reproduction’ of that phonogram within the meaning of Article 2(c) of Directive 2001/29 would not only run counter to the usual meaning of that word in everyday language, within the meaning of the case-law set out in paragraph 28 above, but would also fail to meet the requirement of a fair balance set out in paragraph 32 above.38In particular, such an interpretation would allow the phonogram producer to prevent another person from taking a sound sample, even if very short, from his or her phonogram for the purposes of artistic creation in such a case, despite the fact that such sampling would not interfere with the opportunity which the producer has of realising satisfactory returns on his or her investment.39In the light of the foregoing considerations, the answer to the first and sixth questions is that Article 2(c) of Directive 2001/29 must, in the light of the Charter, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him or her to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. The second question 40By its second question, the referring court asks, in essence, whether Article 9(1)(b) of Directive 2006/115 must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram constitutes a ‘copy’, within the meaning of that provision, of that phonogram.41Under Article 9(1)(b) of Directive 2006/115, Member States are to provide phonogram producers with the exclusive right to make available to the public, by sale or otherwise, their phonograms, including copies thereof.42Neither Article 9 of Directive 2006/115 nor any other provision of that directive defines the concept of ‘copy’ within the meaning of that article.43That concept must therefore be interpreted by taking into account the legislative context of the provision in question and the purposes of the relevant legislation.44It must be borne in mind that the phonogram producer’s exclusive distribution right provided for in Article 9(1)(b) of Directive 2006/115 is intended to afford a producer, through adequate legal protection of intellectual property rightholders, with the possibility of recouping investments made by him or her in order to produce phonograms, since those investments can prove to be especially high and risky, as stated in recitals 2 and 5 of Directive 2006/115.45In that regard, it is clear from recital 2 of Directive 2006/115 that the protection conferred on a phonogram producer under that directive aims, in particular, to fight piracy, that is, as the Advocate General stated in point 45 of his Opinion, the production and distribution to the public of counterfeit copies of phonograms. The distribution of such copies poses a particularly serious threat to the interests of such phonogram producers in that it is capable of significantly decreasing the revenue that they receive by making phonograms available.46As the Advocate General stated in point 46 of his Opinion, only an article which reproduces all or a substantial part of the sounds fixed in a phonogram is, by its nature, intended to replace lawful copies of that phonogram and, therefore, capable of constituting a copy of that phonogram within the meaning of Article 9(1) of Directive 2006/115.47That is not, by contrast, the case of an article which, without reproducing all or a substantial part of the sounds fixed in a phonogram, merely embodies sound samples, where relevant in a modified form, transferred from that phonogram for the purposes of creating a new and distinct work from that phonogram.48That interpretation of Article 9(1)(b) of Directive 2006/115 in the light of its purposes is supported by the legislative context of which that provision is part.49In that regard, as stated in recital 7 of Directive 2006/115, that directive aims to approximate the legislation of the Member States in such a way as not to conflict with the international conventions on which the copyright and related rights laws of many Member States are based.50The Geneva Convention is one of those conventions, which, according to its preamble, has, inter alia, the aim of addressing the widespread and increasing unauthorised duplication of phonograms and the damage that this is occasioning to the interests of producers.51Article 2 of that convention contains an analogous provision to Article 9(1)(b) of Directive 2006/115 which specifically provides that the producers of phonograms are to be protected against the making and distribution to the public of ‘duplicates’ of their phonograms without their consent.52According to Article 1(c) of the Geneva Convention, a ‘duplicate’ means an article which contains sounds taken directly or indirectly from a phonogram and which embodies ‘all or a substantial part’ of the sounds fixed in that phonogram.53It is true that the provisions of the Geneva Convention do not form part of the EU legal order, in that, first, the European Union is not a contracting party to that convention and, second, the European Union cannot be regarded as having taken the place of its Member States as regards its application, if only because not all of those States are parties to that convention (see, by analogy, judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 41). The fact remains, however, that it is one of the international conventions referred to in paragraph 49 above and therefore the provisions of Directive 2006/115 must be interpreted, so far as possible, in the light of that convention (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 35; of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 189; and of 19 December 2018, Syed, C‑572/17, EU:C:2018:1033, paragraph 20).54It follows that it should be considered, as did the Advocate General in points 46 and 47 of his Opinion, that the concept of ‘copy’ within the meaning of Article 9(1)(b) of Directive 2006/115 must be interpreted consistently with the same concept as it is used in Article 1(c) and Article 2 of the Geneva Convention.55In the light of the foregoing considerations, the answer to the second question is that Article 9(1)(b) of Directive 2006/115 must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram. The third question 56The referring court notes that, according to Paragraph 24(1) of the UrhG, applicable by analogy to a phonogram producer’s right, an independent work created using the work of another person may be used and exploited without the consent of the author of the work used. It states that such a ‘right to free use’ does not constitute a derogation from copyright as such but rather sets out an inherent limitation to its scope of protection, based on the idea that it is not possible to conceive of a cultural creation without that creation building upon the previous work of other authors.57In those circumstances, since it is clear from the answer to the second question that a reproduction such as that at issue in the main proceedings does not fall within the scope of Article 9(1)(b) of Directive 2006/115, it must be held that, by its third question, the referring court asks, in essence, whether a Member State may, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of Directive 2001/29.58As is clear both from the Explanatory Memorandum to the Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society of 10 December 1997 (COM(97) 628 final) and from recital 32 of Directive 2001/29, the list of exceptions and limitations contained in Article 5 of that directive is exhaustive, as the Court has also pointed out on several occasions (judgments of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 34, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 16).59In that regard, it has been recalled, in paragraph 32 above, that the harmonisation effected by Directive 2001/29 aims to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter as well as of the public interest.60The mechanisms allowing those different rights and interests to be balanced are contained in Directive 2001/29 itself, in that it provides inter alia, first, in Articles 2 to 4 thereof, rightholders with exclusive rights and, second, in Article 5 thereof, for exceptions and limitations to those rights which may, or even must, be transposed by the Member States, since those mechanisms must nevertheless find concrete expression in the national measures transposing that directive and in their application by national authorities (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 66 and the case-law cited).61The Court has repeatedly held that the fundamental rights now enshrined in the Charter, the observance of which the Court ensures, draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, to that effect, judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 35 and the case-law cited).62Article 5(5) of Directive 2001/29 also contributes to the fair balance mentioned in paragraph 32 above, in that it requires that the exceptions and limitations provided for in Article 5(1) to (4) of the directive be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.63In that context, to allow, notwithstanding the express intention of the EU legislature, set out in paragraph 58 above, each Member State to derogate from an author’s exclusive rights, referred to in Articles 2 to 4 of Directive 2001/29, beyond the exceptions and limitations exhaustively set out in Article 5 of that directive, would endanger the effectiveness of the harmonisation of copyright and related rights effected by that directive, as well as the objective of legal certainty pursued by it (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 34 and 35). It is expressly clear from recital 31 of that directive that the differences that existed in the exceptions and limitations to certain restricted acts had direct negative effects on the functioning of the internal market of copyright and related rights, since the list of the exceptions and limitations set out in Article 5 of Directive 2001/29 is aimed at ensuring such proper functioning of the internal market.64In addition, as is clear from recital 32 of that directive, the Member States are required to apply those exceptions and limitations consistently. The requirement of consistency in the implementation of those exceptions and limitations could not be ensured if the Member States were free to provide for such exceptions and limitations beyond those expressly set out in Directive 2001/29 (see, to that effect, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 38 and 39), since the Court has moreover previously held that no provision of Directive 2001/29 envisages the possibility for the scope of such exceptions or limitations to be extended by the Member States (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 27).65In the light of the foregoing considerations, the answer to the third question is that a Member State cannot, in its national law, lay down an exception or limitation other than those provided for in Article 5 of Directive 2001/29 to the phonogram producer’s right provided for in Article 2(c) of that directive. The fourth question 66By its fourth question, which concerns a situation in which it is found that there has been an infringement of the phonogram producer’s exclusive right provided for in Article 2(c) of Directive 2001/29, the referring court asks, in essence, whether Article 5(3)(d) of that directive must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, extends to a situation in which it is not possible to identify the work concerned by the quotation in question.67Under Article 5(3)(d) of Directive 2001/29, Member States may provide for exceptions or limitations to the exclusive rights of reproduction and of communication to the public referred to in Articles 2 and 3 of that directive in the case of quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.68First of all, it must be considered, as did the Advocate General in points 62 and 63 of his Opinion, that, in the light of the wording in Article 5(3)(d) of Directive 2001/29 which refers to ‘a work or other subject-matter’, the exception or limitation provided for in that article may apply to the use of a protected musical work, provided that the conditions provided for in that article are satisfied.69In particular, for Article 5(3)(d) of Directive 2001/29 to apply, as has been stated in paragraph 67 above, the use in question must be made ‘in accordance with fair practice, and to the extent required by the specific purpose’, so that the use at issue for the purposes of quotation must not be extended beyond the confines of what it necessary to achieve the informatory purpose of that particular quotation.70Since Directive 2001/29 gives no definition of the term ‘quotation’, the meaning and scope of that term must, according to the Court’s settled case-law set out in paragraph 28 above, be determined by considering its usual meaning in everyday language, while also taking into account the legislative context in which it occurs and the purposes of the rules of which it is part.71As regards the usual meaning of the word ‘quotation’ in everyday language, it should be noted that the essential characteristics of a quotation are the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user, since the user of a protected work wishing to rely on the quotation exception must therefore have the intention of entering into ‘dialogue’ with that work, as the Advocate General stated in point 64 of his Opinion.72In particular, where the creator of a new musical work uses a sound sample taken from a phonogram which is recognisable to the ear in that new work, the use of that sample may, depending on the facts of the case, amount to a ‘quotation’, on the basis of Article 5(3)(d) of Directive 2001/29 read in the light of Article 13 of the Charter, provided that that use has the intention of entering into dialogue with the work from which the sample was taken, within the meaning referred to in paragraph 71 above, and that the conditions set out in Article 5(3)(d) are satisfied.73However, as the Advocate General stated in point 65 of his Opinion, there can be no such dialogue where it is not possible to identify the work concerned by the quotation at issue.74In the light of the foregoing considerations, the answer to the fourth question is that Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question. The fifth question 75As a preliminary matter, it should be noted, as is clear from paragraph 24 above, that the fifth question relates, in particular, to the application by the referring court, for the purposes of disposing of the case in the main proceedings, of Article 2(c) and Article 5(3)(d) of Directive 2001/29, and of Article 9(1)(b) and the first paragraph of Article 10(2) of Directive 2006/115.76In that context, the referring court asks whether those provisions of EU law allow the Member States discretion in their transposition, since, according to the case-law of the Bundesverfassungsgericht (Federal Constitutional Court), national legislation which transposes an EU directive must be measured, as a rule, not against the fundamental rights guaranteed by the Basic Law for the Federal Republic of Germany, but solely against the fundamental rights guaranteed by EU law, where that directive does not allow the Member States any discretion in its transposition.77As regards the answer to the second and fourth questions, it must be held that, by its fifth question, the referring court asks, in essence, whether Article 2(c) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation.78In that regard, it should be stated that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of that State (judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 59).79It should be noted in that connection that, since the transposition of a directive by the Member States is covered, in any event, by the situation, referred to in Article 51 of the Charter, in which the Member States are implementing Union law, the level of protection of fundamental rights provided for in the Charter must be achieved in such a transposition, irrespective of the Member States’ discretion in transposing the directive.80That said, where, in a situation in which action of the Member States is not entirely determined by EU law, a national provision or measure implements EU law for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60, and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29).81Thus, it is consistent with EU law for national courts and authorities to make that application subject to the condition, emphasised by the referring court, that the provisions of a directive ‘allow [some] discretion in terms of implementation in national law’, provided that that condition is understood as referring to the degree of the harmonisation effected in those provisions, since such an application is conceivable only in so far as those provisions do not effect full harmonisation.82In the present case, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright and related rights, of which a number of provisions also disclose the intention of the EU legislature to grant a degree of discretion to the Member States in the implementation of the directive (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 57).83As regards the exclusive right of holders, referred to in Article 2(c) of Directive 2001/29, it has been stated, in paragraph 27 above, that, according to that provision, Member States are to provide for the exclusive right of phonogram producers ‘to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part’ of their phonograms.84That provision therefore defines a phonogram producer’s exclusive right of reproduction in the European Union in unequivocal terms. Furthermore, that provision is not qualified by any condition, nor is it subject, in its implementation or effects, to any measure being taken in any particular form.85It follows that Article 2(c) of Directive 2001/29 constitutes a measure of full harmonisation of the corresponding substantive law (see, by analogy, as regards the exclusive right of an EU trade mark proprietor, judgments of 20 November 2001, Zino Davidoff and Levi Strauss, C‑414/99 to C‑416/99, EU:C:2001:617, paragraph 39, and of 12 November 2002, Arsenal Football Club, C‑206/01, EU:C:2002:651, paragraph 43).86In the light of the foregoing considerations, the answer to the fifth question is that Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law. Costs 87Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. 2. Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram. 3. A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of that directive. 4. Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question. 5. Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law. [Signatures]( *1 ) Language of the case: German. | 6ac1f-f6ccba3-4324 | EN |
Freedom of information and the freedom of the press cannot justify a derogation from the rights of copyright holders beyond the exceptions and limitations set out in the Copyright Directive | 29 July 2019 ( *1 )(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information Society — Harmonisation of certain aspects of copyright and related rights — Article 2(a) — Reproduction right — Article 3(1) — Communication to the public — Article 5(2) and (3) — Exceptions and limitations — Scope — Charter of Fundamental Rights of the European Union)In Case C‑469/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 1 June 2017, received at the Court on 4 August 2017, in the proceedings Funke Medien NRW GmbH v Bundesrepublik Deutschland, THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Arabadjiev, M. Vilaras, T. von Danwitz, C. Toader, F. Biltgen and C. Lycourgos, Presidents of Chambers, E. Juhász, M. Ilešič (Rapporteur), L. Bay Larsen and S. Rodin, Judges,Advocate General: M. Szpunar,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 3 July 2018,after considering the observations submitted on behalf of:–Funke Medien NRW GmbH, by T. von Plehwe, Rechtsanwalt,the German Government, by T. Henze, M. Hellmann, E. Lankenau and J. Techert, acting as Agents,the French Government, by E. Armoët, D. Colas and D. Segoin, acting as Agents,the United Kingdom Government, by Z. Lavery and D. Robertson, acting as Agents, and by N. Saunders, Barrister,the European Commission, by H. Krämer, T. Scharf and J. Samnadda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 25 October 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 2(a), Article 3(1) and Article 5(2) and (3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).2The request has been made in proceedings between Funke Medien NRW GmbH (‘Funke Medien’), which operates the website of the German daily newspaper Westdeutsche Allgemeine Zeitung, and the Bundesrepublik Deutschland (Federal Republic of Germany) concerning the publication by Funke Medien of certain documents ‘classified for restricted access’ drawn up by the German Government. Legal context European Union law 3Recitals 1, 3, 6, 7, 9, 31 and 32 of Directive 2001/29 state:‘(1)The [EC] Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.…(3)The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.(6)Without harmonisation at [EU] level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the internal market and legislative inconsistency. The impact of such legislative differences and uncertainties will become more significant with the further development of the information society, which has already greatly increased transborder exploitation of intellectual property. …(7)The [EU] legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. … [D]ifferences not adversely affecting the functioning of the internal market need not be removed or prevented.(9)Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.(31)A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. … In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.(32)This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public. … Member States should arrive at a coherent application of these exceptions and limitations …’4Under the heading ‘Reproduction right’, Article 2 of Directive 2001/29 reads as follows:‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:(a)for authors, of their works;…’5Article 3 of the directive, under the heading ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides, in paragraph 1:‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’6Article 5 of the directive, under the heading ‘Exceptions and limitations’, provides, in paragraph 3(c) and (d), and in paragraph 5:‘3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:(c)reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;(d)quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ German law 7Under the heading ‘Reporting on current events’, Paragraph 50 of the Gesetz über Urheberrecht und verwandte Schutzrechte — Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273; ‘the UrhG’) provides:‘For the purposes of reporting on current events by broadcasting or similar technical means in newspapers, periodicals and other printed matter or other data carriers mainly devoted to current events, as well as on film, the reproduction, distribution and communication to the public of works which become perceivable in the course of these events shall be permitted to the extent justified by the purpose of the report.’8Under the heading ‘Quotations’, Paragraph 51 of the UrhG reads as follows:‘It shall be permissible to reproduce, distribute and communicate to the public a published work for the purpose of quotation so far as such use is justified to that extent by the particular purpose. This shall be permissible in particular where:1.subsequent to publication, individual works are included in an independent scientific work for the purpose of explaining the contents;2.subsequent to publication, passages from a work are quoted in an independent work;3.individual passages from a released musical work are quoted in an independent musical work.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 9The Federal Republic of Germany prepares a military status report every week on the deployments of the Bundeswehr (Federal armed forces, Germany) abroad and on developments at the deployment locations. The reports are referred to as ‘Unterrichtung des Parlaments’ (‘Parliament briefings’; ‘UdPs’), and are sent to selected members of the Bundestag (Federal Parliament, Germany), to sections of the Bundesministerium der Verteidigung (Federal Ministry of Defence, Germany) and other federal ministries, and to certain bodies subordinate to the Federal Ministry of Defence. UdPs are categorised as ‘Classified Documents — Restricted’, which is the lowest of the four levels of confidentiality laid down under German law. At the same time, the Federal Republic of Germany publishes summaries of UdPs known as ‘Unterrichtung der Öffentlichkeit’ (‘public briefings’), which are available to the public without any restrictions.10Funke Medien operates the website of the German daily newspaper Westdeutsche Allgemeine Zeitung. On 27 September 2012, it applied for access to all UdPs drawn up between 1 September 2001 and 26 September 2012. That application was refused by the competent authorities on the ground that disclosure of the information in those UdPs could have adverse effects on security-sensitive interests of the Federal armed forces. In that context, the competent authorities referred to the regularly published public briefings, which are versions of UdPs that do not affect those interests. Funke Medien nevertheless obtained, by unknown means, a large proportion of the UdPs, which it published in part as the ‘Afghanistan Papiere’ (‘the Afghanistan papers’) and could be read online as individually scanned pages accompanied by an introductory note, further links and a space for comments.11The Federal Republic of Germany, which takes the view that Funke Medien thereby infringed its copyright over the UdPs, brought an action for an injunction against Funke Medien, which was upheld by the Landgericht Köln (Regional Court, Cologne, Germany). The appeal brought by Funke Medien was dismissed by the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany). In its appeal on a point of law (Revision), brought before the referring court, Funke Medien maintained its contention that the action for an injunction should be dismissed.12The referring court notes that the reasoning of the Oberlandesgericht Köln (Higher Regional Court, Cologne) is based on the premiss that UdPs may be protected under copyright as ‘literary works’ and that they are not official texts excluded from the protection emanating from that right. It nevertheless states that that court has not made any finding of fact from which it can be concluded that UdPs are original creations.13However, the referring court considers that it is not possible to dismiss the judgment of the Oberlandesgericht Köln (Higher Regional Court, Cologne) and to remit the case to that court to allow it to make findings to that effect a posteriori, if copyright infringement of UdPs, which must be presumed for the purposes of an appeal on a point of law (Revision), is, in any event, covered by the derogation relating to reporting current events or quotations, laid down in Paragraphs 50 and 51 of the UrhG, or if such an infringement is justified by freedom of information or the freedom of the press, laid down respectively in the first and second sentences of Article 5(1) of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) of 23 May 1949 (BGBl. 1949 I, p. 1; ‘the GG’) and in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the referring court, if that is the case, then judgment could be given in the case to the effect that the referring court would be required to amend the judgment of the Landgericht Köln (Regional Court, Cologne) and dismiss the action for an injunction which the Federal Republic of Germany brought before it.14The referring court considers, in that regard, that the interpretation of Article 2(a), Article 3(1) and Article 5(3)(c) and (d) of Directive 2001/29 read in the light of fundamental rights, in particular of freedom of information and of freedom of the press, is not obvious. It asks inter alia whether those provisions allow any discretion for the purposes of their transposition into national law. It notes in that regard that, according to the case-law of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), national legislation which transposes an EU directive must be measured, as a rule, not against the fundamental rights guaranteed by the GG, but solely against the fundamental rights guaranteed by EU law, where that directive does not allow the Member States any discretion in its transposition.15In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:Do the provisions of Union law on the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), and the exceptions or limitations to these rights (Article 5(2) and (3) of Directive 2001/29) allow any latitude in terms of implementation in national law?(2)In which way are the fundamental rights of the [Charter] to be taken into account when ascertaining the scope of the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29)?Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the media (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29?’ Consideration of the questions referred Preliminary observations 16The referring court notes that, in dismissing Funke Medien’s appeal, the Oberlandesgericht Köln (Higher Regional Court, Cologne) relied on the premiss that UdPs can be protected under copyright as ‘literary works’, but has not made any finding of fact from which it can be concluded that UdPs are original creations.17In that regard, the Court considers it appropriate to make the following clarifications.18Article 2(a) and Article 3(1) of Directive 2001/29 provide that the Member States are to provide authors with the exclusive right to authorise or prohibit direct or indirect reproduction by any means and in any form of their ‘works’ and with the exclusive right to authorise or prohibit any communication to the public of those ‘works’. Thus, subject matter can be protected by copyright under Directive 2001/29 only if such subject matter can be classified as a ‘work’ within the meaning of those provisions (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 34).19As is clear from well-established case-law, in order for subject matter to be regarded as a ‘work’, two conditions must be satisfied cumulatively. First, the subject matter must be original in the sense that it is its author’s own intellectual creation. In order for an intellectual creation to be regarded as an author’s own it must reflect the author’s personality, which is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 87 to 89).20Second, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29 (judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 37 and the case-law cited).21In the present case, Funke Medien has contended that UdPs cannot be protected under copyright, since they are reports the structure of which consists of a standard form, drawn up by different authors, of a purely factual nature. As far as concerns the German Government, it claims that the very creation of such a standard form may be protected under copyright.22It is for the national court to determine whether military status reports, such as those at issue in the main proceedings, or certain elements thereof, may be regarded as ‘works’ within the meaning of Article 2(a) and of Article 3(1) of Directive 2001/29 and therefore be protected by copyright (see, to that effect, judgment of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 48).23In order to determine whether that is in fact the case, it is for the national court to ascertain whether, in drawing up those reports, the author was able to make free and creative choices capable of conveying to the reader the originality of the subject matter at issue, the originality of which arises from the choice, sequence and combination of the words by which the author expressed his or her creativity in an original manner and achieved a result which is an intellectual creation (see, to that effect, judgment of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 45 to 47), whereas the mere intellectual effort and skill of creating those reports are not relevant in that regard (see, by analogy, judgment of 1 March 2012, Football Dataco and Others, C‑604/10, EU:C:2012:115, paragraph 33).24If military status reports, such as those at issue in the main proceedings, constitute purely informative documents, the content of which is essentially determined by the information which they contain, so that such information and the expression of those reports become indissociable and that those reports are thus entirely characterised by their technical function, precluding all originality, it should be considered, as the Advocate General stated in point 19 of his Opinion, that, in drafting those reports, it was impossible for the author to express his or her creativity in an original manner and to achieve a result which is that author’s own intellectual creation (see, to that effect, judgments of 22 December 2010, Bezpečnostní softwarová asociace, C‑393/09, EU:C:2010:816, paragraphs 48 to 50, and of 2 May 2012, SAS Institute, C‑406/10, EU:C:2012:259, paragraph 67 and the case-law cited). It would then be incumbent on the national court to find that such reports were not ‘works’ within the meaning of Article 2(a) and of Article 3(1) of Directive 2001/29 and, therefore, that they cannot enjoy the protection conferred by those provisions.25It follows that it must be held that military status reports, such as those at issue in the main proceedings, can be protected by copyright only if those reports are an intellectual creation of their author which reflect the author’s personality and are expressed by free and creative choices made by that author in drafting those reports, which must be ascertained by the national court in each case.26The questions referred for a preliminary ruling must be answered subject to those qualifications. The first question 27As a preliminary matter, it should be noted, as is clear from paragraphs 13 and 14 above, that the first question relates to the application by the referring court, for the purposes of disposing of the case in the main proceedings, of the rules on the reporting of current events and quotations, laid down respectively in Paragraphs 50 and 51 of the UrhG, which transpose Article 5(3)(c) and (d) of Directive 2001/29.28Although the referring court has not specifically referred a question on the interpretation of those provisions of Directive 2001/29 to the Court, since the referring court has specifically indicated that, according to the Oberlandesgericht Köln (Higher Regional Court, Cologne), Funke Medien’s publication of the UdPs on its website did not satisfy the conditions set out in Paragraphs 50 and 51 of the UrhG, it nevertheless harbours doubts as to whether Article 2(a) and Article 3(1) of that directive allow the Member States discretion in their transposition, since, according to the case-law of the Bundesverfassungsgericht (Federal Constitutional Court), national legislation which transposes an EU directive must be measured, as a rule, not against the fundamental rights guaranteed by the GG, but solely against the fundamental rights guaranteed by EU law, where that directive does not allow the Member States any discretion in its transposition.29In that context, by its first question, the referring court asks, in essence, whether Article 2(a) and Article 3(1) of Directive 2001/29 first, and Article 5(3)(c), second case, and (d) of Directive 2001/29 second, must be interpreted as constituting measures of full harmonisation.30In that regard, it should be stated that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of that State (judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 59).31It should be noted in that connection that, since the transposition of a directive by the Member States is covered, in any event, by the situation, referred to in Article 51 of the Charter, in which the Member States are implementing Union law, the level of protection of fundamental rights provided for in the Charter must be achieved in such a transposition, irrespective of the Member States’ discretion in transposing the directive.32That said, where, in a situation in which action of the Member States is not entirely determined by EU law, a national provision or measure implements EU law for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60, and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29).33Thus, it is consistent with EU law for national courts and authorities to make that application subject to the condition, emphasised by the referring court, that the provisions of a directive ‘allow [some] discretion in terms of implementation in national law’, provided that that condition is understood as referring to the degree of the harmonisation effected in those provisions, since such an application is conceivable only in so far as those provisions do not effect full harmonisation.34In the present case, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright and related rights, of which a number of provisions also disclose the intention of the EU legislature to grant a degree of discretion to the Member States in the implementation of the directive (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 57).35As regards, in the first place, the exclusive right of holders referred to in Article 2(a) and in Article 3(1) of Directive 2001/29, it has been stated, in paragraph 18 above, that, according to that provision Member States are to provide authors, respectively, with the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction of their works by any means and in any form, and the exclusive right to authorise or prohibit the communication to the public of their works.36Those provisions therefore define a copyright holder’s exclusive right in the European Union of reproduction and making available to the public in unequivocal terms. Furthermore, those provisions are not qualified by any condition, or subject, in their implementation or effects, to any measure being taken in any particular form.37The Court has moreover previously held in that regard that those provisions form a harmonised legal framework ensuring a high and even level of protection for the rights of reproduction and making available to the public (Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 119 and the case-law cited; see also, as regards the right to make available to the public, judgments of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 41, and of 1 March 2017, ITV Broadcasting and Others, C‑275/15, EU:C:2017:144, paragraph 22 and the case-law cited).38It follows that Article 2(a) and Article 3(1) of Directive 2001/29 constitute measures of full harmonisation of the corresponding substantive law (see, by analogy, as regards the exclusive right of an EU trade mark proprietor, judgments of 20 November 2001, Zino Davidoff and Levi Strauss, C‑414/99 to C‑416/99, EU:C:2001:617, paragraph 39, and of 12 November 2002, Arsenal Football Club, C‑206/01, EU:C:2002:651, paragraph 43).39In the second place, it should be noted, as is clear from recital 32 of Directive 2001/29, Article 5(2) and (3) of that directive sets out a list of exceptions and limitations to the exclusive rights of reproduction and of communication to the public.40In that regard, it is clear from the case-law of the Court that the scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation referred to in Article 5(2) or (3) of Directive 2001/29 must be determined on a case-by-case basis, in particular, according to the wording of the provision in question (see, to that effect, judgments of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 36; of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 16; and of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 27; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 116), the degree of the harmonisation of the exceptions and limitations intended by the EU legislature being based on their impact on the smooth functioning of the internal market, as stated in recital 31 of Directive 2001/29.41Under Article 5(3)(c), second case, and (d) of Directive 2001/29, the exceptions or limitations referred to are comprised respectively of ‘use of works or other subject matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible’ and ‘quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose’.42As is clear from its content, that provision does not constitute full harmonisation of the scope of the exceptions or limitations which it contains.43It is clear, first, from the use, in Article 5(3)(c), second case, and (d) of Directive 2001/29 of the wording ‘to the extent justified by the informatory purpose’ and ‘in accordance with fair practice, and to the extent required by the specific purpose’ respectively, that, in the transposition of that provision and its application under national law, the Member States enjoy significant discretion allowing them to strike a balance between the relevant interests. Second, Article 5(3)(d) of that directive sets out, in respect of cases of permissible quotation, merely an illustrative list of such cases, as is clear from the use of the words ‘for purposes such as criticism or review’.44The existence of that discretion is supported by the legislative drafts which preceded the adoption of Directive 2001/29. Thus, it is stated in the Explanatory Memorandum to the Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society of 10 December 1997 (COM(97) 628 final), relating to the limitations which are now provided for, in essence, in Article 5(3)(c) and (d) of Directive 2001/29, that, in view of their more limited economic importance, those limitations are deliberately not dealt with in detail in the framework of the proposal, which only sets out minimum conditions for their application, and it is for the Member States to define the detailed conditions for their use, albeit within the limits set out by that provision.45Notwithstanding the foregoing considerations, the Member States’ discretion in the implementation of Article 5(3)(c), second case, and (d) of Directive 2001/29 is circumscribed in several regards.46First, the Court has repeatedly held that the Member States’ discretion in the implementation of the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 must be exercised within the limits imposed by EU law, which means that the Member States are not in every case free to determine, in an unharmonised manner, the parameters governing those exceptions or limitations (see, to that effect, judgments of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 34; of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 104; and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 16; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 122).47The Court thus made clear that the option open to the Member States of implementing an exception or limitation to the harmonised rules laid down in Articles 2 and 3 of Directive 2001/29 is highly circumscribed by the requirements of EU law (see, to that effect, Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 126).48In particular, Member States may provide, in their law, for an exception or limitation referred to in Article 5(2) and (3) of Directive 2001/29 only if they comply with all the conditions laid down in that provision (see, by analogy, Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 123 and the case-law cited).49The Member States are also required, in that context, to comply with the general principles of EU law, which include the principle of proportionality, from which it follows that measures which the Member States may adopt must be appropriate for attaining their objective and must not go beyond what is necessary to achieve it (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 105 and 106).50Second, the Court has reaffirmed that the discretion enjoyed by the Member States in implementing the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 cannot be used so as to compromise the objectives of that directive that consist, as is clear from recitals 1 and 9 thereof, in establishing a high level of protection for authors and in ensuring the proper functioning of the internal market (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 107, and of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 34; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 124 and the case-law cited).51Nonetheless, it is also for the Member States, in effecting that implementation, to safeguard the effectiveness of the exceptions and limitations thereby established and to permit observance of their purpose (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 163, and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 23), in order to safeguard a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter, as stated in recital 31 of that directive.52Third, the Member States’ discretion in the implementation of the exceptions and limitations relevant to Article 5(2) and (3) of Directive 2001/29 is also circumscribed by Article 5(5) of the directive, which makes those exceptions or limitations subject to three conditions, namely that those exceptions or limitations may be applied only in certain special cases, that they do not conflict with a normal exploitation of the work and that they do not unreasonably prejudice the legitimate interests of the copyright holder (Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 125 and the case-law cited).53Lastly, fourth, as set out in paragraph 31 above, the principles enshrined in the Charter apply to the Member States when implementing EU law. It is therefore for the Member States, in transposing the exceptions and limitations referred to Article 5(2) and (3) of Directive 2001/29, to ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order (judgments of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46, and of 18 October 2018, Bastei Lübbe, C‑149/17, EU:C:2018:841, paragraph 45 and the case-law cited; see also, by analogy, judgment of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraphs 48 and 49 and the case-law cited).54In the light of the foregoing considerations, the answer to the first question is that Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations. The third question 55By its third question, which it is appropriate to consider in the second place, the referring court asks, in essence, whether freedom of information and freedom of the press, enshrined in Article 11 of the Charter, are capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to, respectively, in Article 2(a) and Article 3(1) of that directive.56First of all, it should be noted that it is clear both from the Explanatory Memorandum to Proposal COM(97) 628 final and from recital 32 of Directive 2001/29 that the list of exceptions and limitations contained in Article 5 of that directive is exhaustive, as the Court has also pointed out on several occasions (judgments of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 34, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 16).57As follows from recitals 3 and 31 of Directive 2001/29, the harmonisation effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by Article 17(2) of the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter, as well as of the public interest (see, to that effect, judgment of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 41).58The mechanisms allowing those different rights and interests to be balanced are contained in Directive 2001/29 itself, in that it provides inter alia, first, in Articles 2 to 4 thereof, rightholders with exclusive rights and, second, in Article 5 thereof, for exceptions and limitations to those rights which may, or even must, be transposed by the Member States, since those mechanisms must nevertheless find concrete expression in the national measures transposing that directive and in their application by national authorities (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 66 and the case-law cited).59The Court has repeatedly held that the fundamental rights now enshrined in the Charter, the observance of which the Court ensures, draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, to that effect, judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 35 and the case-law cited).60As regards the exceptions and limitations provided for in Article 5(3)(c), second case, and (d) of Directive 2001/29 in respect of which the referring court has doubts, it is to be noted that they are specifically aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press, which is of particular importance when protected as a fundamental right, over the interest of the author in being able to prevent the use of his or her work, whilst ensuring that the author has the right, in principle, to have his or her name indicated (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 135).61Article 5(5) of that directive also contributes to the fair balance mentioned in paragraphs 51 and 57 above, in that, as has been stated in paragraph 52 above, it requires that the exceptions and limitations provided for in Article 5(1) to (4) of the directive be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.62In that context, to allow, notwithstanding the express intention of the EU legislature, set out in paragraph 56 above, each Member State to derogate from an author’s exclusive rights, referred to in Articles 2 to 4 of Directive 2001/29, beyond the exceptions and limitations exhaustively set out in Article 5 of that directive, would endanger the effectiveness of the harmonisation of copyright and related rights effected by that directive, as well as the objective of legal certainty pursued by it (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 34 and 35). It is expressly clear from recital 31 of the directive that the differences that existed in the exceptions and limitations to certain restricted acts had direct negative effects on the functioning of the internal market of copyright and related rights, since the list of the exceptions and limitations set out in Article 5 of Directive 2001/29 is aimed at ensuring such proper functioning of the internal market.63In addition, as is clear from recital 32 of the directive, the Member States are required to apply those exceptions and limitations consistently. The requirement of consistency in the implementation of those exceptions and limitations could not be ensured if the Member States were free to provide for such exceptions and limitations beyond those expressly set out in Directive 2001/29 (see, to that effect, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 38 and 39), since the Court has moreover previously held that no provision of Directive 2001/29 envisages the possibility for the scope of such exceptions or limitations to be extended by the Member States (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 27).64In the light of the foregoing considerations, the answer to the third question is that freedom of information and freedom of the press, enshrined in Article 11 of the Charter, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively. The second question 65By its second question, the referring court asks, in essence, whether, in striking the balance which it is incumbent on a national court to undertake between the exclusive rights of the author referred to in Article 2(a) and Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter derogating from the former, a national court may depart from a restrictive interpretation of the latter provisions in favour of an interpretation which takes full account of the need to respect freedom of expression and freedom of information, enshrined in Article 11 of the Charter.66The referring court harbours doubts in that regard as to the possibility of applying, in the present case, Article 5(3)(c), second case, of Directive 2001/29 to Funke Medien’s use of UdPs on the ground that Funke Medien did not add any distinct act of summary to the publication of the UdPs.67As set out in paragraph 53 above, it is for the Member States, in transposing the exceptions and limitations referred to in Article 5(2) and (3) of Directive 2001/29, to ensure that they rely on an interpretation of those exceptions and limitations which allows for a fair balance to be struck between the various fundamental rights protected by the EU legal order.68Subsequently, when applying the measures transposing that directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also make sure that they do not rely on an interpretation of it which would be in conflict with those fundamental rights or with the other general principles of EU law, as the Court has repeatedly held (see, to that effect, judgments of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 70; of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46; and of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 34).69It is certainly the case, as the referring court notes, that any derogation from a general rule must, in principle, be interpreted strictly.70However, although Article 5 of Directive 2001/29 is expressly entitled ‘Exceptions and limitations’, it should be noted that those exceptions or limitations do themselves confer rights on the users of works or of other subject matter (see, to that effect, judgment of 11 September 2014, Eugen Ulmer, C‑117/13, EU:C:2014:2196, paragraph 43). In addition, that article is specifically intended, as has been stated in paragraph 51 above, to ensure a fair balance between, on the one hand, the rights and interests of rightholders, which must themselves be given a broad interpretation (see, to that effect, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraphs 30 and 31 and the case-law cited) and, on the other hand, the rights and interests of users of works or other subject matter.71It follows that the interpretation of the exceptions and limitations provided for in Article 5 of Directive 2001/29 must allow, as is clear from paragraph 51 above, their effectiveness to be to safeguarded and their purpose to be observed, since such a requirement is of particular importance where those exceptions and limitations aim, as do those provided for in Article 5(3)(c) and (d) of Directive 2001/29, to ensure observance of fundamental freedoms.72In that context, first, it should be added that the protection of intellectual property rights is indeed enshrined in Article 17(2) of the Charter. There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be protected as an absolute right (judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 43; of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraph 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 61).73Second, it has been stated in paragraph 60 above that Article 5(3)(c) and (d) of Directive 2001/29 is aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press, enshrined in Article 11 of the Charter. In that regard, it should be noted that, in so far as the Charter contains rights which correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, by analogy, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 26 September 2018, Staatssecretaris van Veiligheid en justitie (Suspensory effect of the appeal), C‑180/17, EU:C:2018:775, paragraph 31 and the case-law cited). Article 11 of the Charter contains rights which correspond to those guaranteed by Article 10(1) of the ECHR (see, to that effect, judgment of 14 February 2019, Buivids, C‑345/17, EU:C:2019:122, paragraph 65 and the case-law cited).74As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest (see, to that effect, ECtHR, 10 January 2013, Ashby Donald and Others v. France, CE:ECHR:2013:0110JUD003676908, § 39).75In the present case, according to the case file, Funke Medien not only published the UdPs on its website, but also presented them in a structured form in conjunction with an introductory note, further links and a space for comments. Accordingly, supposing that UdPs were regarded as ‘works’ within the meaning of Article 2(a) and of Article 3(1) of Directive 2001/29, it would need to be held that the publication of those documents may amount to ‘use of works … in connection with … reporting’. Such publication would therefore be capable of falling within Article 5(3)(c), second case, of Directive 2001/29, provided that the other conditions set out in that provision were satisfied, which is for the referring court to ascertain.76In the light of the foregoing considerations, the answer to the second question is that, in striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter. Costs 77Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations. 2. Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively. 3. In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. [Signatures]( *1 ) Language of the case: German. | b3c9a-5b2c93e-44f8 | EN |
The General Court upholds the Commission’s Decision finding that there was a cartel on the optical disk drives market | 12 July 2019 ( *1 )(Competition — Agreements, decisions and concerted practices — Market for optical disk drives — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers — Infringement by object — Rights of the defence — Obligation to state reasons — Principle of good administration — Fines — Single and continuous infringement — 2006 Guidelines on the method of setting fines)In Case T‑762/15, Sony Corporation, established in Tokyo (Japan), Sony Electronics, Inc., established in San Diego, California (United States),represented by R. Snelders, lawyer, N. Levy and E. Kelly, Solicitors,applicants,v European Commission, represented initially by M. Farley, A. Biolan, C. Giolito, F. van Schaik and L. Wildpanner, and subsequently by M. Farley, F. van Schaik, L. Wildpanner and A. Dawes, acting as Agents,defendant,ACTION under Article 263 TFEU seeking, principally, annulment in part of Commission Decision C(2015) 7135 final of 21 October 2015 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 — Optical disk drives), or, in the alternative, a reduction of the amount of the fine imposed on the applicants,THE GENERAL COURT (Fifth Chamber),composed of D. Gratsias, President, I. Labucka and I. Ulloa Rubio (Rapporteur), Judges,Registrar: N. Schall, Administrator,having regard to the written part of the procedure and further to the hearing on 2 May 2018,gives the following Judgment ( 1 ) Background to the dispute 1According to Decision C(2015) 7135 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 — Optical disk drives) (‘the contested decision’), concerning collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers organised by two computer manufacturers, the Sony group manufactures audio, video, communications and information technology products for the consumer and professional markets and is a provider of entertainment content, products and services (contested decision, recital 15).2The first applicant, Sony Corporation, which is a stock corporation governed by Japanese law, is the group’s ultimate parent company. The second applicant, Sony Electronics, Inc., is a wholly-owned indirect subsidiary of Sony Corporation and is established in the United States. Sony Electronics, which is governed by the laws of Delaware (United States), carries out research and development, design, engineering, sales, marketing, distribution, and customer service activities (contested decision, recital 16).3Sony Corporation and Sony Electronics (together ‘the applicants’ or ‘Sony’), are jointly referred to as ‘Sony’ in the contested decision (contested decision, recital 17).4Sony Electronics was, together with Sony Corporation, the legal entity participating on behalf of Sony in the procurement events organised by Dell and continued to do so until 1 April 2007 (contested decision, recital 18).5Sony Optiarc, Inc., is a stock corporation governed by Japanese law. It was established on 3 April 2006 as a joint venture of Sony Corporation and NEC Corporation under the business name Sony NEC Optiarc Inc. Each parent company contributed its respective optical disk drive (‘ODD’) business to Sony NEC Optiarc. Sony Corporation acquired 55% of the voting shares of the joint venture, and NEC Corporation the remaining 45% (contested decision, recital 19).6Between May 2003 and March 2007, Lite-On designed and manufactured ODD products ultimately sold under the Sony brand on the basis of revenue-sharing arrangements. Under the arrangements, sales responsibility was in general conferred upon Sony, while Lite-On was responsible for quality and engineering issues (contested decision, recital 26).7The infringement concerns ODDs used in personal computers (desktops and notebooks) (‘PCs’) produced by Dell and Hewlett Packard (‘HP’). ODDs are also used in a wide range of other consumer appliances such as compact disc (‘CD’) or digital versatile disc (‘DVD’) players, game consoles and other electronic hardware devices (contested decision, recital 28).8ODDs used in PCs differ according to their size, loading mechanisms (slot or tray) and the types of discs that they can read or write. ODDs can be split into two groups: ‘half-height’ (‘HH’) drives for desktops and slim drives for notebooks. The slim drive sub-group includes drives that vary by size. Both HH and slim drives differ by type depending on their technical functionality (contested decision, recital 29).9Dell and HP are the two most important original equipment manufacturers on the global market for PCs. Dell and HP use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers. Generally, regional issues did not play any role in ODD procurement other than that related to forecasted demand from regions affecting overall purchase volumes (contested decision, recital 32).10The procurement procedures included requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the close of a procurement event, customers would allocate volumes to participating ODD suppliers (to all or at least most of them, unless there was an exclusion mechanism in place) depending on their quoted prices. For example, the winning bid would receive 35 to 45% of the total market allocation for the relevant quarter, the second best 25 to 30%, the third 20% and so on. These standardised procurement procedures were used by customers’ procurement teams with the purpose of achieving efficient procurement at competitive prices. To this end, they used all possible practices to stimulate the price competition between the ODD suppliers (contested decision, recital 33).11As regards Dell, it mainly carried out bidding events by internet negotiation. That negotiation could last for a specific period of time or end after a defined period, for example 10 minutes after the last bid, when no ODD supplier continued bidding. In certain circumstances, internet negotiations could last several hours if the bidding was more active or if the duration of the internet negotiation was extended in order to incentivise ODD suppliers to continue bidding. Conversely, even where the length of the internet negotiation was indefinite and depended on the final bid, Dell could announce at some point that the internet negotiation had closed. Dell could decide to change from a ‘rank-only’ to a ‘blind’ procedure. Moreover, Dell could cancel the internet negotiation if the bidding or its result were found to be unsatisfactory and run a bilateral negotiation instead. The internet negotiation process was monitored by Dell’s responsible Global Commodity Managers (contested decision, recital 37).12With respect to HP, the main procurement procedures used were requests for quotations and electronic requests for quotations. Both procedures were carried out online using the same platform. As regards (i) the requests for quotations, they were quarterly. They combined online and bilateral offline negotiations spread over a period of time, usually two weeks. ODD suppliers were invited to a round of open bidding for a specified period of time to submit their quote to the online platform or by email. Once the first round of bidding had elapsed, HP would meet with each participant and start negotiations based on the ODD supplier’s bid to obtain a better bid from each supplier without disclosing the identity or the bid submitted by any other ODD supplier. As regards (ii) the electronic requests for quotations, they were normally run in the format of a reverse auction. In that format, bidders would log onto the online platform at the specified time and the auction would start at a price set by HP. Bidders entering progressively lower bids would be informed of their own rank each time a new bid was submitted. At the end of the allotted time, the ODD supplier having entered the lowest bid would win the auction and other suppliers would be ranked second and third according to their bids (contested decision, recitals 41 to 44). Administrative procedure 13On 14 January 2009, the Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) (‘the 2006 Leniency Notice’) from Philips. On 29 January and 2 March 2009 that request was supplemented to include, alongside Philips, Lite-On and their joint venture Philips & Lite-On Digital Solutions Corporation (‘PLDS’) (contested decision, recital 54).14On 29 June 2009, the Commission sent a request for information to undertakings active in the ODD sector (contested decision, recital 55).15On 30 June 2009, the Commission granted conditional immunity to Philips, Lite-On and PLDS (contested decision, recital 56).16On 18 July 2012, the Commission sent a statement of objections to 13 suppliers of ODDs, including the applicants (‘the statement of objections’). It stated that those companies had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009 consisting in orchestrating their behaviour in bidding events organised by two computer manufacturers, Dell and HP.17On 29 October 2012, in reply to the statement of objections, the applicants submitted their written comments.18On 23 November 2012, Dell replied to the request for information that the Commission had addressed to it (contested decision, recital 61).19An oral hearing was held on 29 and 30 November 2012, in which all the addressees of the statement of objections participated (contested decision, recital 60).20On 14 December 2012, the Commission requested all the parties to provide the relevant documents received from Dell and HP. All the parties replied to those requests and each was granted access to the replies provided by the other ODD suppliers (contested decision, recital 62).21On 21 October 2015, the Commission adopted the contested decision. Contested decision 22In the contested decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts (contested decision, recital 67).23The Commission specified, in the contested decision, that the coordination between the cartel participants concerned the customer accounts of Dell and HP, the two most important original equipment manufacturers on the global market for PCs. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers’ attempts to stimulate price competition (contested decision, recital 68).24According to the Commission, regular exchanges of information in particular enabled the cartel members to possess a very complex knowledge of their competitors’ intentions even before they had entered the procurement procedure, and therefore to foresee their competitive strategy (contested decision, recital 69).25The Commission added that, on a regular basis, the cartel members exchanged pricing information regarding specific customer accounts as well as information unrelated to pricing, such as existing production and supply capacity, inventory status, the qualification status, and timing of the introduction of new products or upgrades. The Commission stated that, in addition, the ODD suppliers monitored the final results of closed procurement events, that is the rank, the price and the volume (contested decision, recital 70).26The Commission further stated that, whilst taking into account that they must keep their contacts secret from customers, to contact each other suppliers used the means they deemed sufficiently appropriate to achieve the desired result. The Commission specified that in fact an attempt to convene a kick-off meeting to hold regular multilateral meetings between ODD suppliers had failed in 2003 after having been revealed to a customer. According to the Commission, instead, there were bilateral contacts, mostly via phone calls and, from time to time, also via emails, including private (hotmail) addresses and instant messaging services, or meetings, mostly at the level of global account managers (contested decision, recital 71).27The Commission found that the cartel participants contacted each other regularly and that the contacts, mainly by telephone, became more frequent around the procurement events, amounting to several calls per day between some pairs of cartel participants. It stated that, generally, contacts between some pairs of cartel participants were significantly higher than between other pairs (contested decision, recital 72).28When calculating the amount of the fine imposed on the applicants, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines’).29First of all, in order to determine the basic amount of the fine, the Commission considered that, in view of the considerable differences in the duration of the suppliers’ participation and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings during the full calendar months of their respective participation in the infringement (contested decision, recital 527).30The Commission thus explained that the value of sales was calculated on the basis of sales of ODDs for notebooks and desktops and invoiced to HP and Dell entities located in the EEA (contested decision, recital 528).31The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied (contested decision, recital 530).32As regards the applicants, as it had not been established that Sony had participated in the contacts concerning HP, the Commission found them liable only for their coordination with respect to Dell (contested decision, recital 531).33Next, the Commission decided that, since price coordination agreements are by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the contested decision (contested decision, recital 544).34Furthermore, the Commission stated that, given the circumstances of the case, it had decided to add an amount of 16% for deterrence (contested decision, recitals 554 and 555).35In addition, the Commission reduced the amount of the fine imposed on the applicants by 3% in order to take into account the fact that they had not been aware of the part of the single and continuous infringement concerning HP, in order to reflect in an adequate and sufficient manner the less serious nature of their conduct (contested decision, recital 561).36Lastly, the Commission considered that, as Sony had had a worldwide turnover of EUR 59252000000 during the business year preceding the adoption of the contested decision, it was appropriate to apply a multiplier of 1.2 to the basic amount (contested decision, recital 567).37The operative part of the contested decision, in so far as it concerns the applicants, reads as follows:‘Article 1The following undertakings infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the optical disk drives sector covering the whole of the EEA, which consisted of price coordination arrangements:...(f)[the applicants] from 23 August 2004 to 15 September 2006, for their coordination with regards to Dell.Article 2For the infringement referred to in Article 1, the following fines are imposed:[the applicants], jointly and severally liable: EUR 21024000’. Procedure and forms of order sought 38By application lodged at the Court Registry on 31 December 2015, the applicants brought the present action.39The Commission lodged its defence on 25 May 2016.40On a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 91 of its Rules of Procedure, requested the Commission to lodge certain documents relating to confidential statements. The Commission stated that it was unable to produce the transcripts of those confidential statements, which had been lodged in the context of its leniency programme.41By order of 23 April 2018, adopted pursuant (i) to the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and (ii) to Article 91(b) and Article 92(3) of the Rules of Procedure, the Court (Fifth Chamber) ordered the Commission to produce those transcripts, which could be consulted by the applicants’ lawyers at the Court Registry before the hearing.42The Commission produced those transcripts on 24 April 2018 and the applicants’ representatives consulted them at the Court Registry on 30 April 2018.43The parties presented oral argument and answered the questions put to them by the Court at the hearing on 2 May 2018.44The applicants claim that the Court should:–annul the contested decision in so far as it concerns them;in the alternative, reduce the amount of the fine imposed on them;order the Commission to pay the costs.45The Commission contends that the Court should:dismiss the action;order the applicants to pay the costs. Law 46The applicants raise two pleas in support of this action, the first relating, in essence, to the existence of an infringement of Article 101(1) TFEU, and the second, raised in the alternative, to the calculation of the fine imposed on them.… Second plea, raised in the alternative: the setting of the fine is vitiated by errors of fact and of law and by an insufficient statement of reasons Third part: a multiplier for deterrence was imposed only on Sony 292It should be recalled that the need to ensure that the fine has a sufficient deterrent effect requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the other hand excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to ensure that the fine is effective and, second, respect for the principle of proportionality (see judgment of 13 July 2011, General Technic-Otis and Others v Commission, T‑141/07, T‑142/07, T‑145/07 and T‑146/07, EU:T:2011:363, paragraph 239 and the case-law cited).293The size and overall resources of an undertaking are relevant criteria in view of the objective pursued, namely ensuring that the fine is effective by adjusting its amount having regard to the overall resources of the undertaking and its capacity to raise the funds necessary to pay that fine. The setting of the rate of increase of the starting amount in order to ensure that the fine has a sufficiently deterrent effect is intended more to ensure the effectiveness of the fine than to reflect the harmfulness of the infringement to normal competition and thus the gravity of the infringement (see judgment of 13 July 2011, General Technic-Otis and Others v Commission, T‑141/07, T‑142/07, T‑145/07 and T‑146/07, EU:T:2011:363, paragraph 241 and the case-law cited).294In the present case, the applicants do not dispute the amount, indicated in recital 567 of the contested decision, of the worldwide turnover generated by Sony during the business year preceding the adoption of that decision, namely EUR 59252000000.295The applicants’ only argument is that the turnover of the parent companies of some of the other addressees of the contested decision is comparable to or higher than that of Sony, which recorded heavy losses in 2014, at a time when parent companies, such as Samsung, TSST’s parent company, and Hitachi, HLDS’s parent company, were allegedly recording significant profits.296It should be pointed out that, although Sony Corporation was held liable for the infringement of its subsidiary, Sony Electronics (recitals 507 and 569 of the contested decision), to the extent that the Commission refers to them jointly as ‘Sony’ in the contested decision (see paragraph 3 above), the infringement in which TSST and HLDS participated was not imputed to Samsung and Hitachi, respectively (recitals 11 to 14 and 569 of the contested decision).297The Commission cannot therefore be criticised for having applied a multiplier for deterrence to the applicants whereas it did not increase the amount of the fines imposed on TSST and HLDS in the light of the turnover and profits generated by Samsung and Hitachi.298It is therefore necessary to reject that argument of the applicants as well as the third part of the second plea and, therefore, the second plea in its entirety.On those grounds,THE GENERAL COURT (Fifth Chamber)hereby: 1. Dismisses the action; 2. Orders Sony Corporation and Sony Electronics, Inc. to bear their own costs and pay the costs incurred by the European Commission. GratsiasLabuckaUlloa RubioDelivered in open court in Luxembourg on 12 July 2019.E. CoulonRegistrarD. GratsiasPresident( *1 ) Language of the case: English.( 1 ) Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here. | 93d21-15895f2-4c49 | EN |
Connecting flights that are the subject of a single reservation departing from a Member State to a non-Member State via another non-Member State: the air carrier that performed the first flight is obliged to pay compensation to passengers who suffered a long delay in the arrival of the second flight performed by a nonCommunity air carrier | 11 July 2019 ( *1 )Reference for a preliminary ruling — Transport — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Regulation (EC) No 261/2004 — Article 5(1)(c) — Article 7(1) — Right to compensation — Connecting flights — Flights consisting of two flights operated by different air carriers — Long delay in relation to the second flight with points of departure and arrival outside the European Union and operated by a carrier established in a non-Member State)In Case C‑502/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Městský soud v Praze (Prague City Court, Czech Republic), made by decision of 17 May 2018, received at the Court on 30 July 2018, in the proceedings CS and Others v České aerolinie a.s., THE COURT (Ninth Chamber),composed of K. Jürimäe, President of the Chamber, D. Šváby (Rapporteur) and S. Rodin, Judges,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:–CS and Others, by R. Jehne, advokát,České aerolinie a.s., by J. Horník, advokát,the Italian Government, by G. Palmieri, acting as Agent, and by P. Garofoli, avvocato dello Stato,the European Commission, by P. Němečková and N. Yerrell, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3(5) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).2The request has been made in proceedings between CS and Others (‘the passengers concerned’) and České aerolinie a.s., an air carrier, concerning the latter’s refusal to pay compensation to those passengers, when the arrival time of their connecting flights was subject to a long delay. Legal context European Union law 3Article 2(b) and (c) of Regulation No 261/2004 provides:‘For the purposes of this Regulation:…(b)“operating air carrier” means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger;(c)“Community carrier” means an air carrier with a valid operating licence granted by a Member State in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers [(OJ 1992 L 240, p. 1)];’4Article 3(1) and (5) of that regulation, that article being headed ‘Scope’, provides:‘1. This Regulation shall apply:(a)to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;5. This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.’5Article 5(1)(c) of that regulation provides:‘In case of cancellation of a flight, the passengers concerned shall:have the right to compensation by the operating air carrier in accordance with Article 7, unless:(i)they are informed of the cancellation at least two weeks before the scheduled time of departure; or(ii)they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or(iii)they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.’6Article 7(1) of that regulation is worded as follows:‘Where reference is made to this Article, passengers shall receive compensation amounting to:EUR 600 for all flights not falling under (a) or (b).…’7Article 13 of Regulation No 261/2004 states:‘In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. Similarly, no provision of this Regulation may be interpreted as restricting the right of a tour operator or a third party, other than a passenger, with whom an operating air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.’ The dispute in the main proceedings and the question referred for a preliminary ruling 8The passengers concerned, 11 in number, each made a reservation with České aerolinie for flights from Prague (Czech Republic) to Bangkok (Thailand) via Abu Dhabi (United Arab Emirates).9The first of those connecting flights, operated by České aerolinie and connecting Prague and Abu Dhabi, was carried out according to the flight plan and the plane arrived on time at its destination. However, the second flight, operated, under a code-share agreement, by Etihad Airways, which is not a ‘Community carrier’, within the meaning of Article 2(c) of Regulation No 261/2004, and connecting Abu Dhabi and Bangkok, arrived 488 minutes late.10Since České aerolinie refused to pay the passengers concerned the compensation provided for in Article 7(1)(c) of Regulation No 261/2004, they brought an action before the Czech first instance court with jurisdiction to hear an action against that carrier. That court upheld their request for compensation, holding, in particular, that, even though it had not performed the flight which was subject to the long delay, České aerolinie could be obliged to pay that compensation pursuant to the last sentence of Article 3(5) of Regulation No 261/2004.11That decision was upheld on appeal by the referring court, the Městský soud v Praze (Prague City Court, Czech Republic). In its judgment of 26 April 2016, that court held, inter alia, that there was no need to refer to the Court a request for a preliminary ruling under Article 267 TFEU, since the interpretation of Article 3(5) of Regulation No 261/2004 could be clearly inferred from the wording of that regulation and from the judgment of the Court of 28 February 2013, Folkerts (C‑11/11, EU:C:2013:106). In that regard, the referring court considered that it follows from that provision that České aerolinie was directly liable to the passengers concerned for the harm they suffered on account of the delay in the part of the connecting flights operated by the company Etihad Airways, since a constituent element of the legal concept of ‘agency’ is that the acts of the agent can be directly attributed to the principal. Further, according to the referring court, that interpretation of the regulation was entirely pertinent to the facts of the case before it and was fair, in that the liability of the contractual carrier stems from the contract and the carrier cannot be relieved of liability on the ground that the delayed part of the flight was operated by another party, and in that the situation was comparable to any other form of subcontracting.12That judgment was however set aside by the Ústavní soud (Constitutional Court, Czech Republic), by a judgment of 31 October 2017. In its judgment, the Ústavní soud (Constitutional Court) instructed the referring court to examine the arguments of České aerolinie in which it relied on a judgment of the Bundesgerichtshof (Federal Court of Justice, Germany) where that court held that the liability of the contractual carrier could not be established where it was not itself the operating air carrier.13The case having been sent back to it by the Ústavní soud (Constitutional Court), the referring court finds that the passengers concerned can successfully claim the remedy of compensation only if the contractual carrier, in this case České aerolinie, can be held to be responsible for the long delay in the arrival of the flight operated outside the European Union by an air carrier that is itself established outside the European Union, namely Etihad Airways. The requirement of a high level of protection of passengers is conducive to such an interpretation, particularly when, as in this case, the connecting flights at issue are such that one flight is operated outside the European Union by a non-Community carrier, implying that Regulation No 261/2004 is not applicable. On the other hand, the fact that that regulation provides that the party liable to pay the compensation provided for in Article 7(1)(c) is the operating air carrier militates against such an interpretation, that position being supported by the case-law of the Bundesgerichtshof (Federal Court of Justice).14In those circumstances, the Městský soud v Praze (Prague City Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Is there an obligation on a Community carrier to pay compensation to passengers under the second sentence of Article 3(5) of [Regulation No 261/2004] where the Community carrier, as the contractual carrier, operated the first leg of a flight with a stopover at an airport in a non-Member State, from which, under a code-share agreement, a carrier which is not a Community carrier operated the second leg of the flight and there was a delay, of more than 3 hours in the arrival at the final destination airport, which arose exclusively in the second leg of the flight?’ Consideration of the question referred 15By its question, the referring court seeks, in essence, to ascertain whether Article 5(1)(c) and Article 7(1) of Regulation No 261/2004, read together with Article 3(5) of that regulation, must be interpreted as meaning that, in the case of connecting flights, where there are two flights that are the subject of a single reservation, departing from an airport located within the territory of a Member State and travelling to an airport located in a non-Member State via the airport of another non-Member State, a passenger who suffers a delay in reaching his or her destination of 3 hours or more, the cause of that delay arising in the second flight, operated, under a code-share agreement, by a carrier established in a non-Member State, may bring his or her action for compensation under that regulation against the Community carrier that operated the first flight.16As a preliminary point, it must be recalled, in the first place, that a flight with one or more connections which is the subject of a single reservation constitutes a whole for the purposes of the right of passengers to compensation provided for in Regulation No 261/2004 (see, to that effect, judgment of 31 May 2018, Wegener, C‑537/17, EU:C:2018:361, paragraphs 18 and 19 and the case-law cited), implying that the applicability of Regulation No 261/2004 is to be assessed with regard to the place of a flight’s initial departure and the place of its final destination (see, to that effect, judgment of 31 May 2018, Wegener, C‑537/17, EU:C:2018:361, paragraph 25).17Under Article 3(1)(a) of Regulation No 261/2004, that regulation is applicable to, in particular, passengers departing from an airport located in the territory of a Member State to which the Treaty applies.18Connecting flights such as those at issue in the main proceedings, connecting Prague to Bangkok via Abu Dhabi, departing from an airport located in the territory of a Member State, therefore fall within the scope of Regulation No 261/2004.19In the second place, the Court has held that passengers whose flights are delayed must be regarded as being entitled to the compensation provided for in Article 5(1)(c) of Regulation No 261/2004, read together with Article 7(1) of that regulation, where they suffer, on arrival at their final destination, a loss of time equal to or in excess of 3 hours (see, to that effect, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 61, and of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 38).20As regards who is liable to pay the compensation due in a case of long delay in the arrival of connecting flights, such as that at issue in the main proceedings, it is apparent from the wording of Article 5(1)(c) and Article 5(3) of Regulation No 261/2004 that the party liable can only be the ‘operating air carrier’, within the meaning of Article 2(b) of that regulation.21It must therefore be determined whether, in a situation such as that at issue in the main proceedings, a carrier such as České aerolinie can be categorised as such.22Under Article 2(b) of Regulation No 261/2004, an ‘operating air carrier’ is ‘an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.23Accordingly, that definition sets out two cumulative conditions which must be satisfied if an air carrier is to be regarded as an ‘operating air carrier’, relating, first, to the performance of the flight in question and, second, to the existence of a contract with a passenger (judgment of 4 July 2018, Wirth and Others, C‑532/17, EU:C:2018:527, paragraph 18).24In this case, and as is stated in the order for reference, it is undisputed that České aerolinie did perform a flight under the contract of carriage with the passengers concerned.25Consequently, České aerolinie must be categorised as the ‘operating air carrier’ and therefore is liable, subject to Article 5(3) of Regulation No 261/2004, to pay the compensation provided for in Article 5(1)(c) and Article 7(1) of that regulation.26Such a finding cannot be called into question by the fact, referred to by České aerolinie in its written observations, that the cause of the delay which the passengers concerned had to suffer was not in the first of the connecting flights, performed by that carrier, but in the second of the connecting flights, performed by another air carrier.27In that regard, it must be observed, first, that, as is apparent from the case-law cited in paragraph 16 of the present judgment, flights with one or more connections that are the subject of a single reservation must be regarded as a single unit, which implies that, in the context of such flights, an operating air carrier that has operated the first flight cannot take refuge behind a claim that the performance of a subsequent flight operated by another air carrier was imperfect.28Further, the second sentence of Article 3(5) of Regulation No 261/2004 states that, where an operating air carrier which has no contract with the passenger performs obligations under this regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger.29Accordingly, in a situation such as that at issue in the main proceedings, where, in the context of connecting flights consisting of two flights that were the subject of a single reservation, the second flight is performed under a code-share agreement by an operating air carrier other than the operating air carrier that entered into the contract of carriage with the passengers concerned and that performed the first flight, the latter carrier remains subject to contractual obligations to the passengers, even in relation to the performance of the second flight.30Further, the objective of ensuring a high level of protection of passengers, stated in recital 1 of Regulation No 261/2004, is also capable of supporting the conclusion that, in the case of connecting flights that are the subject of a single reservation and that are operated under a code-share agreement, the operating air carrier that performed the first flight is liable to pay compensation even in the event of delay suffered during the second flight operated by another air carrier. Such an approach makes it possible to ensure that the passengers carried obtain compensation from the operating air carrier that entered into the contract of carriage with them, and they do not have to take account of arrangements made by that carrier for the performance of the second of the connecting flights.31Last, it must be recalled that, under Article 13 of Regulation No 261/2004, the discharge of obligations by the operating air carrier pursuant to that regulation is without prejudice to its right to seek compensation, under the applicable national law, from any person who caused the air carrier to fail to fulfil its obligations, including third parties (judgment of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 29 and the case-law cited).32Consequently, and more specifically in the case of connecting flights that are the subject of a single reservation and that are operated under a code-share agreement, it would, where appropriate, fall to the operating air carrier that has had to make payment of the compensation provided for by Regulation No 261/2004 because of a long delay affecting a flight that it did not itself perform, to bring an action against the operating air carrier responsible for that delay in order to obtain redress for that financial cost.33In the light of the foregoing, the answer to the question referred is that Article 5(1)(c) and Article 7(1) of Regulation No 261/2004, read together with Article 3(5) of that regulation, must be interpreted as meaning that, in the case of connecting flights, where there are two flights that are the subject of a single reservation, departing from an airport located within the territory of a Member State and travelling to an airport located in a non-Member State via the airport of another non-Member State, a passenger who suffers a delay in reaching his or her destination of 3 hours or more, the cause of that delay arising in the second flight, operated, under a code-share agreement, by a carrier established in a non-Member State, may bring his or her action for compensation under that regulation against the Community air carrier that performed the first flight. Costs 34Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Ninth Chamber) hereby rules: Article 5(1)(c) and Article 7(1) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read together with Article 3(5) of Regulation No 261/2004, must be interpreted as meaning that, in the case of connecting flights, where there are two flights that are the subject of a single reservation, departing from an airport located within the territory of a Member State and travelling to an airport located in a non-Member State via the airport of another non-Member State, a passenger who suffers a delay in reaching his or her destination of 3 hours or more, the cause of that delay arising in the second flight, operated, under a code-share agreement, by a carrier established in a non-Member State, may bring his or her action for compensation under that regulation against the Community air carrier that performed the first flight. [Signatures]( *1 ) Language of the case: Czech. | 8bf41-5c35d22-4bc5 | EN |
The General Court annuls the freezing of funds of seven members of the former Ukrainian ruling class, including Viktor Yanukovych, former President of Ukraine | 11 July 2019 ( *1 )(Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Maintenance of the applicant’s name on the list — Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)In Joined Cases T‑244/16 and T‑285/17, Viktor Fedorovych Yanukovych, residing in Kiev (Ukraine), represented by T. Beazley QC, E. Dean and J. Marjason-Stamp, Barristers,applicant,v Council of the European Union, represented by P. Mahnič and J.-P. Hix, acting as Agents,defendant,APPLICATION under Article 263 TFEU seeking the annulment, first, of Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 76), and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 1) and, second, of Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 34), and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 1), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures,THE GENERAL COURT (Sixth Chamber),composed of G. Berardis (Rapporteur), President, D. Spielmann and Z. Csehi, Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure and further to the hearing on 3 October 2018,gives the following Judgment Background to the dispute 1The present cases have been brought in the context of the restrictive measures adopted against certain persons, entities and bodies in view of the situation in Ukraine following the suppression of the demonstrations in Independence Square in Kiev (Ukraine) in February 2014.2The applicant, Mr Viktor Fedorovych Yanukovych, is the former President of Ukraine.3On 5 March 2014, the Council of the European Union adopted Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26). On the same day, the Council adopted Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1).4Recitals 1 and 2 of Decision 2014/119 state:‘(1)On 20 February 2014, the Council condemned in the strongest terms all use of violence in Ukraine. It called for an immediate end to the violence in Ukraine, and full respect for human rights and fundamental freedoms. It called upon the Ukrainian Government to exercise maximum restraint and opposition leaders to distance themselves from those who resort to radical action, including violence.(2)On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’5Article 1(1) and (2) of Decision 2014/119 provides as follows:‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’6The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.7In accordance with Decision 2014/119, Regulation No 208/2014 requires measures for the freezing of funds to be adopted and lays down the detailed rules governing that freezing of funds in terms which are identical, in essence, to those used in the decision.8The names of the persons covered by those acts appear on the identical list contained in the Annex to Decision 2014/119 and in Annex I to Regulation No 208/2014 (‘the list’) together with, inter alia, the reasons for their listing.9The applicant’s name was on the list along with the identifying information ‘former President of Ukraine’ and the following statement of reasons:‘Person subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’10By application lodged at the Court Registry on 14 May 2014, the applicant brought an action, registered as Case T‑346/14, seeking, inter alia, the annulment of Decision 2014/119 and Regulation No 208/2014 in so far as they concerned him.11On 29 January 2015, the Council adopted Decision (CFSP) 2015/143 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and Regulation (EU) 2015/138 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1).12Decision 2015/143 clarified, with effect from 31 January 2015, the listing criteria for persons against whom the freezing of funds is directed. In particular, Article 1(1) of Decision 2014/119 was replaced by the following:‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:(a)for the misappropriation of Ukrainian public funds or assets or being an accomplice thereto; or(b)for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’13Regulation 2015/138 amended Regulation No 208/2014 in accordance with Decision 2015/143.14On 5 March 2015, the Council adopted Decision (CFSP) 2015/364 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Implementing Regulation (EU) 2015/357 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1) (together, ‘the March 2015 acts’). Decision 2015/364, first, replaced Article 5 of Decision 2014/119, by extending the application of the restrictive measures, in so far as the applicant was concerned, until 6 March 2016, and, second, amended the Annex to that decision. Implementing Regulation 2015/357 consequently amended Annex I to Regulation No 208/2014.15By the March 2015 acts, the applicant’s name was maintained on the list with the identifying information ‘former President of Ukraine’ and the following new statement of reasons:‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.’16On 8 April 2015, the applicant modified his forms of order in Case T‑346/14 so that they would also cover the annulment of Decision 2015/143, Regulation 2015/138 and the March 2015 acts, in so far as those acts concerned him.17By letter of 6 November 2015, the Council sent the applicant a letter dated 3 September 2015 from the Prosecutor General’s Office of Ukraine (‘the PGO’) addressed to the High Representative of the European Union for Foreign Affairs and Security Policy. By letter of 26 November 2015, the applicant submitted his observations.18By letter of 15 December 2015, the Council sent to the applicant a letter from the PGO dated 30 November 2015. In that letter, the Council notified the applicant of its intention to maintain the restrictive measures against him and informed him of the time limit for submitting observations for the purpose of the annual review. By letter of 4 January 2016, the applicant submitted his observations.19On 4 March 2016, the Council adopted Decision (CFSP) 2016/318 amending Decision 2014/119 (OJ 2016 L 60, p. 76) and Implementing Regulation (EU) 2016/311 implementing Regulation No 208/2014 (OJ 2016 L 60, p. 1) (together, ‘the March 2016 acts’).20By the March 2016 acts, the application of the restrictive measures was extended to 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.21By letter of 7 March 2016, the Council informed the applicant that the restrictive measures against him were to be maintained and it then replied to the observations which the applicant had made in previous correspondence and sent him the March 2016 acts. Furthermore, it notified the applicant of the time limit for submitting observations prior to a decision being taken regarding the possible maintenance of his name on the list.22By judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497), the General Court annulled Decision 2014/119 and Regulation No 208/2014, in so far as they concerned the applicant, and dismissed the application for annulment, contained in the amendment to the originating application, concerning, first, Decision 2015/143 and Regulation 2015/138 and, second, the March 2015 acts.23On 23 November 2016, the applicant brought an appeal before the Court of Justice of the European Union, registered as Case C‑598/16, against the judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497).24By letter of 12 December 2016, the Council informed the applicant’s legal representatives that it was considering renewing the restrictive measures against him and enclosed two letters from the PGO, one dated 10 August 2016, the other dated 16 November 2016, reiterating the time limit for submitting observations in connection with the annual review of the restrictive measures. The applicant submitted such observations to the Council by letter of 11 January 2017.25On 3 March 2017, the Council adopted Decision (CFSP) 2017/381 amending Decision 2014/119 (OJ 2017 L 58, p. 34) and Implementing Regulation (EU) 2017/374 implementing Regulation No 208/2014 (OJ 2017 L 58, p. 1) (together, ‘the March 2017 acts’).26By the March 2017 acts, the application of the restrictive measures was extended to 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts and the March 2016 acts, was not amended.27By letter of 6 March 2017, the Council informed the applicant that the restrictive measures against him were to be maintained. It replied to the observations which the applicant had set out in previous correspondence and sent him the March 2017 acts. Furthermore, it notified the applicant of the time limit for submitting observations prior to a decision being taken regarding the possible maintenance of his name on the list. Procedure and forms of order sought 28By application lodged at the Court Registry on 13 May 2016, the applicant brought an action for annulment, registered as Case T‑244/16, against the March 2016 acts.29On 12 September 2016, the Council lodged the defence in Case T‑244/16. On 19 September 2016, in that same case, it submitted a reasoned application, under Article 66 of the Rules of Procedure of the General Court, for the content of certain documents annexed to the originating application and certain paragraphs of the defence not to be cited in the documents relating to the case to which the public has access.30Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was appointed to the Sixth Chamber, to which Case T‑244/16 was, consequently, assigned.31In Case T‑244/16, the reply and the rejoinder were lodged at the Court Registry on 28 October 2016 and 13 January 2017.32On 13 January 2017, the written part of the procedure in Case T‑244/16 was closed.33On 20 January 2017, the Council submitted a similar application to that referred to in paragraph 29 above for the content of certain documents annexed to the rejoinder in Case T‑244/16 not to be cited in the documents relating to that case to which the public has access.34By document lodged at the Court Registry on 3 February 2017, the applicant requested that a hearing be held in Case T‑244/16.35By letter lodged at the Court Registry on 1 March 2017, the applicant submitted, under Article 85(3) of the Rules of Procedure, new evidence to be added to the file in Case T‑244/16. By letter lodged at the Court Registry on 3 April 2017, the Council submitted its observations on that new evidence.36By application lodged at the Court Registry on 12 May 2017, the applicant brought an action for annulment, registered as Case T‑285/17, against the March 2017 acts.37By judgment of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), the Court of Justice dismissed the applicant’s appeal seeking to have the General Court’s judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497) set aside in part.38On 27 October 2017, the Court asked the parties to state their views, first, on the possible effect of the judgment of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), on Case T‑244/16 and Case T‑285/17 and, second, on the possible joinder of those cases for the purpose of the oral part of the procedure and the judgment.39The applicant and the Council lodged their reply to those measures of organisation of procedure on 9 and 10 November 2017, respectively. As regards the possible joinder of Cases T‑244/16 and T‑285/17, the applicant submits that it may only be warranted, if at all, for the purpose of the oral part of the procedure. The Council defers to the discretion of the Court.40On 9 November 2017, the Council lodged the defence in Case T‑285/17.41In the context of that case, on 20 November 2017, the Council submitted an application similar to that mentioned in paragraph 29 above for the content of certain documents annexed to the originating application and certain paragraphs of the defence not to be cited in the documents relating to that case to which the public has access.42On 24 November 2017, the Court decided that a second exchange of pleadings in Case T‑285/17 was not necessary. By letter of 6 December 2017, the applicant submitted a reasoned request, under Article 83(2) of the Rules of Procedure, asking the Court to authorise the parties to supplement the file in the case with a reply and a rejoinder. By decision of 19 December 2017, the Court granted that request and set a deadline for the lodging of the reply.43Accordingly, the reply and the rejoinder in Case T‑285/17 were lodged at the Court Registry on 22 January 2018 and 8 March 2018.44On 8 March 2018, the written part of the procedure in Case T‑285/17 was closed.45On 16 March 2018, the Council submitted an application similar to that referred to in paragraph 29 above for the content of certain documents annexed to the rejoinder in Case T‑285/17 not to be cited in the documents relating to that case to which the public has access.46By decision of the President of the Sixth Chamber of the General Court of 10 July 2018, Case T‑244/16, Yanukovych v Council, and Case T‑285/17, Yanukovych v Council, were joined for the purpose of the oral part of the procedure and of the decision which closes the proceedings, on the basis of Article 68 of the Rules of Procedure, the parties having been heard in that respect.47By letter lodged at the Court Registry on 28 September 2018, the applicant lodged observations on the report for the hearing.48The parties presented oral argument and replied to the questions put to them by the General Court at the hearing on 3 October 2018, which, at the request of the Council, after having heard the applicant, was conducted in part in camera.49At the hearing, the Council presented observations on the report for the hearing, formal note of which was made in the minutes of the hearing.50By judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice set aside the judgment of 7 July 2017, Azarov v Council (T‑215/15, EU:T:2017:479) and annulled the March 2015 acts, in so far as they concerned the applicant in the case giving rise to that judgment.51On account of the potential impact of the Court of Justice’s ruling in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), in the present cases, by order of 7 January 2019, the General Court (Sixth Chamber) decided to reopen the oral part of the procedure pursuant to Article 113(2)(b) of the Rules of Procedure in order to enable the parties to express their views in that regard.52Accordingly, on 10 January 2019, the General Court invited the parties, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, to submit their observations on the consequences to be drawn, in the present cases, from the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031). The parties complied with that request within the time allowed.53The applicant claims in Case T‑244/16 and in Case T‑285/17 that the Court should:–annul the March 2016 acts and the March 2017 acts (together, ‘the contested acts’), in so far as they concern him;order the Council to pay the costs.54Following the clarifications provided at the hearing in reply to questions from the Court, the Council claims that the Court should:dismiss the actions;order the applicant to pay the costs. Law Admissibility of the reference to other documents 55It must be noted that the applicant refers, in his pleadings relating to the application for annulment of the March 2016 acts, to the documents lodged before the General Court in the context of the case giving rise to the judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497) and, in his pleadings relating to the application for annulment of the March 2017 acts, to those documents as well as those lodged in the context of the application for annulment of the March 2016 acts, which he attaches as an annex.56As the Council rightly points out, it must be noted that, in order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself. It is settled case-law that, although the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents cannot compensate for the lack of essential elements which, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(1)(d) of the Rules of Procedure, must be included in the application itself (see, to that effect, judgments of 15 June 2017, Al-Faqih and Others v Commission, C‑19/16 P, EU:C:2017:466, paragraph 54 and the case-law cited, and of 18 January 2012, Djebel — SGPS v Commission, T‑422/07, not published, EU:T:2012:11, paragraph 42 and the case-law cited).57Consequently, the applicant’s general reference to the pleadings lodged either in earlier cases or Case T‑244/16, in the context of Case T‑285/17, must be regarded as inadmissible. Substance 58In support of his applications for annulment of the contested acts, the applicant relies on seven pleas in law, alleging: (i) lack of a legal basis; (ii) misuse of power; (iii) failure to state reasons; (iv) failure to fulfil the listing criteria; (v) manifest error of assessment; (vi) breach of the rights of the defence and of the right to effective judicial protection; and (vii) breach of the right to property.59It is appropriate to examine, first of all, the fourth plea in law, alleging failure to fulfil the criteria for the inclusion of the applicant’s name on the list.60In the context of the fourth plea, the applicant claims, in essence, that the reasons for the inclusion of his name on the list do not fulfil the criteria for applying restrictive measures set out in the contested acts.61In particular, the applicant claims that the issue of a notification of suspicion or the opening of a mere pre-trial investigation concerning him are not sufficient to consider that he is responsible for the alleged conduct. Since compliance of pre-trial investigations with procedural law is monitored by the PGO — which, according to the applicant, does not provide the required guarantees of independence and impartiality — the Council should also have carried out additional checks in that regard. Moreover, the applicant states that no progress has been made in the pre-trial investigations to which he is subject since the adoption of the restrictive measures at issue and he contests the Council’s claim that that lack of progress is the result of his own behaviour. Despite permission being given to open an investigation concerning the applicant in absentia in one of the criminal cases brought against him, no progress had been made and no evidence had been collected against him.62Indeed, the PGO’s letters on which the Council relied do not demonstrate either that the applicant falls within one of the categories of persons identified in the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93). Even on the assumption that, in the present case, the level of judicial involvement was sufficient, particularly as regards the seizures of the applicant’s property and the authorisation of preventive detention measures directed against him, such involvement cannot be regarded as reliable and adequate in terms of that case-law since the Ukrainian judicial system does not provide the required guarantees of independence and impartiality, even in the light of the case-law of the European Court of Human Rights (‘ECtHR’).63According to the applicant, the fact that the Council is not in a position to assess the applicant’s guilt or innocence or whether the investigations concerning him are well founded does not relieve it of its obligation to respect the rights and observe the principles guaranteed under the Charter of Fundamental Rights of the European Union in the exercise of its powers and, consequently, to verify whether and the extent to which his fundamental rights were protected in Ukraine.64Compliance by the Council with the obligation to undertake a full and rigorous review and to ensure that any decision imposing a restrictive measure is taken on a sufficiently solid factual basis is all the more crucial in the present case in the light of (i) the fact that Ukraine is not a Member State of the European Union; (ii) the political motivation of the allegations made against the applicant; (iii) the absence of any meaningful progress in the criminal proceedings on which the applicant’s listing is based; (iv) the absence of any balanced or fair procedure prior to drawing up charges in Ukraine; and (v) the period of time that the Council has had to verify the evidence and information justifying the applicant’s re-listing.65In response to a written question of the General Court (see paragraph 52 above), the applicant states that the Court of Justice’s reasoning and conclusion in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) are of significant importance in the present case since the circumstances which triggered the Council’s verification obligation in the case giving rise to that judgment are, in essence, identical to those leading to the adoption of the contested acts. Thus, first, the applicant complains that the Council did not verify, by considering that it was not under an obligation to do so, whether the decision of the Ukrainian authorities, on which it intended to rely in order to maintain the applicant’s name on the list, had been adopted in accordance with the applicant’s rights of defence and his right to effective judicial protection. Second, it criticises the Council for failing to indicate, in the statement of reasons justifying the maintenance of his name on the list, the reasons why the Council considered that that decision of the Ukrainian authorities had been adopted in accordance with those rights. Moreover, the Council’s letters of 7 March 2016 and 6 March 2017, notifying the applicant of the renewal of the restrictive measures against him, fail to mention such reasons.66The Council contends that the decision to list, and subsequently maintain the applicant’s name on the list, on the basis of the information contained in the PGO’s letters, fulfils the listing criteria and is founded on a sufficiently solid basis making it possible to establish that the applicant is the subject of criminal proceedings for misappropriation of public funds.67As regards the claim that the PGO does not bear the required judicial hallmarks of independence and impartiality, the Council contends that the pre-trial investigation, which is conducted by the PGO under the oversight of the judicial authority, is a stage in the criminal proceedings. Furthermore, the purpose of the restrictive measures would not be achieved if it were not possible to adopt such measures directed against persons subject to a pre-trial investigation for involvement in offences, such as the investigations to which the applicant is subject.68In reply to the claim that the Council cannot legitimately rely on criminal proceedings without having first verified the extent to which the applicant’s fundamental rights had been protected in Ukraine, the Council argues, first, that the applicant has not demonstrated that his rights were actually infringed. Second, it is not apparent from the case-law that the Council is required to verify compliance with the right to effective judicial protection by the third State whose judicial authority issued the attestations which the Council relies on in order to adopt restrictive measures, such as those at issue. Third, the applicant is still entitled to defend himself in the criminal proceedings against him and in the proceedings before the ECtHR, which does not prevent the Council, pending the outcome of those proceedings, from relying on the existence of the ongoing proceedings when deciding to impose restrictive measures.69Finally, as regards the applicant’s claim based on the absence of any meaningful progress in the criminal proceedings against him, the Council contends that what matters is that the proceedings are pending at the time of the adoption of the contested acts and that the lack of progress is, furthermore, attributable to the applicant, who evaded justice.70More generally, the Council recalls that, according to the case-law, it is not obliged to carry out systematically its own investigations or verifications in order to obtain further clarifications when it relies on information provided by the authorities of a third State to take restrictive measures against nationals of that state who are the subject of judicial proceedings in that state. Such verifications are necessary only where the information received is insufficient or inconsistent. In the present case, the Council contends that it did indeed verify whether the decision to freeze funds affecting the applicant was well founded in the light of the criminal proceedings in Ukraine for misappropriation of funds.71In response to a written question of the Court (see paragraph 52 above), the Council contends that, even though it has not given any indication to that effect in the statement of reasons, it was aware that there had been judicial oversight in Ukraine during the criminal investigations concerning the applicant. It is apparent from the PGO’s letters referred to in paragraphs 17, 18 and 24 above that several judicial decisions concerning the applicant were adopted in Ukraine, such as the seizures of his property ordered by the Petschersk District Court (Kiev) and an order from the Kiev Court of Appeal to place the applicant in custody as a preventive measure. The fact that the rights of the defence and the right to effective judicial protection were complied with, as well as actually exercised by the applicant, is, moreover, demonstrated by the decision of the Petschersk District Court of 27 July 2015, according to which the investigating judge decided, in the context of one of the criminal proceedings against the applicant, in open court and in the presence of his lawyers, to grant the application of the prosecution to give permission to the prosecutor to conduct a special pre-trial investigation in absentia. The same is true as regards the decision of that court, dated 22 April 2016, to uphold in part the complaint submitted by the applicant’s defence lawyer in the light of the PGO’s alleged failure to take into account an application for a procedural measure to be taken in those proceedings.72According to the Council, those examples show that, when it relied on the decisions of the Ukrainian authorities referred to in the PGO’s letters, it was able to verify that such decisions had been taken in accordance with the applicant’s rights of defence and his right to effective judicial protection.73It is apparent from settled case-law that, in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, in particular, respect for the rights of the defence and the right to effective judicial protection (see judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 20 and 21 and the case-law cited).74The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22 and the case-law cited).75The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that state, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 25).76In addition, whereas, under the listing criterion, such as that referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation, on that institution, to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were complied with by the authorities of the third State which adopted that decision (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 26, 27 and 35).77In that regard, the Court of Justice states that the requirement for the Council to verify that the decisions of third States, on which it intends to rely, have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of the measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 28 and 34 and the case-law cited).78Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the ECtHR, of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 77 above (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 36).79The Court of Justice also held that the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of the restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 29 and 30 and the case-law cited).80Ultimately, when it bases the adoption or the maintenance of restrictive measures, such as those in the present case, on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of the defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, second, refer to, in the decision imposing restrictive measures, the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights.81It is in the light of those case-law principles that it is necessary to examine whether the Council complied with those obligations.82In the first place, it must be noted that the applicant is subject to new restrictive measures adopted by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as clarified in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as clarified in Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion provides for the freezing of funds of persons who have been identified as responsible for the misappropriation of public funds, including persons subject to investigation by the Ukrainian authorities.83It is common ground that the Council, in order to decide to maintain the applicant’s name on the list, relied on the fact that he was subject to ‘criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets’, which was evidenced by the PGO’s letters of 3 September and 30 November 2015, as regards the March 2016 acts, and by the PGO’s letters of 10 August and 16 November 2016, as regards the March 2017 acts.84The maintenance of the restrictive measures taken against the applicant was therefore based, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), on the PGO’s decision to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds.85In the first place, the fact remains that the statement of reasons for the contested acts relating to the applicant (see paragraphs 15, 20 and 26 above) does not include a single reference to the fact that the Council verified compliance, by the Ukrainian judicial authorities, with the applicant’s rights of defence and his right to effective judicial protection and that, therefore, such a failure to refer to those reasons amounts to an early indication that the Council did not carry out such a verification.86In the second place, it must be noted that none of the information contained in the almost identical letters of 7 March 2016 (see paragraph 21 above), as regards Case T‑244/16, and of 6 March 2017 (see paragraph 27 above), as regards Case T‑285/17, makes it possible to consider that the Council had information relating to compliance with the rights at issue by the Ukrainian authorities so far as concerns the criminal proceedings against the applicant and, even less so, that the Council had assessed such information, in order to verify that those rights had been sufficiently complied with by the Ukrainian judicial authorities at the time of the adoption of the decision to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of public funds or assets committed by the applicant. In those letters, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031, paragraph 24), the Council merely stated that the PGO’s letters, supplied to the applicant beforehand (see paragraphs 18 and 24 above) showed that the applicant continued to be subject to criminal proceedings for misappropriation of public funds or assets. Furthermore, the fact that Ukraine is one of the States that has acceded to the ECHR, expressly mentioned by the Council in its letters and in its pleadings, does not render verification of compliance with the applicant’s rights of defence and his right to effective judicial protection superfluous (see paragraph 78 above).87In the third place, it must be observed that, contrary to its claims, the Council was under an obligation to carry out that verification irrespective of any evidence adduced by the applicant to show that, in the present case, his personal situation had been affected by the problems which he pointed out relating to the functioning of the judicial system in Ukraine. In any event, although the applicant had claimed on numerous occasions, by adducing specific evidence, that the Ukrainian judicial authorities had infringed his rights of defence and his right to effective judicial protection and that the situation in Ukraine was generally incompatible with the existence of sufficient guarantees in that regard, the Council did not show that it had verified compliance with such rights. On the contrary, it repeatedly stated in its pleadings that it was not under any obligation to do so and that such obligation did not stem either from the case-law principles laid down in the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), relied on by the applicant.88In the fourth place, in the reply to the question relating to the impact of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), on the present cases, the Council put forward only the arguments summarised in paragraph 71 above.89In that regard, first, it must be noted that the Council accepts that the statement of reasons for the contested acts does not cover the issue of compliance with the rights of the defence and the right to effective judicial protection in the light of the decision to initiate and conduct the criminal proceedings justifying the inclusion and maintenance of the applicant’s name on the list.90Second, it must be noted that the Council claims that it is clear from the files before the Court in the present cases that the conduct of the criminal investigations had been subject to judicial oversight in Ukraine. More specifically, according to the Council, the existence of several judicial decisions adopted in the context of the criminal proceedings against the applicant shows that, when it relied on the decision of the Ukrainian authorities referred in the PGO’s letters, (i) it was able to verify that that decision had been taken in accordance with the rights of the defence and the right to effective judicial protection and (ii) it checked that a certain number of judicial decisions in the context of those criminal proceedings had been taken in accordance with those rights.91All the judicial decisions mentioned by the Council fall within the scope of the criminal proceedings which justified the inclusion and maintenance of the applicant’s name on the list and are merely incidental in the light of those proceedings, since they are either restrictive or procedural in nature. It is true that those decisions are capable of supporting the Council’s argument concerning the existence of a sufficiently solid factual basis, namely the fact that, in accordance with the listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets. However, such decisions are not ontologically capable, alone, of demonstrating, as the Council maintains, that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection.92In any event, the Council is not in a position to refer to any document in the file of the procedure which resulted in the adoption of the contested acts showing that it examined the decisions of the Ukrainian courts on which it relies now and from which it was able to conclude that the essence of the applicant’s rights of defence and his right to effective judicial protection had been complied with.93It cannot therefore be found that the information available to the Council at the time of the adoption of the contested acts enabled it to verify that the decision of the Ukrainian judicial authorities had been taken in accordance with those rights as they apply to the applicant.94Furthermore, in that regard, it must also be noted, as the Court of Justice made clear in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), that the case-law of the Court of Justice — according to which, in particular, in the event of the adoption of a decision to freeze funds such as that adopted in respect of the applicant, it is not for the Council or General Court to verify whether or not the investigations to which the person concerned by those measures was subject were well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based (see, to that effect, judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77; of 19 October 2017, Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69; and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 72) — cannot be interpreted as meaning that the Council is not required to verify that the decision of the third State on which it intends to base the adoption of restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40 and the case-law cited).95In the light of the foregoing, it has not been established that the Council, prior to the adoption of the contested acts, verified that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection.96In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant or the requests for confidential treatment submitted by the Council. Costs 97Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.On those grounds,THE GENERAL COURT (Sixth Chamber)hereby: 1. Annuls Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as well as Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Viktor Fedorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures; 2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Yanukovych. BerardisSpielmannCsehiDelivered in open court in Luxembourg on 11 July 2019.E. CoulonRegistrarG. BerardisPresident( *1 ) Language of the case: English. | 3fdf2-bce0ef8-46b6 | EN |
Passengers who have the right to hold their tour organiser liable for reimbursement of the cost of their air tickets cannot also claim reimbursement of the cost of those tickets from the air carrier | 10 July 2019 ( *1 )(Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Flight cancellation — Assistance — Right to reimbursement of the cost of the air ticket by the air carrier — Article 8(2) — Package tour — Directive 90/314/EEC — Insolvency of the tour organiser)In Case C‑163/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Rechtbank Noord-Nederland (District Court, Noord-Nederland, Netherlands), made by decision of 21 February 2018, received at the Court on 1 March 2018, in the proceedings HQ, IP, legally represented by HQ, JO v Aegean Airlines SA, THE COURT (Third Chamber),composed of A. Prechal, President of Chamber, F. Biltgen, J. Malenovský (Rapporteur), C.G. Fernlund and L.S. Rossi, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: M. Ferreira, principal administrator,having regard to the written procedure and further to the hearing on 16 January 2019,after considering the observations submitted on behalf of:–HQ, IP, legally represented by HQ, and JO, by I. Maertzdorff, advocaat, and by M. Duinkerke and M.J.R. Hannink,Aegean Airlines SA, by J. Croon and D. van Genderen, advocaten,the Czech Government, by M. Smolek and J. Vláčil and by A. Kasalická, acting as Agents,the German Government, initially by T. Henze, and subsequently by M. Hellmann and A. Berg, acting as Agents,the European Commission, by A. Nijenhuis and by C. Valero and N. Yerrell, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 March 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 8(2) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), in the light of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).2The request has been made in proceedings between HQ, IP, represented legally by HQ, and JO (‘HQ and Others’) and the airline Aegean Airlines SA concerning reimbursement of the cost of air tickets sought by HQ and Others following the annulment of a flight forming part of a package tour. Legal context EU law Regulation No 261/2004 3Recitals 1, 2 and 16 of Regulation No 261/2004 state:‘(1)Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.(2)Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.…(16)In cases where a package tour is cancelled for reasons other than the flight being cancelled, this Regulation should not apply.’4Article 1 of that regulation, entitled ‘Subject’, provides in paragraph 1:‘This Regulation establishes, under the conditions specified herein, minimum rights for passengers when:(a)they are denied boarding against their will;(b)their flight is cancelled;(c)their flight is delayed.’5Article 3 of that regulation, entitled ‘Scope’, provides in paragraph 6:‘This Regulation shall not affect the rights of passengers under Directive 90/314/EEC. This Regulation shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight.’6Article 5 of Regulation No 261/2004, entitled ‘Cancellation’, provides in paragraph 1:‘In case of cancellation of a flight, the passengers concerned shall:be offered assistance by the operating air carrier in accordance with Article 8; andbe offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); andhave the right to compensation by the operating air carrier in accordance with Article 7, unless:(i)they are informed of the cancellation at least two weeks before the scheduled time of departure; or(ii)they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or(iii)they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.’7Article 8 of Regulation No 261/2004, entitled ‘Right to reimbursement or re-routing’, states in paragraphs 1 and 2:‘1. Where reference is made to this Article, passengers shall be offered the choice between:reimbursement within seven days … of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant,a return flight to the first point of departure, at the earliest opportunity;re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; orre-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC.’ Directive 90/314 8The 21st recital of Directive 90/314 states:‘Whereas both the consumer and the package travel industry would benefit if organisers and/or retailers were placed under an obligation to provide sufficient evidence of security in the event of insolvency’.9Article 1 of that directive provides:‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the Community.’10Article 4(6) of Directive 90/314 provides:‘If the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault of the consumer, the organiser cancels the package before the agreed date of departure, the consumer shall be entitled:either to take a substitute package of equivalent or higher quality where the organiser and/or retailer is able to offer him such a substitute. If the replacement package offered is of lower quality, the organiser shall refund the difference in price to the consumer;or to be repaid as soon as possible all sums paid by him under the contract.…’11Under Article 5(1) of that directive:‘Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services.’12Article 7 of Directive 90/314 provides:‘The organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency.’ Netherlands law 13At the time of the facts in the main proceedings, Directive 90/314 was implemented in Netherlands law in Title 7A, entitled ‘Travel contract’, of Book 7 of the Burgerlijk Wetboek (Civil Code).14Article 7:504(3) of the Civil Code allows a passenger, in the event of termination of the travel contract by the tour organiser, to request from that organiser, inter alia, reimbursement of the cost of the air tickets.15Article 7:512(1) of the Civil Code lays down an obligation for a tour organiser to take the necessary measures in advance to ensure that, if it can no longer meet its obligations towards a traveller due to insolvency, its obligations are assumed by someone else or the fare is reimbursed. The dispute in the main proceedings and the questions referred for a preliminary ruling 16Aegean Airlines, a company established in Greece, entered into a charter contract with G. S. Charter Aviation Services Ltd (‘G.S. Charter’), a company established in Cyprus, under which Aegean Airlines was to make available to G.S. Charter a certain number of seats, in return for payment of the charter price. G.S. Charter subsequently resold the seats to third parties, including to Hellas Travel BV (‘Hellas’), a tour organiser established in the Netherlands.17G.S. Charter and Hellas concluded an agreement whereby, from 1 May to 24 September 2015, a return flight between Eelde (Netherlands) and Corfu (Greece) was to be operated every Friday, a deposit was to be paid to Aegean Airlines and the payment for the scheduled return flight on the following Friday was to be made every Monday.18On 19 March 2015, HQ and Others booked return flights between Eelde and Corfu through Hellas. Those flights formed part of a ‘package tour’, for the purposes of Directive 90/314, the price of which was paid to Hellas.19HQ and Others received electronic tickets bearing the logo of Aegean Airlines for those flights, scheduled for 17 and 24 July 2015, as well as documents referring to Hellas as the charterer.20As is apparent from the order for reference, a few days before the agreed departure date Hellas sent HQ and Others a letter and an email informing them that, because of both the slump in the level of bookings and cancellations of existing bookings, arising from ‘uncertainties surrounding the situation in Greece’ at that time, it was forced to cancel the flights agreed with Aegean Airlines since the latter had decided, as Hellas was no longer able to pay the agreed price to it, to no longer operate flights to and from Corfu as from 17 July 2015. Accordingly, Hellas informed HQ and Others that their package tour had been cancelled.21Hellas was declared insolvent on 3 August 2016. It did not reimburse to HQ and Others the cost of their air tickets.22HQ and Others brought proceedings before the Rechtbank Noord-Nederland (District Court, Noord-Nederland) requesting that Aegean Airlines be ordered to pay them compensation for the cancellation of the flight of 17 July 2015 and to reimburse to them the cost of the related tickets, pursuant, respectively, first, to Article 5(1)(c) of Regulation No 261/2004 and, secondly, to Article 8(1)(a) of that regulation.23Aegean Airlines alleged, primarily, that Regulation No 261/2004 was not applicable, in particular in the light of Article 3(6) thereof.24However, by interim decision of 14 November 2017, the Rechtbank Noord-Nederland (District Court, Noord-Nederland) rejected that defence plea on the ground that the applicability of Regulation No 261/2004 to passengers with a package tour is excluded under that provision only if the cancellation is independent of the willingness of the air carrier to operate the flight or flights forming part of that package tour, whereas this was not the case here. That court held, on the one hand, that the decision to cancel the flight was taken by Aegean Airlines, which was clearly prepared to operate the flight only if Hellas paid to it in advance the fixed fare for the flight, and, on the other hand, that it was neither pleaded nor demonstrated that Hellas had announced the cancellation of the package tour for reasons other than that decision by Aegean Airlines.25Accordingly, pursuant to Regulation No 261/2004, HQ and Others were awarded flat-rate compensation from Aegean Airlines on account of the cancellation of the flight in question. However, the Netherlands court did not rule on the request for reimbursement of the cost of the air tickets.26In that regard, Aegean Airlines argued, in the alternative, that, in so far as a package tour was at issue here, it resulted from Article 8(2) of Regulation No 261/2004 that it was not required to reimburse to HQ and Others the amount which they had paid to Hellas for the purchase of their air tickets.27In those circumstances, the Rechtbank Noord-Nederland (District Court, Noord-Nederland, Netherlands), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘1.Must Article 8(2) of Regulation No 261/2004 be interpreted as meaning that a passenger who, under Directive 90/[314]/EEC on package travel (as implemented in national law), has the right to hold his tour organiser liable for reimbursement of the cost of his ticket, can no longer claim reimbursement from the air carrier?2.If the answer to Question 1 is in the affirmative, can a passenger nevertheless hold the air carrier liable for reimbursement of the cost of his ticket if it is to be assumed that his tour organiser, if it were to be held liable, would be financially incapable of actually reimbursing the cost of the ticket and that tour organiser has also not taken any safeguard measures to guarantee reimbursement?’ Consideration of the questions referred 28By its two questions, which it is appropriate to examine jointly, the referring court seeks to ascertain, in essence, whether Article 8(2) of Regulation No 261/2004 must be interpreted as meaning that a passenger who, under Directive 90/314, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can no longer claim reimbursement of the cost of that ticket from the air carrier, on the basis of that regulation, even where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee such reimbursement.29As regards the question whether passengers who have the right to hold their tour organiser liable for reimbursement of the cost of their air tickets are also entitled to seek reimbursement of the cost of their tickets from the air carrier, the Court notes, first, that, in accordance with Article 8(1)(a) of Regulation No 261/2004, read in conjunction with Article 5(1)(a) of that regulation, the onus is on the air carrier, in the event of cancellation of a flight, to offer assistance to the passengers concerned in the form of offering them, inter alia, reimbursement of their ticket (see judgment of 12 September 2018, Harms, C‑601/17, EU:C:2018:702, paragraph 12).30Second, Article 8(2) of that regulation states that the right to reimbursement of the cost of the ticket also applies to passengers whose flights form part of a package tour, except where such a right arises under Directive 90/314.31It is also apparent from the clear wording of Article 8(2) that the mere existence of a right to reimbursement, arising under Directive 90/314, is sufficient to rule out the possibility for a passenger, whose flight forms part of a package tour, to be able to claim reimbursement of the cost of his ticket, pursuant to Regulation No 261/2004, from the operating air carrier.32That interpretation is corroborated by the travaux préparatoires of Regulation No 261/2004. As stated by the Advocate General in points 43 and 44 of his Opinion, it is clear from those travaux préparatoires that, while the Union legislature did not intend to exclude entirely from the scope of the regulation passengers whose flight forms part of a package tour, it did, however, seek to maintain in their regard the effects of the adequate protection scheme which had previously been put in place by Directive 90/314.33As is apparent, in that regard, from Article 3(6) of Regulation No 261/2004, that regulation does not affect the rights under Directive 90/314 of passengers who have purchased a package tour.34Article 8(2) of Regulation No 261/2004 thus implies that the right to reimbursement of the cost of the ticket, pursuant to that regulation and Directive 90/314 respectively, are not cumulative. If they were, furthermore, and as pointed out by the Advocate General in point 64 of his Opinion, the passengers concerned would receive unjustified overcompensation, which would be to the detriment of the operating air carrier, which, in that case, would risk having to assume part of the liability of the tour organiser towards its clients in accordance with the contract which it has entered into with them.35It is apparent from the foregoing considerations that passengers who are entitled, under Directive 90/314, to seek reimbursement of their air tickets from their tour organiser are not able to seek reimbursement from the air carrier on the basis on Regulation No 261/2004.36That conclusion remains unchanged also where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee that reimbursement.37In the light of the clear wording of Article 8(2) of Regulation No 261/2004, it is, in fact, not relevant to ascertain whether the tour organiser is financially capable of reimbursing the cost of the ticket, whether it has taken measures or not to guarantee that reimbursement, or even whether those circumstances put at risk the execution of its obligation to reimburse the passengers concerned.38Such an interpretation of Article 8(2) of Regulation No 261/2004 is not called into question by the main objective pursued by that regulation, set out in recital 1 thereof, namely to ensure a high level of protection for passengers.39As is apparent from paragraph 32 above, the Union legislature took account precisely of the adequate protection scheme which had previously been put in place by Directive 90/314.40More specifically, Article 7 of that directive, read in the light of the 21st recital thereof, provides, inter alia, that tour organisers must provide sufficient evidence of security for the refund of money paid over in the event of insolvency.41The Court has held that Article 7 of Directive 90/314 imposes an obligation of result, namely to guarantee package travelers the refund of money paid over in the event of the travel organiser’s bankruptcy, and that that guarantee is specifically aimed at arming consumers against the consequences of the bankruptcy, whatever the causes of it may be (see, to that effect, judgment of 15 June 1999, Rechberger and Others, C‑140/97, EU:C:1999:306, paragraph 74, and order of 16 January 2014, Baradics and Others, C‑430/13, EU:C:2014:32, paragraph 35).42The Court has also considered that national legislation properly transposes the obligations under Article 7 of the directive only if, whatever the detailed rules laid down in that legislation may be, it achieves the result of providing the consumer with an effective guarantee of the refund of all money paid over in the event of the travel organiser’s insolvency (see, to that effect, judgment of 15 June 1999, Rechberger and Others, C‑140/97, EU:C:1999:306, paragraph 64, and order of 16 January 2014, Baradics and Others, C‑430/13, EU:C:2014:32, paragraph 38).43Failing that, as is apparent from settled case-law of the Court, the traveller concerned is entitled, in any event, to bring an action for damages against the Member Sate concerned for the loss incurred by him as a result of an infringement of EU law (see, to that effect, judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraphs 45 to 48 and the case‑law cited).44In the light of all of the foregoing considerations, the answer to the questions referred is that Article 8(2) of Regulation No 261/2004 must be interpreted as meaning that a passenger who, under Directive 90/314, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can no longer claim reimbursement of the cost of that ticket from the air carrier, on the basis of that regulation, even where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee such reimbursement. Costs 45Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Article 8(2) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a passenger who, under Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can no longer claim reimbursement of the cost of that ticket from the air carrier, on the basis of that regulation, even where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee such reimbursement. [Signatures]( *1 ) Language of the case: Dutch. | 66ed2-be4969b-4e22 | EN |
An e-commerce platform such as Amazon is not obliged in all cases to make a telephone number available to consumers before the conclusion of a contract | 10 July 2019 ( *1 )(Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(c) — Information requirements for distance and off‑premises contracts — Obligation, for a trader, to indicate its telephone number and its fax number ‘where they are available’ — Scope)In Case C‑649/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 5 October 2017, received at the Court on 21 November 2017, in the proceedings Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl, THE COURT (First Chamber),composed of J.-C. Bonichot, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the First Chamber, C. Toader, L. Bay Larsen and M. Safjan (Rapporteur), Judges,Advocate General: G. Pitruzzella,Registrar: R. Şereş, administratrice,having regard to the written procedure and further to the hearing on 22 November 2018,after considering the observations submitted on behalf of:–the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV, by J. Kummer and P. Wassermann, Rechtsanwälte,Amazon EU Sàrl, by C. Rohnke, Rechtsanwalt,the German Government, initially by T. Henze and M. Hellmann, and subsequently by M. Hellmann and U. Bartl, acting as Agents,the French Government, by J. Traband and A.-L. Desjonquères, acting as Agents,the European Commission, by C. Hödlmayr and N. Ruiz García and by C. Valero, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 6(1)(c) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).2The request has been made in the context of proceedings between the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV (Federal Union of Consumer Organisations and Associations, Germany) (‘the Federal Union’) and Amazon EU Sàrl concerning an application for an injunction brought by the Federal Union, relating to Amazon EU practices for the display of information allowing consumers to contact that company. Legal context European Union law 3Recitals 4, 5, 7, 12, 21 and 34 of Directive 2011/83 state:‘(4)… The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises …(5)… The full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market.…(7)Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union.(12)The information requirements provided for in this Directive should complete the information requirements of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [(OJ 2006 L 376, p. 36)] and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) [(OJ 2000 L 178, p. 1)]. Member States should retain the possibility to impose additional information requirements applicable to service providers established in their territory.(21)… In an off-premises context, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. …(34)The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance or off-premises contract, a contract other than a distance or an off-premises contract, or any corresponding offer. In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.’4According to Article 1 of Directive 2011/83, entitled ‘Subject matter’:‘The purpose of this Directive is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders.’5Article 2 of that directive, entitled ‘Definitions’, provides:‘For the purpose of this Directive, the following definitions shall apply:“distance contract” means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;(8)“off-premises contract” means any contract between the trader and the consumer:(a)concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;(b)for which an offer was made by the consumer in the same circumstances as referred to in point (a);(c)concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or(d)concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;…’6Article 4 of that directive, entitled ‘Level of harmonisation’, provides:‘Member States may decide not to apply this Directive or not to maintain or introduce corresponding national provisions to off-premises contracts for which the payment to be made by the consumer does not exceed EUR 50. Member States may define a lower value in their national legislation.’7Chapter II of Directive 2011/83, entitled ‘Consumer information for contracts other than distance or off-premises contracts’, contains Article 5 thereof.8Under Article 5, entitled ‘Information requirements for contracts other than distance or off-premises contracts’:‘1. Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number;4. Member States may adopt or maintain additional pre-contractual information requirements for contracts to which this Article applies.’9Chapter III of Directive 2011/83, entitled ‘Consumer information and right of withdrawal for distance and off-premises contracts’, contains Articles 6 to 16 thereof.10Article 6 of that directive, entitled ‘Information requirements for distance and off-premises contracts’, provides:‘1. Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the trader on whose behalf he is acting;4. The information referred to in points (h), (i) and (j) of paragraph 1 may be provided by means of the model instructions on withdrawal set out in Annex I(A). The trader shall have fulfilled the information requirements laid down in points (h), (i) and (j) of paragraph 1 if he has supplied these instructions to the consumer, correctly filled in.5. The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract and shall not be altered unless the contracting parties expressly agree otherwise.8. The information requirements laid down in this Directive are in addition to information requirements contained in [Directive 2006/123] and [Directive 2000/31] and do not prevent Member States from imposing additional information requirements in accordance with those Directives.Without prejudice to the first subparagraph, if a provision of [Directive 2006/123] or [Directive 2000/31] on the content and the manner in which the information is to be provided conflicts with a provision of this Directive, the provision of this Directive shall prevail.11Article 21 of Directive 2011/83, entitled ‘Communication by telephone’, provides, in paragraph 1 thereof:‘Member States shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate.’12Annex I to that directive, entitled ‘Information concerning the exercise of the right of withdrawal’, includes a part A, entitled ‘Model instructions on withdrawal’ and a part B, entitled ‘Model withdrawal form’.13Part A of that annex provides in particular the instructions which must be followed by traders in order to communicate to consumers standard information relating to its right of withdrawal and, more particularly, the following instruction:‘Insert your name, geographical address and, where available, your telephone number, fax number and e-mail address.’14Part B of that annex contains an entry worded as follows:‘To [here the trader’s name, geographical address and, where available, his fax number and e-mail address are to be inserted by the trader].’ German law 15Paragraph 312d(1) of the Bürgerliches Gesetzbuch (German Civil Code), entitled ‘Information requirements’, provides:‘Under off-premises and distance contracts, traders shall be required to provide information to consumers in accordance with the provisions of Paragraph 246a of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Law to the Civil Code) (‘the EGBGB’). The information provided by traders in fulfilment of that obligation constitutes an integral part of the contract, except where otherwise expressly agreed by the parties.’16Article 246a of the EGBGB, entitled ‘Information requirements for off-premises contracts and distance contracts, with the exception of contracts relating to financial services’, provides, in point 2 of the first sentence of paragraph 1(1) thereof:‘The trader shall, pursuant to Paragraph 312d(1) of the [Civil Code], provide the consumer with the following information:2.his identity, such as his trading name, the geographical address at which he is established and his telephone number and, where available, his fax number and email address and, where applicable, the geographical address and identity of the trader on whose behalf he is acting.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 17Amazon EU operates in particular the website www.amazon.de, offering the online sale of various products.18By making an order on that website, consumers had the possibility, in August 2014, before completing their order, to click on an electronic link marked ‘Contact us’. Consumers thus reached a web page where, under the heading ‘Contact us’, was a link ‘How would you like to contact us?’, they had the choice between three options: namely, to send an email, to make contact by telephone or to start an online conversation by way of chat. By contrast, that page did not provide a fax number. If the consumer chose the option of making contact by telephone, another web page opened, on which he had the possibility to provide his telephone number and to be called back. The same page also contained the information: ‘If you prefer, you can also call our general helpline’. The link ‘general helpline’ opened a window showing Amazon EU’s telephone numbers and containing the following text:‘General helplinePlease note: We instead recommend using the function “Call me now” to obtain assistance quickly. Based on the information you have already provided, we will be able to help you straightaway.Should you prefer to call the general helpline, please bear in mind that you will have to answer a series of questions to confirm your identity.Should you wish to contact us via conventional means, you can also reach us at the following telephone numbers: …’19Under the heading ‘Imprint’, included on the www.amazon.de website, consumers could also reach the page with the option to have someone call them back by clicking on the ‘Contact us’ icon.20The Federal Union considered that Amazon EU did not respect its legal obligation to provide consumers with effective means to enter into contact with it, in so far as it did not inform consumers to the requisite legal standard of its telephone and fax numbers. Moreover, the Federal Union considered that Amazon EU did not indicate a telephone number in a clear and comprehensible manner and that the callback service did not fulfil the information requirements, since consumers have to undertake a number of steps to make contact with that company.21The Federal Union brought an application for an injunction before the Landgericht Köln (Regional Court, Cologne, Germany) relating to Amazon EU practices for the display of information on its website.22Since that court dismissed that application for an injunction by a judgment of 13 October 2015, the Federal Union lodged an appeal against that decision before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany).23By judgment of 8 July 2016, the Oberlandesgericht Köln (Higher Regional Court, Cologne) dismissed the appeal brought by the Federal Union. To that end, that court considered that Amazon EU fulfilled the pre-contractual information requirements by offering consumers sufficient possibilities for communication, as a result of its callback system and the possibility to contact it by chat or by email.24In those circumstances, the Federal Union brought an appeal on a point of law (Revision) before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany).25The referring court considers that, in order to resolve the dispute before it, it is necessary inter alia to specify the scope of the expression ‘lorsqu’ils sont disponibles’, ‘gegebenfalls’ or ‘where available’, included in Article 6(1)(c) of Directive 2011/83, respectively in the French, German and English versions of that provision.26In that regard, it is apparent from a European Commission guidance document, published in June 2014, concerning Directive 2011/83, that that expression applies to the three means of distance communication referred to in Article 6(1)(c) of that directive, namely the telephone, fax and email.27Therefore, according to the referring court, the information which traders must provide is that in relation only to means of communication already existing within their undertaking. By contrast, they are not required to establish a new telephone or fax line, or to create a new email address, where they decide also to conclude distance contracts.28In that context, the question is raised whether traders who, while having means of communication such as the telephone, fax and an email address, use them however only for communication with other traders or the authorities, are required, under Article 6(1)(c) of Directive 2011/83, to provide information about those communication methods when entering into distance contracts with consumers.29If that is so, traders who begin a new activity consisting in concluding distance contracts with consumers would be required to change their business organisation and to employ new employees, which would be likely to undermine their freedom to conduct a business, enshrined in Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).30Moreover, such an interpretation would conflict with the objective of Directive 2011/83, stated in recital 4 thereof, which consists in striking the right balance between a high level of consumer protection and the competitiveness of enterprises.31In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)May Member States enact a provision that — like the provision in Article 246a(1)(1), first sentence, No 2, of the EGBGB (Introductory Law to the Civil Code) — obliges a trader to make his telephone number available to the consumer (not just where available but) always when entering into distance contracts prior to acceptance of the contract?(2)Does the expression “gegebenenfalls” (meaning “where available”) used in the German language-version of Article 6(1)(c) of Directive 2011/83 mean that traders must, if they decide to enter into distance contracts, provide information solely about the means of communication that are already actually available within their business, and that they are therefore not required to set up a new telephone or fax connection or email account?(3)If the second question is answered in the affirmative:Does the expression “gegebenenfalls” (meaning “where available”) used in the German language-version of Article 6(1)(c) of Directive 2011/83 refer solely to the means of communication that are already available in the business and are actually used by the trader for communication with consumers when entering into distance contracts, or does it also refer to means of communication that are available in the business but have hitherto been used by the trader exclusively for other purposes, such as to communicate with other traders or authorities?(4)Is the list of means of communication (telephone, fax and email) set out in Article 6(1)(c) of [that] directive …, [namely the] telephone, fax and [the] email address, exhaustive, or may traders also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that they ensure rapid contact and efficient communication?Does the application of the transparency requirement of Article 6(1) of [that] directive …, according to which the trader must inform the consumer of the communication methods set out in Article 6(1)(c) of Directive 2011/83 in a clear and comprehensible manner, depend on the information being supplied quickly and efficiently?’ Consideration of the questions referred 32By its questions, which should be examined together, the referring court asks, in essence, whether Article 6(1)(c) of Directive 2011/83 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires traders, before concluding distance and off-premises contracts with consumers covered by Article 2(7) and (8) of that directive, to provide, in all circumstances, their telephone number, and whether that provision obliges traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them. The referring court also wishes to know whether those traders may, in circumstances such as those in the main proceedings, make use of means of communication which are not mentioned in that provision, such as instant messaging or a telephone callback system.33First of all, it should be noted that, according to Article 6(1)(c) of Directive 2011/83, before the consumer is bound by a distance or off-premises contract or any corresponding offer, the trader is to provide him, in a clear and comprehensible manner, with information about the geographical address where the trader is established and the latter’s telephone number, fax number and email address, where they are available, in order to allow the consumer to contact it quickly and communicate with it efficiently and, where appropriate, the geographical address and identity of the trader on whose behalf he is acting.34It is apparent in particular from the request for a preliminary ruling and from the comments presented by the parties to the main proceedings and the other interested parties in the present case, that two interpretations of the wording of Article 6(1)(c) of Directive 2011/83 are possible. Firstly, that provision could be read as providing for an obligation, for traders, to inform consumers of their telephone number and fax number in the event that those numbers are available to those traders. Secondly, that provision imposes such an obligation on traders solely if the latter uses the telephone or fax in its contacts with consumers.35It must be noted that the wording of that provision and, more particularly, the expression ‘where available’ contained in it, does not, in itself, allow the exact scope of that provision to be determined.36That issue is not resolved by the analysis of different language versions of Article 6(1)(c) of Directive 2011/83. Although the majority of those versions, in particular the versions in English (‘where available’), French (‘lorsqu’ils sont disponibles’), Dutch (‘indien beschikbaar’), Italian (‘ove disponibili’), Polish (‘o ile jest dostępny’) and Finnish (‘jos nämä ovat käytettävissä’) suggest that, under that provision, the obligation imposed on traders to inform consumers of their telephone and fax numbers applies only where those traders have such means of communication, the fact remains that other versions of that provision, in particular those in Spanish (‘cuando proceda’) and German (‘gegebenenfalls’), do not allow the circumstances to be determined in which that obligation does not apply.37It is therefore necessary to interpret that provision by reference to the context in which it occurs and the objectives pursued by the rules of which it is part (see, by analogy, judgments of 24 January 2019, Balandin and Others, C‑477/17, EU:C:2019:60, paragraph 31, and of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 45).38As regards, in the first place, the context of Article 6(1)(c) of Directive 2011/83 and the general scheme of that directive, it should be noted that that provision provides for an obligation to provide pre-contractual information in relation to distance and off-premises contracts referred to in Article 2(7) and (8) of that directive.39As regards, secondly, the objective of Directive 2011/83, as follows from Article 1 thereof, read in conjunction with recitals 4, 5 and 7, that directive seeks to provide a high level of consumer protection by ensuring that consumers are informed and secure in transactions with traders. Moreover, the protection of consumers within EU policies is set out in Article 169 TFEU and in Article 38 of the Charter.40Directive 2011/83 seeks to afford consumers extensive protection by conferring on them a number of rights in relation to, inter alia, distance and off-premises contracts (see, to that effect, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 35).41In particular, it should be noted that the possibility, for consumers, to contact traders quickly and to communicate with them efficiently, as provided for in Article 6(1)(c) of Directive 2011/83, is of fundamental importance for ensuring and effectively implementing consumer rights and, in particular, the right of withdrawal, the detailed arrangements and conditions for the exercise of which are set out in Articles 9 to 16 of that directive.42That is moreover the reason why part A, entitled ‘Model instructions on withdrawal’, partly reproduced in part B, entitled ‘Model withdrawal form’, which is included in Annex I to Directive 2011/83, provides for the indication of the geographical address of the trader and, where they are available, his telephone and fax numbers and his email address.43With this in mind, Article 6(1) of Directive 2011/83 seeks to ensure the communication to consumers, before the conclusion of a contract, both of information concerning the contractual terms and the consequences of that conclusion, allowing consumers to decide whether they wish to be contractually bound to a trader (see, to that effect, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 36), and of information necessary for proper performance of that contract and, in particular, for the exercise of their rights, in particular the right of withdrawal (see, by analogy, judgment of 5 July 2012, Content Services, C‑49/11, EU:C:2012:419, paragraph 34).44In that regard, although it is true that the possibility for consumers to contact traders quickly and to communicate efficiently with them, as provided for by Article 6(1)(c) of Directive 2011/83, is of crucial importance for protecting their rights, as has been noted in paragraph 41 of the present judgment, the fact remains that, in interpreting that provision, it is necessary to ensure the right balance between a high level of consumer protection and the competitiveness of undertakings, as is stated in recital 4 of that directive, while respecting the undertaking’s freedom to conduct a business, as set out in Article 16 of the Charter (see, by analogy, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraphs 41 and 42).45It should be noted in that context that, by adopting the provisions of Directive 2011/83 and in particular Article 6(1)(c) thereof, the Union legislature considered, as is stated in recital 34 of that directive, that where traders provide pre-contractual information, they should take account of the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee.46It follows from the foregoing that although Article 6(1)(c) of Directive 2011/83 does not determine the precise nature of the means of communication which must be established by traders, that provision necessarily requires traders to put at the disposal of all consumers a means of communication which allows the latter to contact them quickly and to communicate with them efficiently.47It is for the referring court to assess whether, in the light of all the circumstances in which consumers make contact with traders through a website and in particular of the presentation and functionality of that site, the means of communication made available to those consumers by those traders allow consumers to contact traders quickly and to communicate with them efficiently, in accordance with Article 6(1)(c) of Directive 2011/83.48Moreover, an unconditional obligation to provide consumers, in all circumstances, with a telephone number, or even to put in place a telephone or fax line, or to create a new email address in order to allow consumers to contact traders seems to be disproportionate, in particular in the economic context of the functioning of certain undertakings, in particular small undertakings, which might seek to reduce their operating costs by organising sales or the provision of services at a distance or off-premises.49Furthermore, Article 5(1)(b) of Directive 2011/83 on information obligations imposed on traders in the context of the conclusion of distance or off-premises contracts, unequivocally provides that traders must provide consumers, before the latter are bound by such a contract or any corresponding offer, ‘the following information in a clear and comprehensible manner, if that information is not already apparent from the context: … the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number’. It follows therefrom that if the intention of the EU legislature had been to confer on the obligation to provide details of their telephone numbers, imposed on traders by Article 6(1)(c) of that directive, the same scope as that unequivocally imposed on those traders under Article 5(1)(b) of that directive, it seems plausible that it would have adopted the same wording.50Finally, as is stated by the Advocate General in point 76 of his Opinion, Article 21 of Directive 2011/83, which requires Member States not to allow traders who operate a telephone line for the purpose of contacting consumers to charge more than the basic call rate when consumers contact them in relation to a concluded contract, also supports an interpretation of Article 6(1)(c) of Directive 2011/83 according to which the use, by traders, of the telephone as a means of communicating with consumers in the context of distance contracts is also not imposed in the context of a pre-contractual relationship.51In the light of the foregoing considerations, it is necessary to interpret the words ‘where available’ provided for in Article 6(1)(c) of Directive 2011/83 as covering cases where traders have a telephone or fax number and do not use them solely for purposes other than contacting consumers. In the absence thereof, that provision does not impose on traders the obligation to inform consumers of that telephone number, to provide a telephone or fax line, or to create a new email address to allow consumers to contact them.52Furthermore, it must be noted that that provision does not preclude traders from providing other means of communication than by telephone, fax or email in order to satisfy the criteria of direct and effective communication, such as, in particular, an electronic enquiry template, by means of which consumers can contact traders by means of a website and receive a written response or can be quickly called back. More particularly, it does not preclude traders offering goods or services online and which have a telephone number available in a few clicks from encouraging the use, by consumers, of other means of communication which are not mentioned in that provision, such as instant messaging or a telephone callback system, to allow consumers to contact them quickly and to communicate with them efficiently, in so far as the information that traders are obliged to provide under Article 6(1)(c) of Directive 2011/83, and in particular that telephone number, is made accessible in a clear and comprehensible manner, which it is for the referring court to verify. In that regard, the fact that the telephone number is available only following a series of clicks does not, in itself, mean that the manner used is not clear and comprehensible, regarding a situation such as that in the dispute in the main proceedings, which concerns a trader offering the online sale of various goods, exclusively by means of a website.53Having regard to all the foregoing considerations, the answer to the questions referred is that:Article 6(1)(c) of Directive 2011/83 must be interpreted as, firstly, precluding national legislation, such as that at issue in the main proceedings, which imposes on traders, before concluding a distance or off-premises contract referred to in Article 2(7) and (8) of that directive, to provide, in all circumstances, their telephone number. Secondly, that provision does not imply an obligation for traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them and requires that number, the fax number or their email address to be communicated only where those traders already have those means of communication with consumers;Article 6(1)(c) of Directive 2011/83 must be interpreted as meaning that, although that provision requires traders to make available to consumers a means of communication capable of satisfying the criteria of direct and effective communication, it does not preclude those traders from providing other means of communication than those listed in that provision in order to satisfy those criteria. Costs 54Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: Article 6(1)(c) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as, firstly, precluding national legislation, such as that at issue in the main proceedings, which imposes on traders, before concluding a distance or off-premises contract referred to in Article 2(7) and (8) of that directive, to provide, in all circumstances, their telephone number. Secondly, that provision does not imply an obligation for traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them and requires that number, the fax number or their email address to be communicated only where those traders already have those means of communication with consumers; Article 6(1)(c) of Directive 2011/83 must be interpreted as meaning that, although that provision requires traders to make available to consumers a means of communication capable of satisfying the criteria of direct and effective communication, it does not preclude those traders from providing other means of communication than those listed in that provision in order to satisfy those criteria. [Signatures]( *1 ) Language of the case: German. | 8bc53-296dc8e-4d60 | EN |
A Member State may, for reasons of public policy such as combating incitement to hatred, impose a temporary obligation to broadcast or retransmit a television channel from another Member State only in pay-to-view packages | 4 July 2019 ( *1 )(Reference for a preliminary ruling — Freedom to provide services — Directive 2010/13/EU — Audiovisual media services — Television broadcasting — Article 3(1) and (2) — Freedom of reception and retransmission — Incitement to hatred on grounds of nationality — Measures taken by the receiving Member State — Temporary obligation for media service providers and other persons providing services relating to the distribution of television channels or programmes via the internet to distribute or retransmit a television channel in the territory of that Member State only in pay-to-view packages)In Case C‑622/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), made by decision of 26 October 2017, received at the Court on 3 November 2017, in the proceedings Baltic Media Alliance Ltd v Lietuvos radijo ir televizijos komisija, THE COURT (Second Chamber),composed of A. Arabadjiev, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, T. von Danwitz, C. Vajda (Rapporteur) and P.G. Xuereb, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: M. Aleksejev, head of unit,having regard to the written procedure and further to the hearing on 28 November 2018,after considering the observations submitted on behalf of:–Baltic Media Alliance Ltd, by R. Audzevičius, advokatas, and H. Stelmokaitis,Lietuvos radijo ir televizijos komisija, by A. Iškauskas and J. Nikė, advokatai,the Lithuanian Government, by K. Juodelytė, R. Dzikovič and D. Kriaučiūnas, acting as Agents,the European Commission, by A. Steiblytė, G. Braun and S.L. Kalėda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3(1) and (2) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).2The request has been made in proceedings between Baltic Media Alliance Ltd (‘BMA’) and Lietuvos radijo ir televizijos komisija (Lithuanian Radio and Television Commission) (‘the LRTK’) concerning that authority’s decision of 18 May 2016 (‘the decision of 18 May 2016’) requiring media service providers carrying on their activities in Lithuanian territory and other persons providing Lithuanian consumers with services relating to the distribution of television channels or broadcasts via the internet, for 12 months from the date on which the decision became effective, to broadcast or retransmit the channel NTV Mir Lithuania in Lithuanian territory only in pay-to-view packages. Legal context European Convention on Transfrontier Television 3Article 4 of the European Convention on Transfrontier Television, signed at Strasbourg on 5 May 1989, headed ‘Freedom of reception and retransmission’, reads as follows:‘The Parties shall ensure freedom of expression and information in accordance with Article 10 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on 4 November 1950] and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention.’ EU law Directive 89/552/EEC 4Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23) stated in its 4th, 9th, 10th and 15th recitals:‘Whereas the Council of Europe has adopted the European Convention on Transfrontier Television;…Whereas the laws, regulations and administrative measures in Member States concerning the pursuit of activities as television broadcasters and cable operators contain disparities, some of which may impede the free movement of broadcasts within the Community and may distort competition within the common market;Whereas all such restrictions on freedom to provide broadcasting services within the Community must be abolished under the Treaty;Whereas the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States; whereas, however, the receiving Member State may, exceptionally and under specific conditions provisionally suspend the retransmission of televised broadcasts.’5Article 2(2) of that directive provided:‘Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. Member States may provisionally suspend retransmissions of television broadcasts if the following conditions are fulfilled:…’ Directive 97/36/EC 6Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Directive 89/552 (OJ 1997 L 202, p. 60) replaced Article 2 of Directive 89/552 by a new provision and inserted in Directive 89/552 a new Article 2a, which provided in paragraphs 1 and 2:‘1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive.2. Member States may, provisionally, derogate from paragraph 1 if the following conditions are fulfilled: Directive 2010/13 7Directive 2010/13 codified and replaced Directive 89/552, as amended by Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 332, p. 27). Recitals 1, 4, 5, 8, 26, 35, 36, 41, 43, 54 and 104 of Directive 2010/13 state:‘(1)Directive 89/552 … has been substantially amended several times … In the interests of clarity and rationality the said Directive should be codified.(4)In the light of new technologies in the transmission of audiovisual media services, a regulatory framework concerning the pursuit of broadcasting activities should take account of the impact of structural change, the spread of information and communication technologies (ICT) and technological developments on business models, especially the financing of commercial broadcasting, and should ensure optimal conditions of competitiveness and legal certainty for Europe’s information technologies and its media industries and services, as well as respect for cultural and linguistic diversity.(5)Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy — in particular by ensuring freedom of information, diversity of opinion and media pluralism — education and culture justifies the application of specific rules to these services.(8)It is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole.(26)For the purposes of this Directive, the definition of media service provider should exclude natural or legal persons who merely transmit programmes for which the editorial responsibility lies with third parties.(35)The fixing of a series of practical criteria is designed to determine by an exhaustive procedure that only one Member State has jurisdiction over a media service provider in connection with the provision of the services which this Directive addresses. Nevertheless, taking into account the case-law of the Court … and so as to avoid cases where there is a vacuum of jurisdiction, it is appropriate to refer to the criterion of establishment within the meaning of Articles 49 to 55 [TFEU] as the final criterion determining the jurisdiction of a Member State.(36)The requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Union law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States. However, the receiving Member State may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts.(41)Member States should be able to apply more detailed or stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with general principles of Union law. In order to deal with situations where a broadcaster under the jurisdiction of one Member State provides a television broadcast which is wholly or mostly directed towards the territory of another Member State, a requirement for Member States to cooperate with one another and, in cases of circumvention, the codification of the case-law of the Court of Justice …, combined with a more efficient procedure, would be an appropriate solution that takes account of Member State concerns without calling into question the proper application of the country of origin principle. The concept of rules of general public interest has been developed by the Court of Justice in its case-law in relation to Articles 43 and 49 [EC] (now Articles 49 and 56 [TFEU]) and includes, inter alia, rules on the protection of consumers, the protection of minors and cultural policy. The Member State requesting cooperation should ensure that the specific national rules in question are objectively necessary, applied in a non-discriminatory manner and proportionate.(43)Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict freedom of movement of television broadcasting, but only under the conditions and following the procedure laid down in this Directive. However, the Court of Justice has consistently held that any restriction on the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively …(54)Member States are free to take whatever measures they deem appropriate with regard to audiovisual media services which come from third countries and which do not satisfy the conditions laid down in Article 2, provided they comply with Union law and the international obligations of the Union.(104)Since the objectives of this Directive, namely the creation of an area without internal frontiers for audiovisual media services whilst ensuring at the same time a high level of protection of objectives of general interest, in particular the protection of minors and human dignity as well as promoting the rights of persons with disabilities, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. …’8Article 1 of Directive 2010/13, which forms part of Chapter 1, ‘Definitions’, of the directive, provides in paragraph 1(a) and (c) to (f):‘For the purposes of this Directive, the following definitions shall apply:(a)“audiovisual media service” means:(i)a service as defined by Articles 56 and 57 [TFEU] which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC [of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33)]. Such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph;(c)“editorial responsibility” means the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services. Editorial responsibility does not necessarily imply any legal liability under national law for the content or the services provided;(d)“media service provider” means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;(e)“television broadcasting” or “television broadcast” (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule;(f)“broadcaster” means a media service provider of television broadcasts.’9In accordance with Article 2(1) to (3) of Directive 2010/13:‘1. Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.2. For the purposes of this Directive, the media service providers under the jurisdiction of a Member State are any of the following:those established in that Member State in accordance with paragraph 3; …3. For the purposes of this Directive, a media service provider shall be deemed to be established in a Member State in the following cases:the media service provider has its head office in that Member State and the editorial decisions about the audiovisual media service are taken in that Member State;(b)if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the Member State where it has its head office. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.’10Article 3(1) and (2) of that directive provides:‘1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive.2. In respect of television broadcasting, Member States may provisionally derogate from paragraph 1 if the following conditions are fulfilled:a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 27(1) or (2) and/or Article 6;during the previous 12 months, the broadcaster has infringed the provision(s) referred to in point (a) on at least two prior occasions;the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again;consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists.The Commission shall, within 2 months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Union law. If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency.’11Article 4(2) to (5) of the directive provides:‘2. In cases where a Member State:has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; andassesses that a broadcaster under the jurisdiction of another Member State provides a television broadcast which is wholly or mostly directed towards its territory;it may contact the Member State having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. On receipt of a substantiated request by the first Member State, the Member State having jurisdiction shall request the broadcaster to comply with the rules of general public interest in question. The Member State having jurisdiction shall inform the first Member State of the results obtained following this request within 2 months. Either Member State may invite the contact committee established pursuant to Article 29 to examine the case.3. The first Member State may adopt appropriate measures against the broadcaster concerned where it assesses that:the results achieved through the application of paragraph 2 are not satisfactory; andthe broadcaster in question has established itself in the Member State having jurisdiction in order to circumvent the stricter rules, in the fields coordinated by this Directive, which would be applicable to it if it were established in the first Member State.Such measures shall be objectively necessary, applied in a non-discriminatory manner and proportionate to the objectives which they pursue.4. A Member State may take measures pursuant to paragraph 3 only if the following conditions are met:it has notified the Commission and the Member State in which the broadcaster is established of its intention to take such measures while substantiating the grounds on which it bases its assessment; andthe Commission has decided that the measures are compatible with Union law, and in particular that assessments made by the Member State taking those measures under paragraphs 2 and 3 are correctly founded.5. The Commission shall decide within 3 months following the notification provided for in point (a) of paragraph 4. If the Commission decides that the measures are incompatible with Union law, the Member State in question shall refrain from taking the proposed measures.’12Under Article 6 of the directive:‘Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality.’ Lithuanian law 13Article 19(1)(3) of the Lietuvos Respublikos visuomenės informavimo įstatymas (Law of the Lithuanian Republic on the provision of information to the public) of 2 July 2006 (Žin., 2006, No 82-3254), in the version applicable to the dispute in the main proceedings (‘the Law on information for the public’), which transposed Article 6 of Directive 2010/13, provides:‘It is prohibited to distribute in the media information(3)which consists in war propaganda, incites war or hatred, ridicule or contempt, which incites discrimination, violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds of age, sex, sexual orientation, ethnic origin, race, nationality, citizenship, language, origin, social status, belief, convictions, views or religion; …’14Article 33(11) and (12) of that law provides:‘11. Bodies that retransmit television channels and other persons providing Lithuanian consumers with a service relating to the distribution on the internet of television channels and/or programmes composed of packages of channels which are retransmitted and/or distributed via the internet must comply with the rules adopted by the [LRTK] regarding the composition of packages and ensure the right of consumers to impartial information, a diversity of opinions, cultures and languages and the adequate protection of minors from the detrimental effects of public information. For a period of 12 months following the adoption of the decision referred to in paragraph 12(1) of this article, television channels on which information falling under the prohibition laid down in Article 19(1)(3) of the [present law] may be retransmitted or distributed on the internet only in pay-to-view packages, in which case those packages must not be subject to subsidisation, support or concessions of any kind, and their price may not be lower than the costs incurred by the service provider for the acquisition, retransmission and/or distribution via the internet of the channels which make up those packages.12. Where the [LRTK] establishes that, on a television channel retransmitted and/or distributed via the internet from Member States of the European Union, States of the European Economic Area and other European States that have ratified the [European Convention on Transfrontier Television] or in programmes by that channel, information falling under the prohibition laid down in Article 19(1)(1), (2) and (3) of the [present law] has been published, distributed and disseminated:(1)it shall adopt a decision to the effect that the channel in question may be distributed only in pay-to-view packages and shall inform television broadcasters and other persons providing Lithuanian consumers with a service relating to the distribution on the internet of television channels and/or programmes accordingly;(2)it shall adopt without delay the measures provided for in Article 341 of that law in order to ensure that the distribution of television channels and/or programmes complies with the requirements of that law.15Article 341(1) and (3) of the Law on information for the public transposes Article 3(1) and (2) of Directive 2010/13. Article 341(1) of that law provides that freedom of reception of audiovisual media services from, in particular, the Member States, is to be guaranteed in Lithuania. Article 341(3) of the law provides that that freedom may be ‘temporarily suspended’ where four conditions corresponding to those laid down in Article 3(2) of Directive 2010/13 are fulfilled.16According to the order for reference, a basic package is a package of television channels compiled and offered to consumers by a broadcaster or other person providing those consumers with services of distribution of television channels or programmes via the internet, in return for payment of a fixed fee. A pay-to-view package is a package of channels distributed to consumers in return for payment of an additional fee not included in the price of the basic package. The dispute in the main proceedings and the questions referred for a preliminary ruling 17BMA, a company registered in the United Kingdom, holds a licence granted by the Office of Communications (United Kingdom) to broadcast the television channel NTV Mir Lithuania.18The LRTK, pursuant to Article 33(11) and (12)(1) of the Law on information for the public, adopted the decision of 18 May 2016. That decision was based on the fact that a programme broadcast on 15 April 2016 on the channel NTV Mir Lithuania, entitled ‘Ypatingas įvykis. Tyrimas’ (Special event: investigation), contained information that incited hatred based on nationality, which was prohibited under Article 19(1)(3) of that law.19On 22 June 2016 the LRTK adopted a new decision amending the decision of 18 May 2016. It deleted the obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages, and decided to open a procedure for the temporary suspension of that channel in accordance with Article 341(3) of the Law on information for the public. In that connection, it notified BMA of the infringement found in its decision of 18 May 2016 and of the measures it intended to take if such an infringement reoccurred. The LRTK also informed the Office of Communications of the infringement.20On the same date, BMA brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking the annulment of the decision of 18 May 2016. In this connection BMA submits in particular that the decision was taken in breach of Article 3(2) of Directive 2010/13 and that it restricted the retransmission of a television channel from a Member State. The reasons stated for that restriction and the procedure followed for the adoption of the decision should thus have been consistent with that provision. However, that was not the case.21In those circumstances the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:Does Article 3(1) and (2) of Directive [2010/13] cover only cases in which a receiving Member State seeks to suspend television broadcasting and/or retransmission, or does it also cover other measures taken by a receiving Member State with a view to restricting in some other way the freedom of reception of programmes and their transmission?Must recital 8 and Article 3(1) and (2) of Directive [2010/13] be interpreted as prohibiting receiving Member States, after they have established that material referred to in Article 6 of that directive was published, transmitted for distribution and distributed in a television programme retransmitted and/or distributed via the internet from a Member State of the European Union, from taking, without the conditions set out in Article 3(2) of that directive having been fulfilled, a decision such as that provided for in Article 33(11) and (12)(1) of the Law [on information for the public], that is to say, a decision imposing an obligation on broadcasters operating in the territory of the receiving Member State and other persons providing services relating to the distribution of television programmes via the internet to ensure, on a provisional basis, that the television programme may be retransmitted and/or distributed via the internet only in television programme packages that are available for an additional fee?’ Consideration of the questions referred Admissibility 22The LRTK and the Lithuanian Government submit that the request for a preliminary ruling is inadmissible.23In the first place, they submit that the questions referred are hypothetical. Since the LRTK, on the very day that BMA brought proceedings before the referring court, amended the decision of 18 May 2016, deleted the obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages, and started a procedure for suspension in accordance with Article 3(2) of Directive 2010/13, the dispute in the main proceedings has become devoid of purpose, as BMA no longer has any interest in obtaining a declaration from the court that that decision was unlawful.24In that regard, it should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them (see, inter alia, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 18).25It also follows from that case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).26It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).27Moreover, according to settled case-law, the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited).28In the present case, the referring court stated in the order for reference that, notwithstanding the amendment to the decision of 18 May 2016 by which the LRTK withdrew the measures challenged by BMA, it will have to rule on whether the LRTK infringed BMA’s rights by that decision and whether the decision was lawful when it was adopted.29In this respect, BMA submits that the decision of 18 May 2016 was in force from 23 May to 27 June 2016, that during that period it had harmful effects for BMA, and that, when it amended the decision, the LRTK did not acknowledge its unlawfulness or remove the effects it had already produced. BMA further submits that a finding that the decision of 18 May 2016 was unlawful would in particular make it possible to avert the risk of the alleged unlawfulness reoccurring in future.30It is thus apparent that, since the LRTK’s withdrawal of the measures contested by BMA on the date of bringing the main proceedings did not give BMA satisfaction, there is indeed a dispute pending before the referring court.31In those circumstances, it is not obvious that the dispute in the main proceedings has become devoid of purpose, so that the questions submitted bear no relation to the actual facts of the main action or its purpose or concern a hypothetical problem.32In the second place, the Lithuanian Government submits that a measure imposing an obligation to distribute a television channel, for 12 months, only in pay-to-view packages, such as that at issue in the main proceedings, restricts the accessibility of that channel in national territory without thereby suspending the retransmission of an audiovisual service. Such a measure therefore falls outside the scope of Article 3(1) and (2) of Directive 2010/13 and constitutes an autonomous measure taken under national law, with the consequence that an interpretation of the provisions of that directive is not necessary.33In this respect, it must be stated that this argument does not relate to the admissibility of the request for a preliminary ruling but goes to the substance of the dispute in the main proceedings and, more particularly, is the subject of the first question referred (see, by analogy, judgment of 4 October 1991, Society for the Protection of Unborn Children Ireland, C‑159/90, EU:C:1991:378, paragraph 15).34In the light of the above considerations, the request for a preliminary ruling must be regarded as admissible. Substance Preliminary observations 35In the first place, it is appropriate to consider the argument put forward by the LRTK and the Lithuanian Government that a television channel, such as that at issue in the main proceedings, whose programmes are produced in a third State does not fall within the scope of Directive 2010/13, and cannot therefore enjoy the freedom of reception and retransmission laid down by that directive.36The Lithuanian Government submits that the programmes of the channel NTV Mir Lithuania are produced by a company established in Russia and that BMA, established in the United Kingdom, confines itself to offering a mere distribution service for that channel in Lithuanian territory, without exercising any editorial responsibility over its content.37On this point, it must be noted that Directive 2010/13, as may be seen from recital 35, lays down a series of practical criteria to determine which Member State has jurisdiction over a media service provider in connection with the provision of the services which are the subject of the directive.38In accordance with Article 2(2)(a) of Directive 2010/13, the jurisdiction of a Member State extends to media service providers within the meaning of Article 1(1)(d) of that directive who are regarded as established in that Member State in accordance with Article 2(3).39First, the concept of ‘media service provider’ is defined in Article 1(1)(d) of Directive 2010/13 as meaning the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised.40The concept of ‘editorial responsibility’ is defined in Article 1(1)(c) of that directive as ‘the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services’. It is the exercise of that control entailing the taking of editorial decisions and the consequent assumption of editorial responsibility that characterise a media service provider defined in Article 1(1)(d) of that directive.41Consequently, a natural or legal person established in a Member State assumes editorial responsibility within the meaning of Article 1(1)(c) of Directive 2010/13 for the programmes of a television channel it distributes if it selects that channel’s programmes and organises them in a chronological schedule. In that case, it is therefore a media service provider within the meaning of Article 1(1)(d) of that directive.42On the other hand, as follows from recital 26 of Directive 2010/13, the definition of a media service provider excludes natural or legal persons who merely distribute programmes for which third parties have editorial responsibility.43As regards the various factors to be taken into account in this respect, the fact that the person in question has been licensed by the regulatory body of a Member State, while it may be an indication that that person has assumed editorial responsibility for the programmes of the channel he distributes, cannot — as the Advocate General observes in point 40 of his Opinion — be decisive, since the EU legislature did not harmonise in Directive 2010/13 the grant of licences or administrative authorisations for the provision of audiovisual media services. It must additionally be assessed whether the person has power to make a final decision as to the audiovisual offer as such, which presupposes that he has sufficient material and human resources available to him to be able to assume such responsibility, as the Advocate General observes in points 43 to 45 of his Opinion.44Second, Article 2(3)(a) to (c) of Directive 2010/13 sets out the cases in which a media service provider is regarded as established in a Member State, and consequently falls within the scope of that directive.45It follows from Article 2(3)(a) of Directive 2010/13 that a media service provider is regarded as established in a Member State if it has its head office in that Member State and ‘the editorial decisions about the audiovisual service are taken in that Member State’.46Consequently, for the purposes of determining whether a natural or legal person falls within the scope of Directive 2010/13, in accordance with Article 2(3)(a) of that directive, it must be ascertained not only whether the person in question who assumes editorial responsibility for the audiovisual media services provided has his head office in a Member State, but also whether the editorial decisions relating to those services are taken in that Member State.47While that is a question of fact which is for the referring court to assess, the Court may nevertheless provide that court with the points of interpretation of EU law which it requires in order to decide the dispute before it.48For the purposes of the assessment referred to in paragraph 46 above, it must be ascertained whether the editorial decisions about the audiovisual media services mentioned in paragraph 40 above are taken in the Member State in whose territory the media service provider concerned has its head office.49It should be noted, in this connection, that the place where those editorial decisions relating to the audiovisual media services are taken is also of relevance for the application of the material criteria laid down in Article 2(3)(b) and (c) of Directive 2010/13.50In that respect, it follows from the first sentence of Article 2(3)(b) of Directive 2010/13 that ‘if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates’. In addition, Article 2(3)(c) of that directive provides that ‘if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State’.51Moreover, as may be seen from the wording of Article 2(3)(b) and Article 2(3)(c) of Directive 2010/13, the place of the head office of the media service provider and the place where the workforce involved in the pursuit of those services operates are also relevant for the application of those provisions.52It follows from the observations in paragraphs 38 to 51 above that the exercise of editorial responsibility with respect to audiovisual media services characterises a provider of those services within the meaning of Article 1(1)(d) of Directive 2010/13. Moreover, the place where a media service provider has its head office and the place where the editorial decisions about those services are taken, and also, as the case may be, the place where the workforce involved in the pursuit of those services operates, are relevant criteria for ascertaining whether the provider is established in a Member State pursuant to Article 2(3) of that directive, with the result that the services it provides fall within the scope of the directive. On the other hand, the fact that the programmes of a television channel distributed in the territory of a Member State may be produced in a third country is of no relevance for that purpose.53In the second place, it is appropriate to consider the Lithuanian Government’s argument that Lithuanian legislation should be applied because the channel NTV Mir Lithuania is directed exclusively towards Lithuanian territory and BMA became established in a Member State other than the Republic of Lithuania with the intent of circumventing that legislation.54On this point, it suffices to note that Article 4(2) to (5) of Directive 2010/13 provides for a special procedure to regulate situations in which a broadcaster under the jurisdiction of one Member State provides a television broadcast which is wholly or mostly directed towards the territory of another Member State. Subject to compliance with the conditions and procedure laid down by that provision, the receiving Member State may apply to such a broadcaster its rules of general public interest or other stricter rules in the fields coordinated by that directive.55In the present case, however, it is common ground that the LRTK did not follow that procedure for the adoption of the decision of 18 May 2016.56Accordingly, neither the fact that the programmes of the channel NTV Mir Lithuania may be produced in a third country nor, since the Republic of Lithuania did not comply with the special procedure provided for by Directive 2010/13, the fact that that channel, whose provider is established in another Member State, is directed exclusively towards Lithuanian territory dispenses the Republic of Lithuania from applying that directive. Question 1 57By its first question, the referring court asks in substance whether Article 3(1) and (2) of Directive 2010/13 must be interpreted as meaning that a public policy measure adopted by a Member State, consisting in an obligation for media service providers whose programmes are directed towards the territory of that Member State and for other persons providing consumers of that Member State with services relating to the distribution of television channels or programmes via the internet to distribute or retransmit in the territory of that Member State, for a period of 12 months, a television channel from another Member State only in pay-to-view packages, is covered by that provision.58The Court’s answer to that question is founded on the premiss that BMA, to which the measures at issue in the main proceedings are addressed, is a media service provider established in a Member State other than the Republic of Lithuania, namely the United Kingdom of Great Britain and Northern Ireland, falling within the scope of Directive 2010/13 in accordance with Articles 1 and 2 of that directive, which is for the referring court to ascertain, taking into account the indications in paragraphs 37 to 52 above.59On the other hand, in so far as other persons providing Lithuanian consumers with services relating to the distribution of television channels or programmes via the internet do not have the status of ‘media service provider’ within the meaning of Article 1(1)(d) of Directive 2010/13, they are not covered by Article 3(1) and (2) of that directive.60Moreover, it should be noted that a media service provider established in Lithuania is subject to the jurisdiction of that Member State, as follows from Article 2 of Directive 2010/13, so that Article 3(1) and (2) of that directive does not apply to that provider.61In order to answer Question 1, it must be recalled that Article 3(1) of Directive 2010/13 provides that Member States are to ensure freedom of reception and not to restrict retransmissions in their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by that directive, among which are the measures against incitement to hatred referred to in Article 6 of the directive. As regards television broadcasting, Article 3(2) of the directive nonetheless allows Member States to derogate provisionally from Article 3(1), subject to a number of substantive and procedural conditions.62According to the order for reference, BMA on the one hand, and the LRTK and the Lithuanian Government on the other, are in disagreement as to the scope of Article 3(1) and (2) of Directive 2010/13. While BMA argues that that provision refers to any restriction by the receiving Member State of the freedom of reception and retransmission of television programmes, restriction being understood as a restriction within the meaning of Article 56 TFEU, the LRTK and the Lithuanian Government take the view that that provision covers only cases of the complete suspension of reception and retransmission of television programmes.63According to settled case-law of the Court, when a provision of EU law is being interpreted, account must be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole. The origin of a provision of EU law may also contain factors relevant to its interpretation (see, inter alia, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 50).64As regards, first, the wording of Article 3(1) and (2) of Directive 2010/13, that does not in itself allow the nature of the measures covered by the provision to be determined.65As regards, second, the context of Article 3(1) and (2) of Directive 2010/13 and the objectives of the directive, it must be noted — as the Advocate General does in point 59 of his Opinion — that, while that directive gives expression to the freedom to provide services guaranteed in Article 56 TFEU in the field of audiovisual media services by introducing, as stated in recital 104, ‘an area without internal frontiers’ for those services, account is taken at the same time, as stated in recital 5, of the cultural as well as economic nature of those services and their importance for democracy, education and culture, justifying the application of specific rules to those services.66Furthermore, it followed from the 9th and 10th recitals of Directive 89/552 that the restrictions the EU legislature intended to abolish were those resulting from disparities between the provisions of the Member States concerning the pursuit of broadcasting activities and the distribution of television programmes. The fields coordinated by that directive were thus coordinated only in so far as television broadcasting proper, as defined in Article 1(a) of that directive, was concerned (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraphs 31 and 32).67It follows from recitals 1 and 4 of Directive 2010/13 that that directive codifies Directive 89/552 in the light of new technologies in the transmission of audiovisual media services. Consequently, the fields coordinated by Directive 2010/13 are coordinated only with respect to the provision of audiovisual media services as such.68As regards, third, the origin of Article 3 of Directive 2010/13, it must be observed that in its original version the second sentence of the first subparagraph of Article 2(2) of Directive 89/552 mentioned the right of Member States provisionally to ‘suspend’ retransmissions of television broadcasts if the conditions stated were fulfilled. Although the EU legislature, when Directive 89/552 was amended by Directive 97/36, introduced a new Article 2a, the first subparagraph of paragraph 2 of which reproduced in substance the original wording of the second sentence of the first subparagraph of Article 2(2) of Directive 89/552, while replacing the verb ‘suspend’ by the verb ‘derogate’, there is — as the Advocate General observes in point 57 of his Opinion — no indication in the preamble to Directive 97/36 that, by that amendment, the EU legislature intended to reconsider the nature of the measures covered. On the contrary, the 15th recital of Directive 89/552 continued despite that amendment to mention the receiving Member State’s power to ‘provisionally suspend the retransmission of televised broadcasts’, that power now being mentioned in recital 36 of Directive 2010/13.69It should also be observed that the European Convention on Transfrontier Television, which was drawn up at the same time as Directive 89/552 and to which the fourth recital of that directive refers, requires in Article 4, which contains a similar provision to Article 3(1) of Directive 2010/13, that the parties to the convention shall ‘guarantee freedom of reception’ and ‘not restrict the retransmission’ in their territory of services which are within the scope of the convention and comply with its terms.70The fact that the EU legislature, in the wording of Article 3(1) of Directive 2010/13, took its lead from Article 4 of the European Convention on Transfrontier Television suggests that the terms ‘freedom of reception’ and ‘restrict’ have a specific meaning in that directive that is narrower than that of the concept of ‘restrictions on freedom to provide services’ in Article 56 TFEU.71In this connection, it should be noted that the Court has held, in relation to Directive 89/552 as amended by Directive 97/36, Article 2a(1) and (2) of which corresponds in substance to Article 3(1) and (2) of Directive 2010/13, that Directive 89/552 established the principle of recognition by the receiving Member State of the control function of the originating Member State with respect to the audiovisual media services of providers falling within its jurisdiction (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 35).72The Court held in that respect that it is solely for the Member State from which audiovisual media services emanate to monitor the application of the law of the originating Member State applicable to those services and to ensure compliance with Directive 89/552 as amended by Directive 97/36, and that the receiving Member State is not authorised to exercise its own control for reasons which fall within the fields coordinated by that directive (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 36 and the case-law cited).73On the other hand, Directive 2010/13 does not in principle preclude the application of national rules with the general aim of pursuing an objective of general interest, provided that they do not involve a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out (see, to that effect, judgment of 9 July 1997, De Agostini and TV-Shop, C‑34/95 to C‑36/95, EU:C:1997:344, paragraph 34).74It follows from the judgment of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344), that a national measure pursuing an objective of general interest which regulates certain aspects of the broadcasting or distribution of audiovisual media services does not fall within Article 3(1) and (2) of Directive 2010/13, unless it introduces a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out.75The Court stated in paragraph 50 of the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607), that legislation of a Member State which does not specifically concern the broadcast and distribution of programmes and which, in general, pursues a public policy objective, without however preventing retransmission as such, on its territory, of audiovisual media services from another Member State does not fall within Directive 89/552 as amended by Directive 97/36.76However, paragraph 50 of the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607), should not be interpreted as meaning that a national measure constitutes a restriction within the meaning of Article 3(1) of Directive 2010/13 where the legislation on the basis of which it is adopted regulates certain aspects of the broadcasting or distribution of audiovisual media services, such as the ways in which those services are broadcast or distributed.77A national measure does not constitute such a restriction if, in general, it pursues a public policy objective and regulates the methods of distribution of a television channel to consumers of the receiving Member State, where those rules do not prevent the retransmission as such of that channel. Such a measure does not introduce a second control of the channel’s broadcasts in addition to that which the broadcasting Member State is required to carry out.78As regards the measure at issue in the main proceedings, first, according to the observations submitted by the LRTK and the Lithuanian Government, by adopting Article 33(11) and (12)(1) of the Law on information for the public, on the basis of which the decision of 18 May 2016 was taken, the national legislature intended to combat the active distribution of information discrediting the Lithuanian State and threatening its status as a State in order, having regard to the particularly great influence of television on the formation of public opinion, to protect the security of the Lithuanian information space and guarantee and preserve the public interest in being correctly informed. The information referred to in that provision is the information covered by the prohibition in Article 19 of that law, which includes material inciting the overthrow by force of the Lithuanian constitutional order, inciting attacks on the sovereignty of the Republic of Lithuania, its territorial integrity and its political independence, consisting in war propaganda, inciting war or hatred, ridicule or contempt, or inciting discrimination, violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds inter alia of nationality.79In its observations before the Court, the LRTK stated that the decision of 18 May 2016 had been taken on the ground that a programme broadcast on the channel NTV Mir Lithuania contained false information which incited hostility and hatred based on nationality against the Baltic countries concerning the collaboration of Lithuanians and Latvians in connection with the Holocaust and the allegedly nationalistic and neo-Nazi internal policies of the Baltic countries, policies which were said to be a threat to the Russian national minority living in those countries. That programme was addressed, according to the LRTK, in a targeted manner to the Russian-speaking minority in Lithuania and aimed, by the use of various propaganda techniques, to influence negatively and suggestively the opinion of that social group relating to the internal and external policies of the Republic of Lithuania, the Republic of Estonia and the Republic of Latvia, to accentuate the divisions and polarisation of society, and to emphasise the tension in the Eastern European region created by Western countries and the Russian Federation’s role of victim.80It does not appear from the documents before the Court that those statements are contested, which is, however, for the referring court to ascertain. On that basis, a measure such as that at issue in the main proceedings must be regarded as pursuing, in general, a public policy objective.81Second, the LRTK and the Lithuanian Government stated in their written observations that the decision of 18 May 2016, which requires media service providers whose broadcasts are directed towards Lithuanian territory and other persons providing Lithuanian consumers with services relating to the distribution of television channels or broadcasts via the internet, for a period of 12 months, to broadcast or retransmit the channel NTV Mir Lithuania in that territory only in pay-to-view packages, governs exclusively the methods of distribution of that channel to Lithuanian consumers. At the same time, it is common ground in the main proceedings that the decision of 18 May 2016 does not suspend or prohibit the retransmission of that channel in Lithuanian territory, since, despite that decision, it can still be distributed legally in that territory and Lithuanian consumers can still view it if they subscribe to a pay-to-view package.82Consequently, a measure such as that at issue in the main proceedings does not restrict the retransmission as such in the territory of the receiving Member State of television programmes from another Member State of the television channel to which that measure is directed.83Such a measure is not therefore covered by Article 3(1) and (2) of Directive 2010/13.84In the light of all the above considerations, the answer to Question 1 is that Article 3(1) and (2) of Directive 2010/13 must be interpreted as meaning that a public policy measure adopted by a Member State, consisting in an obligation for media service providers whose programmes are directed towards the territory of that Member State and for other persons providing consumers of that Member State with services relating to the distribution of television channels or programmes via the internet to distribute or retransmit in the territory of that Member State, for a period of 12 months, a television channel from another Member State only in pay-to-view packages, without however restricting the retransmission as such in the territory of the first Member State of the television programmes of that channel, is not covered by that provision. Question 2 85In view of the answer to Question 1, there is no need to answer Question 2. Costs 86Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: Article 3(1) and (2) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) must be interpreted as meaning that a public policy measure adopted by a Member State, consisting in an obligation for media service providers whose programmes are directed towards the territory of that Member State and for other persons providing consumers of that Member State with services relating to the distribution of television channels or programmes via the internet to distribute or retransmit in the territory of that Member State, for a period of 12 months, a television channel from another Member State only in pay-to-view packages, without however restricting the retransmission as such in the territory of the first Member State of the television programmes of that channel, is not covered by that provision. [Signatures]( *1 ) Language of the case: Lithuanian. | ddaf6-d2ef7a8-49af | EN |
The General Court annuls the Commission’s decision finding that the Hungarian advertisement tax was incompatible with the EU State aid rules | 27 June 2019 ( *1 )(State aid — Hungarian tax on the turnover from the broadcasting or publication of advertisements — Progressivity of tax rates — Deduction from the basis of assessment of the tax of 50% of the losses carried forward for companies not generating a profit in 2013 — Decision characterising the measures as aid incompatible with the internal market and ordering its recovery — Concept of State aid — Condition relating to selectivity)In Case T‑20/17, Hungary, represented by M.-Z. Fehér, G. Koós and E.-Zs. Tóth, acting as Agents,applicant,supported by Republic of Poland, represented by B. Majczyna, M. Rzotkiewicz and A. Kramarczyk-Szaładzińska, acting as Agents,intervener,v European Commission, represented by V. Bottka and P.-J. Loewenthal, acting as Agents,defendant,APPLICATION pursuant to Article 263 TFEU seeking annulment of Commission Decision (EU) 2017/329 of 4 November 2016 on the measure SA.39235 (2015/C) (ex 2015/NN) implemented by Hungary on the taxation of advertisement turnover (OJ 2017 L 49, p. 36),THE GENERAL COURT (Ninth Chamber),composed of S. Gervasoni, President, L. Madise (Rapporteur) and R. da Silva Passos, Judges,Registrar: N. Schall, Administrator,having regard to the written part of the procedure and further to the hearing on 10 January 2019,gives the following Judgment Background to the dispute 1On 11 June 2014, the Hungarian National Assembly enacted Law No XXII of 2014 on Advertisement Tax (‘the Law on Advertisement Tax’). That law entered into force on 15 August 2014 and introduced a new special tax, applied progressively by bands, on turnover derived from the broadcasting or publication of advertisements in Hungary (‘the advertisement tax’), applied in addition to existing business taxes, in particular corporation tax. During the examination of the Law on Advertisement Tax carried out by the European Commission as part of the monitoring of State aid, the Hungarian authorities stated that the purpose of that tax was to promote the principle of public burden sharing.2According to the Law on Advertisement Tax, whoever broadcasts or publishes advertisements is subject to the advertisement tax. Those who make advertisements public (newspapers, audiovisual media, billposters) are, therefore, taxable persons, but not advertisers (for whom the advertising is produced) or advertising agencies who are intermediaries between advertisers and broadcasters or publishers. The taxable amount to which the tax is applied is the net turnover for the financial year generated by the broadcasting or publication of advertisements. The territorial scope of the tax is Hungary.3The scale of progressive rates was defined as follows:–0% for the part of the taxable amount below 0.5 billion Hungarian forint (HUF) (approximately EUR 1562000);1% for the part of the taxable amount between HUF 0.5 billion and HUF 5 billion (approximately EUR 15620000);10% for the part of the taxable amount between HUF 5 billion and HUF 10 billion (approximately EUR 31240000);20% for the part of the taxable amount between HUF 10 billion and HUF 15 billion (approximately EUR 47000000);30% for the part of the taxable amount between HUF 15 billion and HUF 20 billion (approximately EUR 62500000);40% for the part of the taxable amount above HUF 20 billion (approximately EUR 94000000). (That rate was increased to 50% from 1 January 2015).4Taxable persons whose pre-tax profits for the financial year 2013 were zero or negative could deduct from their 2014 taxable amount 50% of the losses carried forward from the earlier financial years.5By decision of 12 March 2015, after corresponding with the Hungarian authorities, the Commission initiated the formal investigation procedure for State aid, provided for in Article 108(2) TFEU, in relation to the Law on Advertisement Tax, taking the view that the progressive nature of the tax rate and the provisions on the deduction from the taxable amount of losses carried forward gave rise to State aid. In that decision, the Commission considered that the progressive tax rate differentiated between undertakings with high advertisement revenues (and thus large undertakings) and undertakings with low advertisement revenues (and thus small undertakings), and a selective advantage was thereby granted to the latter based on their size. The Commission was also of the view that the 50% deductibility of losses for undertakings that were not profit making in 2013 granted a selective advantage constituting State aid.6In the context of that same decision, the Commission issued a suspension injunction in respect of the measure at issue on the basis of Article 11(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU] (OJ 1999 L 83, p. 1).7Subsequently, Hungary amended the advertisement tax of its own initiative, without prior notification to, or approval by, the Commission, by Law No LXII of 2015, enacted on 4 June 2015, replacing the scale of six progressive rates from 0 to 50% by the following scale comprising two rates of taxation:0% for the part of the taxable amount below HUF 100 million (approximately EUR 312000);5.3% for the part of the taxable amount above HUF 100 million.8Law No LXII of 2015 also introduced an optional retroactive application back to the entry into force of the Law on Advertisement Tax in 2014. Consequently, a taxable person could decide whether he wished to be subject to the previous rates or the new rates, for his turnover for the previous tax year.9The Commission closed the formal investigation procedure by Decision (EU) 2017/329 of 4 November 2016 on the measure SA.39235 (2015/C) (ex 2015/NN) implemented by Hungary on the taxation of advertisement turnover (OJ 2017 L 49, p. 36, ‘the contested decision’). In Article 1 of the contested decision, the Commission concluded that the tax system composed of progressive tax rates and provisions prescribing a reduction in the amount of the tax liability in the form of deduction of losses carried forward for undertakings that were not profit making in 2013, established by Law No XXII of 2014 on Advertisement Tax, including the version of that law as amended on 4 June 2015, constituted State aid, unlawfully put into effect by Hungary, in breach of Article 108(3) TFEU, and was also incompatible with the internal market in the light of Article 107 TFEU.10In Articles 2 and 3 of the contested decision, the Commission stated nonetheless that if it met various criteria, certain individual aid granted under that system did not constitute State aid incompatible with the internal market.11In Article 4 of the contested decision, the Commission ordered Hungary to recover from the beneficiaries the aid declared incompatible with the internal market.12In that regard, the Hungarian authorities had to recover from the undertakings with advertisement turnover in the period from the entry into force of the advertisement tax in 2014 to either the date of its abolishment or replacement by a system which would be fully in line with State aid rules, the difference between: the amount of tax (1) that those undertakings should have paid under the application of a reference system in line with State aid rules (with a single tax rate of 5.3% unless another value was chosen by the Hungarian authorities, without the deduction of any losses carried forward), and the amount of tax (2) that the undertakings were liable to pay or had already paid. Consequently, if the difference between amount of tax (1) and amount of tax (2) was positive, the amount of aid had to be recovered including interest as of the date the tax was due. The Commission stated, however, that there would be no need for recovery if Hungary abolished the tax system at issue with retroactive effect from the date of its entry into force in 2014. This should not prevent Hungary from introducing for the future, for example from 2017, a tax system which was not progressive and did not differentiate between economic operators subject to the tax.13In essence, in the contested decision, the Commission for the most part justified characterising the system at issue as State aid in the following manner, in the light of the definition in Article 107(1) TFEU.14First of all, as regards whether the measure at issued may be imputed to the State and is financed through State resources, the Commission considered that since the Law on Advertisement Tax was enacted by the Hungarian Parliament, Hungary waived resources it would have had to collect from undertakings with a lower level of turnover (and thus smaller undertakings), if they had been subject to the same level of tax as undertakings with a higher turnover (that is to say larger undertakings).15As regards the existence of an advantage, the Commission noted that, just like positive benefits, measures which mitigated the charges normally borne by the undertakings provided an advantage. In the present case, being taxed at a substantially lower tax rate mitigated the charges that undertakings with a low turnover must bear as compared to undertakings with a high turnover and therefore provided an advantage to the benefit of smaller undertakings over larger undertakings. The Commission added that the possibility under the Law on Advertisement Tax for those undertakings that were not profit making in 2013 to deduct from the taxable amount 50% of the losses carried forward also constituted an advantage, since it reduced their tax burden compared to undertakings that could not benefit from that deduction.16As to whether the advantages identified favoured certain undertakings (selectivity criterion), the Commission stated that since a tax advantage was at issue, the assessment had to be carried out in several stages. First of all, the reference tax system had to be identified, then it had to be determined whether the measure at issue constituted a derogation from that system, in the sense that it differentiated between undertakings which, in light of the objectives intrinsic to the system, were in a comparable factual and legal situation, and lastly, if the answer was in the affirmative, it had to be established whether that derogation was justified by the nature or general scheme of the reference tax system. A negative answer at the second stage or, as the case may be, a positive answer at the third stage would preclude a selective advantage in favour of certain undertakings, whereas a positive answer at the second stage and negative answer at the third stage would, on the other hand, enable it to be concluded that there was a selective advantage.17In the present case, the Commission stated, first, that the reference system was that of a special tax on turnover derived from the provision of advertising services. But, according to the Commission, the progressive rate structure of the advertisement turnover tax could not form part of that reference system. In order for the reference system itself to be free from State aid, the Commission stated that it had to fulfil two conditions:advertisement turnovers must be subject to the same (single) tax rate,there must be no element that would provide a selective advantage to certain undertakings.18To that extent, the Commission considered, next, that the progressive structure of the taxation, in that it entailed not only marginal tax rates, but also average tax rates, which differed between undertakings, constituted a derogation from the reference system composed of a single-rate advertisement tax applied to all economic operators broadcasting or publishing advertisements in Hungary.19In addition, the Commission considered that the possibility only for undertakings that were not profit making in 2013 to deduct from the 2014 taxable amount 50% of losses carried forward also constituted a derogation from the reference system, namely the rule that operators are to be taxed on the basis of their turnover from advertisements. According to the Commission, since the advertisement tax relates to turnover, costs were not to be deductible from the taxable amount, contrary to what might be the case for profit-based taxes.20The Commission also took the view that the derogation from the reference system entailed by the progressive structure of the taxation was not justified by the nature or general scheme of the system. While the Hungarian authorities argued that the purpose of the advertisement tax was redistributive and the turnover and size of an undertaking reflected its ability to pay, so that an undertaking with higher advertising turnover has a greater ability to pay than an undertaking with lower advertising turnover, the Commission considered that the information provided by Hungary established neither that an undertaking’s turnover is a good proxy for its ability to pay nor that the pattern of progressivity of the tax is justified by the nature and general scheme of the tax system. For the Commission, a progressive tax levied on turnover could be justified only in order to offset or deter the occurrence of certain negative effects likely to be generated by the activity concerned, which are more significant the larger the turnover, but such a situation has in no way been established in the present case.21In addition, the Commission denied that the 50% deductibility of the losses carried forward can be justified as a measure to prevent tax avoidance and the circumvention of tax obligations, as the Hungarian authorities argued. According to the Commission, the measure introduced an arbitrary distinction between two groups of undertakings that are in a comparable legal and factual situation, namely, on the one hand, undertakings that had losses carried forward, and were not profit making in 2013 and, on the other, undertakings that were profit making in 2013, but would have been able to benefit from losses carried forward from earlier years.22In addition, the provision does not limit the losses that may be deducted to those incurred in 2013, but allows an undertaking that was not profit making in 2013 to use accumulated losses carried forward from earlier years as well. The deduction of losses already existing at the time of the enactment of the Law on Advertisement Tax could entail selectivity because the allowance of that deduction could favour certain undertakings with substantial losses carried forward.23The differences in treatment are, therefore, arbitrary and not in line with the nature of a turnover tax, and cannot be considered as participating in the fight against fraud and tax avoidance which could justify a difference in treatment.24In the light of the foregoing, the Commission concluded that the nature and general scheme of the tax system did not justify the measures at issue which conferred selective advantages, on the one hand, on undertakings with a low turnover (and thus smaller undertakings) and, on the other, on undertakings which, since they were not profit-making in 2013, could deduct from the 2014 taxable amount 50% of their losses carried forward.25Lastly, the Commission considered that the measure at issue distorted or threatened to distort competition and affected trade between Member States. In that regard, it found, in particular, that the Hungarian advertisement market was open to competition, that operators from other Member States participated in that market and that undertakings benefiting from the lowest tax rates benefited, therefore, from operating aid.26As regards the 2015 amended version of the advertisement tax, the Commission stated that that version was based on the same principles and features as those chosen for the 2014 advertisement tax.27First, the Commission emphasised that the new tax rates structure still provided for an exemption for undertakings with a turnover below HUF 100 million (0% rate), those undertakings with a higher turnover having to pay 5.3% advertisement tax. The Commission gave Hungary the opportunity to justify the application of a 0% tax rate to advertisement turnover below HUF 100 million by the purpose of the tax system (having regard to administrative burden for example). However, Hungary did not bring forward arguments to demonstrate that the cost of collection of the tax (administrative burden) outweighed the amounts of tax collected (up to around EUR 17000 of tax per year).28Secondly, according to the Commission, the optional retroactive effect of the amended advertisement tax allowed undertakings to avoid payment of the tax imposed by that retroactivity, and provided an economic advantage to the undertakings who therefore avoided the 5.3% rate, retaining the former rates of 0% or 1%.29Thirdly, the Commission considered, as regards the possibility of deducting from the 2014 taxable amount 50% of earlier losses carried forward, limited to companies that had not made a profit in 2013, which was not removed by the 2015 amendment, that the new system did not effect any change.30In the light of the foregoing, the Commission concluded that the Law on Advertisement Tax as amended in 2015 featured the same elements that the Commission regarded as entailing State aid in respect of the 2014 system.31On 16 May 2017, the Hungarian Parliament enacted Law No XLVII of 2017, amending the Law on Advertisement Tax. In essence, that law repealed the advertisement tax with retroactive effect.32The Commission states in that regard in its pleadings before the Court that Hungary did not use the possibility envisaged in recital 91 of the contested decision, which allowed a single fixed rate, applicable retroactively, to be set within 2 months from the date on which the contested decision was adopted. Noting, however, that Hungary abolished, with retroactive effect, the advertisement tax paid previously (‘considered an overpayment’) and that that provision was adopted expressly in order to implement the decision, the Commission states that the obligation to recover the aid previously identified has lapsed. Procedure and forms of order sought 33By document lodged at the Court on 16 January 2017, Hungary brought the present action.34By separate document lodged the same day, Hungary brought an application for suspension of operation of the contested decision (Case T‑20/17 R).35The President of the Court, by order of 23 March 2017, Hungary v Commission (T‑20/17 R, not published, EU:T:2017:203), dismissed the application for interim measures and reserved the costs.36The Commission lodged its defence on 27 March 2017.37By document lodged at the Court Registry on 19 May 2017, the Republic of Poland sought leave to intervene in the present proceedings in support of the form of order sought by Hungary. By decision of 30 May 2017, the President of the Ninth Chamber of the Court granted leave to intervene.38Hungary, the Commission and the Republic of Poland lodged a reply, a rejoinder and a statement in intervention on 15 May, 28 June and 26 July 2017, respectively.39Hungary and the Commission both lodged observations on the Republic of Poland’s statement in intervention on 7 November 2017.40By letter of 15 December 2017, Hungary requested a hearing, stating the reasons for its request.41Acting on a proposal from the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure. The Court also decided to put three questions to Hungary to be answered at the hearing.42The parties presented oral argument and answered the questions put by the Court at the hearing of 10 January 2019.43Hungary, supported by the Republic of Poland, claims that the Court should:annul the contested decision;in the alternative, annul the contested decision in part inasmuch as it also characterises as prohibited State aid the changes made by the amendment of the legislation in 2015;order the Commission to pay the costs.44The Commission contends that the Court should:dismiss the action as unfounded;order Hungary and the Republic of Poland to pay the costs of the proceedings. Law 45Hungary raises three pleas in law in support of its action, the first alleging an error in the legal characterisation of the measures at issue as State aid, within the meaning of Article 107(1) TFEU, the second alleging the failure to comply with the obligation to state reasons and the third alleging a misuse of powers.46In the present case, the Court considers it appropriate to examine, first, the plea in law alleging an error in the legal characterisation of the measures at issue as State aid, within the meaning of Article 107(1) TFEU.47First of all, it must be found that while in the grounds of the contested decision the Commission considered that the optional retroactive effect of the advertisement tax in the 2015 amended version provided an advantage to certain undertakings, as set out in paragraph 28 above, that assessment was not reflected in the operative part of the contested decision and therefore, as confirmed by the Commission’s representative at the hearing, that factor was not identified as a component of State aid. Consequently, there is no need to examine the arguments put forward against that assessment of the Commission.48As to the remainder, Hungary submits that the Commission wrongly found that the advertisement tax involved selective measures to the advantage of certain undertakings. According to Hungary, neither the progressive structure of the tax nor the reduction in the basis of assessment for loss-making undertakings in 2013 constitute State aid. The progressive structure of the tax 49Hungary submits, first of all, that there is no obligation to justify as such a structure for the progressive taxation of turnover to prevent its being characterised as State aid. There is no difference between, on the one hand, taxes on profit for which the Commission accepts progressivity and, on the other, taxes which are dependent on turnover, because both types of taxation have the same features in the light of the criteria for the categorisation as State aid if they are characterised by a scale of progressive rates. Tax diversity enables the national legislature to have numerous instruments at its disposal to ensure an optimal allocation of public burdens. According to Hungary, since the Member State’s competence to determine direct taxation rates still exists under the current state of EU law, there was, therefore, no need to justify by special reasons the rules on advertisement tax, in particular the recourse to a scale of progressive rates. The analysis of whether a tax includes State aid does not depend on the reasons which justified the basic structure underlying it.50Hungary refers to the judgments of 9 May 1985, Humblot (112/84, EU:C:1985:185); of 17 September 1987, Feldain (433/85, EU:C:1987:371); of 27 October 2005, Distribution Casino France and Others (C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657), and of 5 February 2014,Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2014:47), for the purposes of illustrating its argument, and states that in none of the cases concerning Member States’ tax systems characterised by a scale of progressive rates on successive bands, examined by the Court, has it been held that the system concerned gave rise itself to State aid or infringed EU law on the ground that the scale of rates was progressive on successive bands. Consequently, the Court’s case-law allows Member States to have recourse to progressive taxation in the case of a tax with a basis of assessment other than profits, without that giving rise as a matter of principle to State aid.51Hungary submits that if, on the contrary, it had to be found that the Commission rightly characterised the advertisement tax as State aid, that institution would be in a position to challenge any system of progressive taxation from the perspective of State aid, which would lead to an arbitrary prohibition on having recourse to such a tax measure.52More specifically, in the light of the criteria for State aid, within the meaning of Article 107(1) TFEU, Hungary puts forward the arguments set out as follows.53As regards the criteria for the commitment of State resources and the existence of an advantage, Hungary disputes the Commission’s statement in recital 42 of the contested decision, that ‘Hungary waives resources it would otherwise have to collect from undertakings with a lower level of relevant turnover (and thus smaller undertakings), if they had been subject to the same level of tax as undertakings with a higher turnover (and thus larger undertakings).’ The advertisement tax does not exempt ‘undertakings with a lower level of relevant turnover’ from any tax burden, because their taxable amount does not reach the brackets from which the higher levels of tax are applicable. As a consequence, those undertakings pay on the ‘lower’ bracket of their taxable amount tax in the same amount as that paid by ‘undertakings with a higher turnover’ on the same bracket of taxable amount.54As regards the comparison of different rates carried out in the contested decision (recitals 50 to 59 of the contested decision), Hungary submits that the Commission cannot create a notional reference system with a single tax rate or with an average tax rate found, nor examine the lawfulness of a Member State’s tax system by comparing it to such a notional system. The Court’s case-law does not allow a derogation from the reference system to be found by relying on another reference system, arbitrarily defined in order to identify an advantage.55It was not, therefore, properly shown that the progressive structure of the advertisement tax grants selective advantages. As the Polish Government also states, that structure, which in the Commission’s view causes it to be selective, does not derogate from the reference system to which it belongs, because it is a component of that system.56Hungary states that there is no differentiation as regards the taxable amount of the advertisement tax and that it is the same average rate which, in a progressive taxation system involving successive bands, applies to anybody with the same taxable amount, so that the tax calculated on that amount is the same. There is, therefore, no derogation from the reference system.57Hungary further states that unlike the tax system concerned by the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), which had been designed to favour a specific group of undertakings, in that case offshore companies (which, in the absence of employees and business premises, were de facto exempt from tax), advertisement tax is paid by each taxpayer according to his turnover on the basis of the rates uniformly applicable on each of the brackets. The two cases are not, therefore, comparable.58Hungary adds that nor is the situation in the present case one in which a tax may be regarded as forming an integral part of a State aid measure, as is identified in the judgment of 27 October 2005, Distribution Casino France and Others (C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04,EU:C:2005:657), when the revenue from that tax is necessarily allocated to financing aid. It notes in that regard that since the revenue from the advertisement tax was entered in the general State budget, it was impossible to determine any specific expenditure financed by that revenue.59The Hungarian Government concludes that since, under the initial rules governing advertisement tax and under those introduced by the 2015 amendment, the amount of the advertisement tax was the same for the same taxable amount, the progressive scale by successive band for that tax entailed neither selectivity nor pecuniary advantage.60The Polish Government, for its part, adds that, even if the progressive tax rates did not form part of the reference system specific to the advertisement tax, they do not favour undertakings which, in the light of the tax’s main objective, are in a comparable factual and legal situation to that of other undertakings. Inasmuch as the structure of those rates is based on progressivity by successive bands, not on overall progressivity, it observes the principle of equality. In the same bracket of turnover, all undertakings are treated in exactly the same way, being subject to the same rate of tax and no category of undertakings can be identified as privileged.61To those arguments that the advertisement tax’s progressivity does not give rise to State aid, the Commission responds that the situations giving rise to the judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), and of 21 December 2016, Commission v World Duty Free Group and Others (C‑20/15 P and C‑21/15 P, EU:C:2016:981), reflect that of the advertisement tax.62It is apparent, in particular, from the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), that it is not sufficient, in order to determine whether a tax measure is selective to the advantage of some undertakings, to examine whether there is a derogation from the reference system’s rules as defined by the Member State concerned itself, but that it must also be ascertained whether the limits or structure of that reference system were defined consistently or, on the contrary, in a clearly arbitrary or biased manner so as to favour those undertakings in the light of the normal objective of that system, which is the case here. The Commission states that, in the judgment referred to, the Court held that the selective advantage from which some undertakings that were exempt from tax benefited, stemmed from the very design of the tax concerned, while its objective was to put in place generalised taxation.63A similar situation is the basis, in recitals 50 to 54 of the contested decision, for the conclusion that Hungary deliberately designed, from the outset, the system of progressive taxation by successive bands applied to the advertisement tax, as a selective reference system, in such a way as to favour some undertakings over others.64The Commission adds the judgment of 27 October 2005, Distribution Casino France and Others (C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657), on the basis of which Hungary seeks to show that lack of hypothecation between the advertisement tax and the financing of specific measures precludes the existence of State aid, is irrelevant because, in the present case, what is in issue is not an aid measure financed by the tax, but the aid which that tax itself provides given its design.65The Commission further contends that a uniform tax rate in each band of the scale does not entail equal treatment of taxable persons, since only those with higher turnovers come within the higher bands, subject to the higher rates. What matters for a taxable person is the average effective rate and total amount of taxation, not whether or not, in a given band, the rate is uniform. Compared with a single-rate tax on the turnover affecting all taxable persons in the same proportion, the progressive advertisement tax imposes overall a higher tax burden on undertakings reaching the highest taxation bands.66The Commission adds that, contrary to Hungary’s submissions, it did not define a new reference system ‘based on an average rate’. The average rate to which it referred is specific to each undertaking, but it described, in recitals 48 and 56 of the contested decision, a single-rate advertisement tax to be used as the reference system, for which there are neither bands nor a progressive rate, which is the only system which, in its view, may avoid discrimination between undertakings which, in the light of the objective pursued by the advertisement tax, are in comparable situations. This reasoning follows that developed by the Court in the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732). The Commission states that while it referred, in the contested decision, to a single-rate advertisement tax not entailing State aid, it left Hungary to decide the level of that rate. This reflected the fact that it did not limit Hungary’s fiscal sovereignty, but only applied the State aid rules.67Referring to recitals 46 to 71 of the contested decision, the Commission recalls more specifically the three-stage analysis that it followed in order to assess the selective nature of the advertisement tax.68As regards the selective nature of the advantage granted, the Commission showed, in the contested decision, that the progressive rates of taxation created a distinction between undertakings with high advertising turnover (namely, large undertakings such as Magyar RTL) and those with low advertising turnover (namely, the smaller undertakings) and therefore resulted in a selective advantage being granted to the latter on the basis of their size (recitals 49 to 56). A non-discriminatory, single-rate turnover tax would mean that an undertaking must pay more the greater its turnover, with all parts of its turnover being subject to a uniform rate. As opposed to taxes based on profit, a turnover-based tax is not intended to take into account — and indeed does not take into account — any of the costs incurred in the generation of that turnover. This is due to the fact that a high turnover does not necessarily entail a high profit and that turnover in itself does not reflect ability to pay.69The Commission recalls that, in its view, in the case of turnover taxes, the existence of several bands and the application of progressive rates of taxation accompanying those bands are justified by the nature of the system only in exceptional cases, that is when the specific objective pursued by a tax requires progressive rates. Progressive turnover taxes would, for example, be justified if the negative externalities created by an activity, which the tax is supposed to tackle, also increase progressively — that is to say, more than proportionately — with turnover. However, Hungary did not provide any justification of the progressivity of the advertisement tax by negative externalities arising from advertisements.70The applicant’s arguments summarised above must be examined.71Article 107(1) TFEU provides that, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the internal market.72It is apparent from settled case-law that the aid referred to in Article 107(1) TFEU is not limited to subsidies, given that it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effects (see, to that effect, judgments of 23 February 1961, De Gezamenlijke Steenkolenmijnen inLimburg v High Authority, 30/59, EU:C:1961:2, p. 39; of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 33; of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 13; and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 71).73Consequently, in tax matters, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU (see, to that effect, judgments of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 14; of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 72; and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 56).74In order to demonstrate the existence of favourable tax treatment reserved for certain undertakings, or in other words characterising the measure at issue as selective, requires assessment of whether, under a particular legal regime, that measure is such as to favour certain undertakings in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (see, to that effect and by analogy, judgment of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 33; see also judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 75 and the case-law cited).75More specifically, according to the method of analysis upheld in the case-law, in order to characterise a favourable tax measure as ‘selective’, it is necessary to begin by identifying and examining the common or ‘normal’ tax system applicable (see, to that effect, judgments of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 57, and of 28 June 2018, Andres (insolvency of Heitkamp BauHolding) v Commission, C‑203/16 P, EU:C:2018:505, paragraph 88 and the case-law cited).76It is in relation to that tax system that it must, secondly, be assessed and, where appropriate, determined whether any advantage granted by the tax measure at issue may be selective, by showing that the measure derogates from the ‘normal’ system in that it differentiates between economic operators who, in light of the objective assigned to the common or ‘normal’ tax system applicable, are in a comparable factual and legal situation (see, to that effect, judgments of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 57). On the other hand, if it is apparent that the tax advantage, in other words the differentiation, is justified by the nature or general structure of the system of which it forms part, it cannot constitute a selective advantage (see, to that effect, judgments of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraph 42; of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraphs 51 and 52; of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 52; of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 83; and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraphs 58 and 60).77It is apparent from the case-law that when reference is made to the nature of the ‘normal’ system, it is the objective attributed to that system which is being referred to, whereas when the general structure of the ‘normal’ system is mentioned, reference is being made to its rules of taxation (see, to that effect, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 81, and of 7 March 2012, British Aggregates v Commission, T‑210/02 RENV, EU:T:2012:110, paragraph 84). It must be noted that the concept of objective or nature of the ‘normal’ tax system mentioned above refers to the basic or guiding principles of that tax system and refers neither to the policies which may, as the case may be, be financed by resources which it provides, nor to the aims which might be sought by establishing derogations from that tax system.78In the present case, the Court must consider, first, the issue of the determination of the ‘normal’ tax system against which the existence of a selective advantage must as a rule be examined.79The Court points out, in so far as the Commission refers in particular in the contested decision to the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), that the three taxes the subject of the cases giving rise to that judgment constituted together the general taxation scheme for all companies established in Gibraltar, whereas, in the present case, the measure described by the Commission as State aid is part of the framework of a specific sectoral tax concerning the broadcasting or publication of advertisements. The ‘normal’ tax system cannot, therefore, in any event, exceed that sector (see, to that effect and by analogy, judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraphs 54 to 63).80Hungary correctly maintains that rates of taxation cannot be excluded from the content of a tax system, as the Commission did (see recital 48 of the contested decision). Whether tax is levied at a single rate or at a progressive rate, the tax rate forms part of the fundamental characteristics of a tax levy’s legal regime, just as the basis of assessment, the taxable event and the group of taxable persons do. As the Polish Government argues, the Commission itself states, in point 134 of the Notice on the notion of State aid as referred to in Article 107(1) [TFUE] (OJ 2016 C 262, p. 1), that, ‘in the case of taxes, the reference system is based on such elements as the tax base, the taxable persons, the taxable event and the tax rates’. In the absence of the tax rate enabling the structure of the ‘normal’ system to be determined, it is indeed impossible to examine whether there is a favourable derogation to the advantage of certain undertakings (see, to that effect, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56, and of 7 March 2012, British Aggregates v Commission, T‑210/02 RENV, EU:T:2012:110, paragraph 52). That is why if, in the context of the same tax, certain undertakings are subject to different tax rates, including different exemptions, from other undertakings, it is necessary to determine the ‘normal’ situation relevant, which forms part of the ‘normal’ system, without whose identification the method referred to in paragraphs 75 and 76 above cannot be applied.81It is apparent moreover from the contested decision and the Commission’s arguments in defence that the latter sought to identify a ‘normal’ system involving a tax structure, which it could refer to. It is apparent, in particular, from recitals 52 and 53 of the contested decision that, for the Commission, that system had to be one in which the undertakings’ turnover is taxed at a single rate, regardless of its amount. The Commission shows indeed that it regretted that the Hungarian authorities failed to indicate a value for that single rate to it (recital 52 of the contested decision) and it even suggested that the 5.3% rate be chosen for all advertisement turnovers (recitals 91 and 93 of the contested decision). It must, however, be stated that the ‘normal’ single-rate system referred to by the Commission in some passages of the contested decision is a hypothetical system which could not be sustained. The analysis of whether a tax advantage is selective, which occurs at the second stage of the method referred to in paragraphs 75 and 76 above, must be carried out in the light of the actual features of the ‘normal’ tax system of which it forms part, identified during the first stage of that method, not in the light of assumptions not sustained by the competent authority.82Consequently, the Commission identified, in the contested decision, a ‘normal’ system which was either incomplete, without any tax rate, or hypothetical, with a single tax rate, which constitutes an error of law.83Having regard to the progressive nature of the tax at issue and the absence of differentiated scales of rates for certain undertakings, the only ‘normal’ system which could be chosen in the present case was, as the Hungarian Government maintains, the advertisement tax in itself, with its structure including its single scale of progressive rates and successive bands.84However, even though the Commission erred in the identification of the relevant ‘normal’ tax system, it must be ascertained whether the conclusion it reached is justified by other grounds in the contested decision which would enable the existence of a selective advantage in favour of certain undertakings to be identified.85The Commission did not simply consider that the progressive structure of the taxation at issue derogated from a ‘normal’ system, in this case identified incompletely or hypothetically, but it also, in essence, based the existence of a selective advantage in favour of undertakings with a low level of turnover on the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), which concerned a tax system in itself discriminatory in the light of the objective it was supposed to pursue, that is to say in the light of its nature. In the present case, the Commission considered that the structure of the advertisement tax, with its progressive rates and successive bands, was contrary to the objective pursued by that tax and produced in that regard discriminatory effects between undertakings in that sector. The Court must, therefore, examine whether that assessment is well founded.86Accordingly, in paragraph 49 of the contested decision, the Commission stated that ‘it [wa]s also necessary to evaluate whether the boundaries of that system have been designed by the Member State in a consistent manner or, conversely, in a clearly arbitrary or biased way, so as to favour certain undertakings over others’. In recital 51 of the contested decision, it stated that ‘the effect of the progressive rate structure introduced by the Act [wa]s therefore that different undertakings [we]re subject to different levels of taxation (expressed as a proportion of their overall annual advertisement turnover) depending on their size, since the amount of advertisement turnover achieved by an undertaking correlate[d] to a certain extent with the size of that undertaking’. In recital 54 of the contested decision, the Commission also stated that ‘the reference system [wa]s therefore [from the outset] selective by design in a way that [wa]s not justified in light of the objective of the advertisement tax, which [wa]s to promote the principle of public burden sharing and collect funds for the State budget’.87However, the objective of collecting funds for the budget, mentioned by the Commission, is common to all unallocated taxes, which account for the bulk of the taxation systems, and is insufficient, in itself, to determine the nature of the various taxes, for example according to the type of taxable person concerned, whether the taxes are general or sectoral, or according to a specific objective they may pursue, for example as regards taxes seeking to reduce certain damage to the environment (ecotaxes). Moreover, the progressive structure of a tax rate cannot as such be contrary to the objective of collecting budgetary revenue. Similarly, the objective of promoting public burden sharing is very general and could be put forward for most taxes. It cannot, therefore, be the specific objective of a tax.88It is apparent from the documents in the case that the Law on Advertisement Tax established a tax on the turnover of broadcasters or publishers of advertisements, which the Hungarian authorities wished to associate with a redistributive aim, as stated in recital 33 of the contested decision. Since no other specific aim, for example seeking to offset or deter the occurrence of negative effects likely to be caused by the activity at issue was put forward, it must be found that that was the national legislature’s objective. In the contested decision, the Commission specifically took the view that a redistributive purpose taking the form of a progressive taxation structure was incompatible with a turnover tax, so as to find that that objective could not be chosen in order to examine whether there were selective advantages.89However, contrary to the Commission’s submissions, the scheme of the advertisement tax, characterised by a progressive tax structure, was a priori consistent with the Hungarian authorities’ objective, even though the tax at issue was a turnover tax. It may reasonably be presumed that an undertaking which achieves a high turnover may, because of various economies of scale, have proportionately lower costs than an undertaking with a smaller turnover — because fixed unit costs (buildings, property taxes, plant, staff costs for example) and variable unit costs (raw material supplies for example) decrease with levels of activity — and that it may, therefore, have proportionately greater disposable revenue which makes it capable of paying proportionately more in terms of turnover tax.90Consequently, the Commission made a further error as regards identifying the advertisement tax’s objective, which was indeed to establish sectoral taxation on turnover in accordance with a redistributive purpose, as set out by the Hungarian authorities.91At the present stage of the analysis, the issue is whether the Commission was still able, notwithstanding the two errors identified above as regards the definition of the reference system and its objective, to discern correctly elements showing the existence of selective advantages in the advertisement tax taking into account the reference system and that tax’s objective mentioned in paragraphs 83 and 88 above, as resulting from the Law on Advertisement Tax. More specifically, the issue is whether the Commission has shown that the tax structure chosen by the Hungarian authorities was contrary to that system’s objective.92It must be borne in mind that the EU Courts have on numerous occasions ruled on whether there are selective advantages within tax systems, or more generally compulsory contribution systems, which were characterised by rules varying those contributions according to the situation of the person liable. In that regard, the fact that a tax is characterised by a progressive tax structure, deductions, ceilings or other variation mechanisms and different effective levels of taxation result therefrom, depending on the size of the taxpayer’s taxable amount or the parameters of the variation mechanisms invoked, does not necessarily convey the existence of a selective advantage in favour of certain undertakings, as is apparent from the case-law referred to in paragraphs 73 to 77 above.93That statement may be illustrated in particular by various specific examples related to the question formulated in paragraph 91 above, which show the circumstances in which the existence of a derogation from the application of the ‘normal’ system may be identified because a measure varying the tax at issue fails to have regard to the nature of that regime, that is to say its objective.94Consequently, such a derogation has been identified in the judgments of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraphs 49 to 55); of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 86 and 87); of 26 April 2018, ANGED (C‑233/16, EU:C:2018:280); of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 85 to 108); and of 21 December 2016, Commission v World Duty Free Group and Others (C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraphs 58 to 94, read in conjunction with paragraph 123 thereof), with the first judgment concerning a limitation, the following three judgments exemptions and the last of the judgments reductions in the taxable amount. The Court has thereby held, in the light of the objectives of the taxes concerned — which sought (i) to combat negative externalities, in particular environmental ones, as regards the first three judgments, (ii) the establishment of a general taxation system for all undertakings as regards the following judgment and (iii) the amortisation, for the purpose of corporation tax, of the goodwill resulting from the acquisition of company assets in certain circumstances as regards the last of the judgments — that the advantages which were reserved to some of the undertakings, but not others, in a similar situation in relation to those objectives, were, therefore, selective.95It is apparent from those judgments that, regardless of whether the objective of the tax includes a purpose linked to the impact of the activity of the undertakings liable to tax, or the advantage concerns a specific economic sector in relation to the other undertakings subject to tax or a specific form of operating companies, or even whether the advantage is potentially open to any undertaking subject to tax, if that advantage leads to differences in treatment which are contrary to the objective of the tax, it is selective. However, the objective of a tax may itself include a variation seeking to apportion the tax effort or limit its impact. Specific situations which distinguish certain taxable persons from others may also be taken into account without the tax’s objective being disregarded.96In that respect, in the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraphs 33 to 36), referred to in paragraph 94 above, the Court stated that the partial rebate of taxes on the energy consumed by undertakings, applicable when those taxes exceeded a certain threshold of the net value of what those enterprises produced, did not constitute State aid if it benefited all undertakings subject to those taxes regardless of their activity, while it could lead to different levels of taxation between undertakings consuming the same amount of energy.97Similarly, in the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 77 to 83), referred to in paragraph 94 above, the Court held that the advantages which could arise from a generalised capping of two taxes on undertakings, not based on profit, to 15% of profit, leading to undertakings with the same tax base potentially paying different tax, were established on the basis of objective criteria irrespective of the choices of the undertakings concerned and were not, therefore, selective.98In the judgment of 8 September 2011, Paint Graphos and Others (C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 48 to 62), the Court ruled that, in the context of the tax on company profits, which constituted the ‘normal’ system in that case, the total exemption enjoyed by cooperative societies did not constitute a selective advantage because they were not in a comparable factual and legal situation to that of commercial companies, provided that it was verified that they did indeed act under the conditions inherent to being a cooperative, implying, in particular, a profit margin considerably lower than that of capital companies.99In the judgment of 29 March 2012, 3M Italia (C‑417/10, EU:C:2012:184, paragraphs 37 to 44), the Court held, taking into account also the specific situation of certain undertakings, that a mechanism for concluding at a standard rate old tax proceedings, available to undertakings meeting objective criteria not placing them in a factual and legal situation comparable to that of other undertakings, did not entail a selective advantage, even if it could lead to the beneficiaries of that mechanism paying less tax, all other things being equal moreover, than other undertakings.100Similarly, in the judgment of 26 April 2018, ANGED (C‑233/16, EU:C:2018:280), referred to in paragraph 94 above, the Court stated that, in the context of a tax on retail establishments, whose basis of assessment was essentially constituted by the sales area and which sought to offset negative externalities for the environment and town and country planning, the 60% reduction or total exemption enjoyed by establishments carrying on certain activities and those whose sales surface was below a given threshold did not constitute State aid if it was verified that those various establishments were indeed in a different situation from those of the other establishments subject to tax, having regard to the impacts which the tax at issue sought to correct and offset, that is to say in the light of the objectives of that tax.101Those examples confirm that there are taxes whose nature does not preclude them from being accompanied by variation mechanisms, which may extend as far as exemptions, without those mechanisms leading, however, to selective advantages being granted. In short, there is no selectivity if those differences in taxation and the advantages which may flow therefrom, even if justified only by the purpose governing the apportionment of tax between taxpayers, stem from the straightforward application, without derogation, of the ‘normal’ system, if comparable situations are treated comparably and if those variation mechanisms do not misconstrue the objective of the tax concerned. Similarly, special provisions laid down for certain undertakings by reason of situations specific to them, causing them to benefit from a variation in, or even an exemption from, tax, must not be analysed as constituting a selective advantage if those provisions do not contravene the objective of the tax in question. In that regard, the fact that only taxpayers meeting the conditions for the application of a measure can benefit from the measure cannot, in itself, make it into a selective measure (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 59 and the case-law cited). Such mechanisms fulfil the condition of complying with the nature and general structure of the system of which they form part, referred to in paragraph 76 above.102On the other hand, if undertakings in a comparable situation in the light of the objective of the tax or the purpose justifying a variation thereof are not treated equally in that regard, that discrimination gives rise to a selective advantage which may constitute State aid if the other conditions laid down in Article 107(1) TFEU are met.103Accordingly, in particular, progressive tax structures, including significant reductions to the basis of assessment, which are not exceptional in the Member States’ tax systems, do not in themselves imply the existence of State aid. In its Notice on the notion of State aid (see paragraph 80 above), the Commission states in that regard, in point 139, that the progressive nature of income tax may be justified by its redistributive purpose. However, there is no basis for limiting that type of assessment, as the Commission did in recitals 68 and 69 of the contested decision, to taxes on income or those seeking to offset and deter certain negative effects likely to be caused by the activity concerned, and to exclude that assessment for taxes applying to the undertakings’ activity, not their net revenue or profit. It is not apparent from the case-law referred to in paragraphs 73 to 77 above that, in order for a measure varying a tax not to be characterised as a selective advantage, a Member State could have recourse only to variation criteria limited to certain aims, such as the redistribution of wealth or the offsetting or deterrence of negative externalities. What is necessary to that end is that the variation wished must not be arbitrary, contrary to what occurred in the case giving rise to the judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757), mentioned in paragraph 94 above, that it must be applied in a non-discriminatory manner and must remain consistent with the objective of the tax concerned. For example, the variation mechanisms referred to in paragraphs 96, 97 and 99 above, which were not held to be selective by the Court, did not reflect a taxation purpose proportional to negative externalities, nor indeed a redistributive purpose, but other aims. In addition, as pointed out in paragraph 89 above, it cannot be excluded that a redistributive purpose may also justify the progressivity of a turnover tax, as the Government of Hungary rightly maintains in the present case. A redistributive purpose may indeed even justify a total exemption for some undertakings as shown by the case mentioned in paragraph 98 above.104Consequently, as regards a turnover tax, a variation criterion taking the form of progressive taxation above a certain threshold — even if that threshold is a high one — which may reflect the wish to tax an undertaking’s activity only when that activity reaches a certain level, does not in itself imply the existence of a selective advantage.105It follows, therefore, from paragraphs 91 to 104 above that the Commission was not entitled to infer the existence of selective advantages accompanying the advertisement tax solely from the progressive structure of that new tax.106However, if it were proven by the Commission in the contested decision that the progressive taxation structure actually chosen was adopted in a manner which largely deprives the objective of the tax in question of its substance, it could be considered that the advantage which may be derived by undertakings benefiting from zero or low taxation compared with other undertakings is selective.107It must, therefore, be further ascertained whether the Commission provided such proof in the contested decision.108In that regard, in recital 60 of the contested decision, the Commission stated that the data on the tax advance payments submitted by the Hungarian authorities on 17 February 2015 showed that the two highest tax brackets, 30% and 40% applied only to one undertaking in 2014 and that that undertaking paid approximately 80% of the tax advances. It found that those figures demonstrated the concrete effects of the difference in treatment of undertakings under the Law on Advertisement Tax and the selective nature of its progressive rates.109However, that finding of fact was not accompanied by reasoning other than that directed at the very principle of progressive taxation and is therefore, in any event, insufficient to amount to reasoning capable of establishing that the progressive structure chosen in the present case for the tax concerned was incompatible with its objective.110In addition, the Commission did indeed state in the contested decision that the progressive taxation structure of the advertisement tax led to undertakings in a comparable factual and legal situation being treated differently, in other words that it led to discriminatory treatment. However, it relied principally in that regard only on the fact that the undertakings’ average effective rate and in the marginal rate of tax had to vary according to their turnover and size (recitals 50, 51, 58 and 59 of the contested decision). That variation in the average effective rate and marginal rate according to the size of the taxable amount is an integral part of any taxation system with a progressive structure and such a system is not, as set out in paragraph 104 above, as such and by virtue of that fact alone, such as to give rise to selective advantages. Moreover, when a tax’s progressive taxation structure reflects the objective pursued by that tax, it cannot be considered that two undertakings with a different taxable amount are in a comparable factual situation in the light of that objective.111Consequently, having regard to the Commission’s errors as regards (i) the definition of the ‘normal’ tax system, (ii) its objective and (iii) the inherent existence, in its view, of selective advantages in a structure of progressive taxation on turnover, the Commission failed to prove, in the contested decision, that there were selective advantages, and thus State aid, on the basis of the progressive structure of the advertisement tax, whether in relation to its initial version or that resulting from the 2015 amendment. The reduction of the taxable amount as a result of the deductibility in 2014 of 50% of the losses carried forward for loss-making undertakings in 2013 112According to Hungary, the reduction of the taxable amount in question does not entail a selective advantage for any undertaking. It is the equivalent of the reduction for losses over earlier years from the taxable amount of the corporation tax to which profit-making companies in 2013 could resort in any event. Consequently, the reduction of the taxable amount for losses existed without distinction for any person subject to the advertisement tax, whether profit making or not in 2013. The possibility of reducing the taxable amount of the new advertisement tax reflected the concern to limit for the first year of taxation the burden of undertakings already loss making, as explained by the Hungarian authorities at the stage of the Commission’s preliminary assessment of that tax, as stated in recital 33 of the contested decision. In that regard, Hungary submits that the loss-making undertakings in 2013 were not in a comparable situation to that of profit-making undertakings in 2013, as regards their tax obligations for the 2014 financial year.113In addition, Hungary submits that the cases giving rise to the judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732), and of 21 May 2015, Pazdziej (C‑349/14, EU:C:2015:338), vindicate its position. In the second judgment, the Court held that legislation which, in the context of a tax having a basis of assessment other than income, implemented taxation which nonetheless took income into account, was acceptable in the light of EU law. Hungary infers from this that it cannot be precluded that a rule may be established allowing an advantage based on criteria not linked to the taxable amount of the tax concerned to be conferred, without, however, granting State aid. The first judgment also illustrates the possibility of varying a tax on the basis of criteria not linked to the taxable amount and thus enables it to be argued that the reduction in the taxable amount at issue amounts to a general tax measure, because it applies without distinction to all undertakings according to an objective criterion linked to their profitability.114In response to those arguments, the Commission states that the examination of selectivity in relation to the reference system must be carried out in relation to the advertisement tax, not in the light of the Hungarian tax system as a whole taking into account corporation tax. The measure at issue confers a selective advantage, because it enables the taxable amount of the advertisement tax to be reduced and, thus, the tax burden of the undertakings concerned compared with those which are unable to benefit from that reduction. In that regard, the Commission contends that the deduction of pre-existing losses as at the time of enactment of the Law on Advertisement Tax gives rise to selectivity, first, because it cannot be considered an integral part of the reference system, as set out in recital 55 of the contested decision and, secondly, because it may favour certain undertakings having considerable losses carried forward, in derogation from the reference system, as set out in recitals 62 to 64 of the contested decision. The introduction of the advertisement tax during the course of the year, which Hungary, with a concern for tax moderation the first year, also relies on in order to justify the measure, did not only affect the financial plans of loss-making taxable persons in 2013, but also the plans of those that were profit making that year. Both groups of undertakings are in a comparable situation in the light of the tax’s objective. In addition, the Commission states that, contrary to profit-based taxes, the advertisement tax is based on the taxation of turnover. Costs, and therefore losses, are not generally deductible from such a basis of assessment, as is set out in recital 62 of the contested decision.115According to the Commission, the judgments relied on by Hungary do not support the latter’s arguments. In particular, the Commission explains that the Hungarian advertisement tax system is not similar to the French residence tax system at issue in the judgment of 21 May 2015, Pazdziej (C‑349/14, EU:C:2015:338), which, in the Commission’s view, was a wealth tax. Since the basis of assessment of the advertisement tax is turnover, the deduction of losses carried forward is not linked to that basis of assessment but to a factor totally extraneous to it, profit. The internal logic of the tax does not, therefore, justify the deductibility of losses.116The Commission adds that, in any event, the selectivity of that measure is shown by the fact that the deduction of the losses was limited, in terms of time, to the tax payable in 2014, and notes that it was restricted, in terms of persons, solely to loss-making undertakings in 2013.117The Court must reject, first of all, Hungary’s arguments which refer to the possibility in parallel to that at issue, for profit-making undertakings in 2013 to deduct their earlier losses from the taxable amount of the tax on profits. Those arguments are ineffective for the purposes of determining whether there is a selective advantage within the only reference system to be taken into account, namely the advertisement tax with its successive bands (see, to that effect, judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraphs 54 and 55). The question is solely whether the reduction in the taxable amount for non-profitmaking undertakings in 2013 introduces into that system an element contrary to its objective and discriminatory, conferring a selective advantage, as the Commission maintains following its analysis in recitals 62 to 65 of the contested decision.118In that regard, in the light of what has been stated in paragraphs 95 and 101 above, it must be borne in mind that even if not stemming from the actual nature of the reference tax system, that is from its objective, certain tax variations, taking into account specific situations, must not be analysed as constituting a selective advantage if those provisions do not contravene the objective of the tax in question and are not discriminatory.119In the present case, first, it is incorrect to consider, as the Commission essentially does in recital 62 of the contested decision, that the reduction in the taxable amount could as a matter of principle confer a selective advantage on the ground that, since taxation of turnover is concerned, ‘costs are normally not deductible from the tax base of a turnover tax’.120As noted in paragraph 97 above, the Court held in the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 77 to 83), that the capping of taxation established on the basis of objective criteria irrespective of the choices of the undertakings concerned, in other words of random events, was not selective, including where those criteria were unconnected with the basis of assessment in question, as is apparent in particular from paragraphs 81 and 83 of that judgment. It may be observed that one of the criteria conferring entitlement to the cap on the tax examined and held not to be selective in that judgment was precisely not having generated any profit, while the basis of assessment for the tax concerned was different. The same should logically apply in the case not of a cap, but of a reduction in the basis of assessment, as in the present case. In addition, the concern which the Hungarian legislature sought to address, which the Commission described in the contested decision and is referred to in paragraph 112 above, cannot be considered contrary to the advertisement tax’s objective mentioned in paragraph 90 above. The latter includes a redistributive purpose with which the reduction in the basis of assessment chosen in order to reduce the tax burden on undertakings that were loss making the tax year preceding the year of taxation is consistent.121Secondly, it is apparent also from the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 77 to 83), that the Commission incorrectly maintains, in recital 63 of the contested decision, that the measure introduces in the present case an arbitrary differentiation between different groups of undertakings in a comparable legal and factual situation in so far as the possibility of deducting from the taxable amount of the advertisement tax for 201450% of the losses carried forward was restricted to undertakings not having generated profits in 2013.122The distinguishing criterion chosen by the Hungarian authorities of not having generated profits in 2013 is objective. It is whether the undertakings concerned met that criterion which is random. Lastly, in the light of the Hungarian legislature’s objective of introducing sectoral taxation with a redistributive purpose, that criterion, which is intended to ensure in the first year of the advertisement tax’s introduction a moderate tax burden for taxable persons in an unfavourable situation, establishes a difference in treatment between undertakings not in a similar situation: the profit-making undertakings in 2013 and undertakings not having made profits that year. It may indeed be found that the distinguishing criterion chosen by the Hungarian legislature can, in the light of certain specific situations of undertakings with losses of the same order for 2013 and the preceding years, result in the existence of ‘threshold’ effects if they were also close to equilibrium in 2013, but such effects are inherent in numerous variation mechanisms which necessarily involve limits, and it cannot be inferred from that fact alone that such mechanisms confer selective advantages.123Lastly, the fact that the advantage at issue was laid down only for the tax for the first tax year in which the tax at issue was applied, not the following tax years, cannot support the finding that undertakings which benefited from that advantage that first year were assisted compared with undertakings which could have benefited from the same advantage had it been retained for the following years. The legislature is not required to prolong a tax advantage and, in that regard, the situations between two different tax years cannot be compared. Moreover, the Commission did not defend that idea in the contested decision, but only advanced it in the rejoinder.124It must, therefore, be concluded that the Commission was not correct to identify a discriminatory element contrary to the advertisement tax’s objective, constituting a selective advantage characterising State aid, in the deduction from the basis of assessment — for the first tax year of the advertisement tax’s application — of 50% of the losses carried forward for undertakings not making a profit in 2013.125It is apparent from all the foregoing that the contested decision must be annulled in its entirety, and there is no need to examine the Hungarian Government’s other pleas in law and arguments. Costs 126Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay Hungary’s costs, in accordance with the form of order sought by the latter, including those relating to the proceedings for interim measures.127Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. The Republic of Poland must, therefore, bear its own costs.On those grounds,THE GENERAL COURT (Ninth Chamber)hereby: 1. Annuls Commission Decision (EU) 2017/329 of 4 November 2016 on the measure SA.39235 (2015/C) (ex 2015/NN) implemented by Hungary on the taxation of advertisement turnover; 2. Orders the European Commission to bear its own costs and to pay those incurred by Hungary, including those relating to the proceedings for interim measures; 3. Orders the Republic of Poland to bear its own costs. GervasoniMadiseda Silva PassosDelivered in open court in Luxembourg on 27 June 2019.[Signatures]( *1 ) Language of the case: Hungarian. | a560f-ec28610-4010 | EN |
Advocate General Tanchev: the newly-created Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence established by EU law | 19 November 2019 ( *1 ) ( i )Table of contentsLegal contextEuropean Union lawThe EU TreatyThe CharterDirective 2000/78Polish lawThe ConstitutionThe New Law on the Supreme Court– The provisions lowering the retirement age for judges of the Sąd Najwyższy (Supreme Court)– Provisions on the appointment of judges to the Sąd Najwyższy (Supreme Court)– Provisions on the Disciplinary ChamberLaw on the system of administrative courtsThe Law on the KRSThe disputes in the main proceedings and the questions referred for a preliminary rulingProcedure before the CourtConsideration of the questions referredThe first question in Cases C‑624/18 and C‑625/18The questions in Case C‑585/18 and the second and third questions in Cases C‑624/18 and C‑625/18The jurisdiction of the CourtWhether it is necessary to give a rulingAdmissibility of the second and third questions in Cases C‑624/18 and C‑625/18The substance of the second and third questions in Cases C‑624/18 and C‑625/18Costs(Reference for a preliminary ruling — Directive 2000/78/EC — Equal treatment in employment and occupation — Non-discrimination on the ground of age — Lowering of the retirement age of judges of the Sąd Najwyższy (Supreme Court, Poland) — Article 9(1) — Right to a remedy — Article 47 of the Charter of Fundamental Rights of the European Union — Effective judicial protection — Principle of judicial independence — Creation of a new chamber of the Sąd Najwyższy (Supreme Court) with jurisdiction inter alia for cases of retiring the judges of that court — Chamber formed by judges newly appointed by the President of the Republic of Poland on a proposal of the National Council of the Judiciary — Independence of that council — Power to disapply national legislation not in conformity with EU law — Primacy of EU law)In Joined Cases C‑585/18, C‑624/18 and C‑625/18,THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland), made by decisions of 30 August 2018 (C‑585/18) and of 19 September 2018 (C‑624/18 and C‑625/18), received at the Court on 20 September 2018 (C‑585/18) and 3 October 2018 (C‑624/18 and C‑625/18), in the proceedings A. K. v Krajowa Rada Sądownictwa (C‑585/18),and CP (C‑624/18), DO (C‑625/18) Sąd Najwyższy, third party: Prokurator Generalny, represented by the Prokuratura Krajowa,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Prechal (Rapporteur), E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, and N. Piçarra, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit, and R. Schiano, Administrator,having regard to the written procedure and further to the hearings on 19 March and 14 May 2019,after considering the observations submitted on behalf of:–A. K., CP and DO, by S. Gregorczyk-Abram and M. Wawrykiewicz, adwokaci,the Krajowa Rada Sądownictwa, by D. Drajewicz, J. Dudzicz, and D. Pawełczyk-Woicka,the Sąd Najwyższy, by M. Wrzołek-Romańczuk, radca prawny,the Prokurator Generalny, represented by the Prokuratura Krajowa, by S. Bańko, R. Hernand, A. Reczka, T. Szafrański and M. Szumacher,the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents, and by W. Gontarski, adwokat,the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,the European Commission, by H. Krämer and by K. Herrmann, acting as Agents,the EFTA Surveillance Authority, by J.S. Watson, C. Zatschler, I.O. Vilhjálmsdóttir and C. Howdle, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 27 June 2019,gives the following Judgment 1These requests for a preliminary ruling concern the interpretation of Article 2 and of the second subparagraph of Article 19(1) TEU, of the third paragraph of Article 267 TFEU, of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).2The requests have been made in proceedings between, on the one hand, A. K., Judge of the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) and the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’) (Case C‑585/18) and, on the other, CP and DO, Judges of the Sąd Najwyższy (Supreme Court, Poland), and that court (Cases C‑624/18 and C‑625/18) concerning their early retirement due to the entry into force of new national legislation. Legal context European Union law The EU Treaty 3Article 2 TEU reads as follows:‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’4Article 19(1) TEU provides:‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ The Charter 5Title VI of the Charter, under the heading ‘Justice’, includes Article 47 thereof, entitled ‘Right to an effective remedy and to a fair trial’, which states as follows:‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ……’6Under Article 51 of the Charter, under the heading ‘Scope’:‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They must therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the European Union as conferred on it in the Treaties.2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’7Article 52(3) of the Charter states:‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’8The Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) point out that the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). Directive 2000/78 9Article 1 of Directive 2000/78 provides:‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of … age … as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’10Article 2(1) of that directive provides:‘For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.’11Article 9(1) of Directive 2000/78 states:‘Member States shall ensure that judicial and/or administrative procedures … for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.’ Polish law The Constitution 12Under Article 179 of the Constitution, the President of the Republic of Poland (‘the President of the Republic’) shall appoint judges, on a proposal of the KRS, for an indefinite period.13Under Article 186(1) of the Constitution:‘The [KRS] shall be the guardian of the independence of the courts and of the judges.’14Article 187 of the Constitution provides:‘1. The [KRS] shall be composed of:(1)the First President of the [Sąd Najwyższy (Supreme Court)], the Minister for Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] and a person designated by the President of the Republic,(2)Fifteen elected members from among the judges of the [Sąd Najwyższy (Supreme Court)], the ordinary courts, the administrative courts and the military courts,(3)Four members elected by [the Sejm (Lower Chamber of the Polish Parliament)] from among the members [of the Lower Chamber] and two members elected by the Senate from among the senators.…3. The elected members of the [KRS] shall have a mandate of four years.4. The regime applicable to the [KRS] … and the procedure by which its members are elected shall be laid down by law.’ The New Law on the Supreme Court – The provisions lowering the retirement age for judges of the Sąd Najwyższy (Supreme Court) 15Article 30 of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 23 November 2002 (Dz. U. of 2002, item 240) set the retirement age for judges of the Sąd Najwyższy (Supreme Court) at 70 years.16On 20 December 2017, the President of the Republic signed the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) (‘the New Law on the Supreme Court’), which entered into force on 3 April 2018. That law was subsequently amended on several occasions.17Under Article 37 of the New Law on the Supreme Court:‘1. Judges of the [Sąd Najwyższy (Supreme Court)] shall retire on the day of their 65th birthday, unless they make a statement, no earlier than 12 months and no later than 6 months before reaching [the age of 65], indicating their desire to continue to perform their duties, and submit a certificate, drawn up under the conditions applicable to candidates applying for a judge’s post, confirming that their state of health allows them to serve, and the [President of the Republic] consents to their continuing to perform their duties at the [Sąd Najwyższy (Supreme Court)].1a. Prior to granting such authorisation, the [President of the Republic] shall consult the [KRS]. The [KRS] shall provide the [President of the Republic] with an opinion within 30 days of the date on which the [President of the Republic] requests submission of such an opinion. If the opinion is not submitted within the period referred to in the second sentence, the [KRS] shall be deemed to have submitted a positive opinion.1b. When providing the opinion referred to in paragraph 1a, the [KRS] shall take into account the interest of the judicial system or an important public interest, in particular the rational distribution of members of the [Sąd Najwyższy (Supreme Court)] or the needs arising from the workload of individual chambers of the [Sąd Najwyższy (Supreme Court)].4. The authorisation referred to in paragraph 1 shall be granted for a period of three years, no more than twice. …’18Article 39 of that law provides:‘The [President of the Republic] shall declare the date on which a judge of the [Sąd Najwyższy (Supreme Court)] retires or is retired.’19Under Article 111(1) of that law:‘Judges of the [Sąd Najwyższy (Supreme Court)] who by the date of entry into force of this law have reached the age of 65 or who will have reached the age of 65 within three months of the date of entry into force of this law shall retire on the day following the expiry of that three-month period, unless they submit the declaration and certificate referred to in Article 37(1) within one month of the date of entry into force of this law and the [President of the Republic] grants authorisation for those judges of the [Sąd Najwyższy (Supreme Court)] to continue to carry out their duties. …’– Provisions on the appointment of judges to the Sąd Najwyższy (Supreme Court) 20Under Article 29 of the New Law on the Supreme Court, judges shall be appointed to the Sąd Najwyższy (Supreme Court) by the President of the Republic acting on a proposal from the [KRS]. Article 30 of that law sets out the conditions which a person must satisfy in order to qualify for the post of judge of the Sąd Najwyższy (Supreme Court).– Provisions on the Disciplinary Chamber 21The New Law on the Supreme Court created a new chamber within the Sąd Najwyższy (Supreme Court) known as the ‘Izba Dyscyplinarna’ (‘the Disciplinary Chamber’).22Article 20 of the New Law on the Supreme Court states:‘With regard to the Disciplinary Chamber and the judges who adjudicate in it, the powers of the First President of the [Sąd Najwyższy (Supreme Court)] as defined in:Article 14(1)(1), (4) and (7), Article 31(1), Article 35(2), Article 36(6), Article 40(1) and (4) and Article 51(7) and (14) shall be exercised by the President of the [Sąd Najwyższy (Supreme Court)] who shall direct the work of the Disciplinary Chamber;Article 14(1)(2) and the second sentence of Article 55(3) shall be exercised by the First President of the [Sąd Najwyższy (Supreme Court)] in agreement with the President of the [Sąd Najwyższy (Supreme Court)] who shall direct the work of the Disciplinary Chamber.’23Article 27(1) of the New Law on the Supreme Court states:‘The following cases shall fall within the jurisdiction of the Disciplinary Chamber:disciplinary proceedings:involving [Sąd Najwyższy (Supreme Court)] judgesproceedings in the field of labour law and social security involving [Sąd Najwyższy (Supreme Court)] judges;proceedings concerning the compulsory retirement of a [Sąd Najwyższy (Supreme Court)] judge.’24Article 79 of the New Law on the Supreme Court provides:‘Labour law and social insurance cases concerning [Sąd Najwyższy (Supreme Court)] judges and cases relating to the retirement of a [Sąd Najwyższy (Supreme Court)] judge shall be heard:at first instance by one judge of the Disciplinary Chamber of the [Sąd Najwyższy (Supreme Court)];at second instance by three judges of the Disciplinary Chamber of the [Sąd Najwyższy (Supreme Court)].’25Under Article 25 of the New Law on the Supreme Court:‘The Izba Pracy i Ubezpieczeń Społecznych [Labour and Social Insurance Chamber] shall have jurisdiction to hear and rule on cases concerning labour law, social insurance …’26The transitional measures of the New Law on the Supreme Court include inter alia the following provisions:‘Article 131Until all of the judges of the [Sąd Najwyższy (Supreme Court)] have been appointed to the Disciplinary Chamber, the other judges of the [Sąd Najwyższy (Supreme Court)] cannot sit within that chamber.Article 134On entry into force of the present law, the judges of the [Sąd Najwyższy (Supreme Court)] sitting in the Labour, Social Insurance and Public Affairs Chamber shall sit in the Labour and Social Insurance Chamber.’27Under Article 1(14) of the ustawa o zmianie ustawy o Sądzie Najwyższym (Law amending the Law on the Supreme Court), of 12 April 2018 (Dz. U. of 2018, item 847), which entered into force on 9 May 2018, Article 131 of the New Law on the Supreme Court was amended as follows:‘Judges who, on the date of the entry into force of the present law, occupy posts in other Chambers of the [Sąd Najwyższy (Supreme Court)], may be transferred to posts in the Disciplinary Chamber. Until all judges of the [Sąd Najwyższy (Supreme Court)] sitting in the Disciplinary Chamber have been appointed for the first time, a judge occupying a post in another chamber of the [Sąd Najwyższy (Supreme Court)] may submit a request [to the KRS] to be transferred to a post in the Disciplinary Chamber, after having obtained the consent of the First President of the [Sąd Najwyższy (Supreme Court)] and of the President of the [Sąd Najwyższy (Supreme Court)] responsible for directing the work of the Disciplinary Chamber and of the President of the chamber in which the applicant judge occupies a position. On a proposal [from the KRS], the [President of the Republic] shall appoint a judge of the [Sąd Najwyższy (Supreme Court)], to the Disciplinary Chamber, until the date on which all posts within that chamber have been filled for the first time.’ Law on the system of administrative courts 28Article 49 of the ustawa — Prawo o ustroju sądów administracyjnych (Law on the system of administrative courts) of 25 July 2002 (Dz. U. of 2017, item 2188) provides that, as regards aspects which are not governed by that law, the provisions of the New Law on the Supreme Court are to be applied. The Law on the KRS 29The KRS is governed by the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. No 126 of 2011, item 714), as amended by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3) (‘Law on the KRS’).30Under Article 9a of the Law on the KRS:‘1. The Lower Chamber [of the Polish Parliament] shall elect, among the judges of the [Sąd Najwyższy (Supreme Court)] and of the ordinary, administrative and military courts, 15 members [of the KRS] for a collective term of four years.2. In the election referred to in paragraph 1, the Lower Chamber shall, as far as possible, take into account the need for representativeness within [the KRS] of various types and levels of the courts.3. The collective term of the new members [of the KRS], elected among the judges, shall begin the day following their election. Serving members [of the KRS] shall exercise their posts until the day on which the collective term of the new members [of the KRS] begins.’31Under Article 11a(2) of the Law on the KRS, candidates for the post of member of the KRS, chosen among the judges, may be presented by a group of at least 2000 Polish citizens or by a group of at least 25 judges in active service. The procedure for the Lower Chamber to appoint members of the KRS is set out in Article 11d of the Law on the KRS.32In accordance with Article 34 of the Law on the KRS, a panel of three members of the KRS is to adopt a position on the assessment of candidates’ suitability for the post of judge.33Article 35 of the Law on the KRS provides:‘1. Where several candidates have applied for a post of judge or trainee judge, the group shall draw up a list of recommended candidates.2. In determining the order of the candidates on the list, the group shall take into account, in the first place, the assessment of the candidates’ qualifications and it shall also consider:the professional experience, including experience in the application of legislative provisions, academic output, the opinion of his or her superiors, letters of recommendation, publications and other documents enclosed with the application form;the opinion of the kolegium (general assembly) of the relevant court and the evaluation of the relevant general assembly of judges.3. The absence of any of the documents referred to in paragraph 2 shall not constitute an obstacle to the drawing up of a list of recommended candidates.’34Under Article 37(1) of the Law on the KRS:‘If several candidates have applied for a single post of judge, [the KRS] shall examine and evaluate all the applications lodged together. In that case, [the KRS] shall adopt a resolution including its decisions for the purposes of presenting one appointment proposition to the post of judge in respect of all candidates.’35Article 44 of the Law on the KRS provides:‘1. An applicant may bring an action before the [Sąd Najwyższy (Supreme Court)] on the ground of the illegality of [the KRS’s] resolution, unless specific provisions provide otherwise. …1a. In individual cases regarding appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)], an action may be brought before the [Naczelny Sąd Administracyjny (Supreme Administrative Court)]. In those cases, no action may be brought before the [Sąd Najwyższy (Supreme Court)]. The action before the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] cannot be based on a plea alleging an inadequate evaluation of whether the candidates fulfilled the criteria taken into account in arriving at its decision on the presentation of an appointment proposal to the post of judge of the [Sąd Najwyższy (Supreme Court)].1b. If all of the applicants have not challenged the resolution referred to in Article 37(1) in individual cases regarding appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)], that resolution shall become final in respect of the part concerning the decision on the presentation of the appointment proposition to the post of judge of the [Sąd Najwyższy (Supreme Court)] and in respect of the part concerning the decision not to present an appointment proposition to the post of judge of that court, as regards the applicants who did not challenge that decision.2. An action shall be lodged through the offices of the Przewodniczący [President of the KRS], within two weeks of notice of the resolution with its statement of reasons. …’36Under Article 6 of the Law of 8 December 2017 amending the Law on the KRS:‘The term of office of the members [of the KRS] referred to in Article 187(1)(2) of the [Constitution], elected pursuant to provisions now in force, shall continue until the day preceding the term of the new members [of the KRS] without, however, exceeding 90 days from the date of the entry into force of the present law, unless that term has not already expired.’ The disputes in the main proceedings and the questions referred for a preliminary ruling 37In Case C‑585/18, A. K., a judge of the Naczelny Sąd Administracyjny (Supreme Administrative Court) who reached the age of 65 before the entry into force of the New Law on the Supreme Court, submitted, on the basis of Article 37(1) and of Article 111(1) of that law, a declaration indicating his wish to continue in his position. On 27 July 2018, the KRS issued an unfavourable opinion to that request under Article 37(1a) of that law. On 10 August 2018, A. K. brought an action before the Sąd Najwyższy (Supreme Court) in respect of that opinion. In support of his action, A. K. claimed, inter alia, that retiring him at the age of 65 infringed the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Directive 2000/78, in particular, Article 9(1) thereof.38Cases C‑624/18 and C‑625/18 concern two judges of the Sąd Najwyższy (Supreme Court), CP and DO, who also reached the age of 65 before the date of the entry into force of the New Law on the Supreme Court but who have not submitted declarations on the basis of Article 37(1) and of Article 111(1) of that law. Having been informed that the President of the Republic had, pursuant to Article 39 of that law, declared that they had been retired as of 4 July 2018, CP and DO brought actions before the Sąd Najwyższy (Supreme Court) against the President of the Republic for a declaration that their employment relationship of judge in active service in the referring court had not been transformed, as of that date, into an employment relationship of retired judge of that court. In support of their actions, they rely, inter alia, on an infringement of Article 2(1) of Directive 2000/78 prohibiting discrimination on the ground of age.39The Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Labour and Social Insurance Chamber’), before which these various actions are pending, notes, in its orders for reference in Cases C‑624/18 and C‑625/18, that the actions were brought before it since the Disciplinary Chamber has not yet been formed. In those circumstances, the referring court asks whether Article 9(1) of Directive 2000/78 and Article 47 of the Charter require it to disapply the provisions of national law which reserve jurisdiction to hear and rule on such actions to a chamber which has not yet been formed. The referring court points out, however, that that question could become irrelevant if enough posts of judge of the Disciplinary Chamber were actually filled.40Furthermore, in its orders for reference in Cases C‑585/18, C‑624/18 and C‑625/18, the referring court considers that, in the light of, inter alia, the circumstances in which the new judges of the Disciplinary Chamber will be appointed, serious doubts arise as to whether that chamber and its members will provide sufficient guarantees of independence and impartiality.41In that regard, the referring court, which observes that those judges are appointed by the President of the Republic on a proposal of the KRS, notes, first of all, that, under the reform enacted by the Law of 8 December 2017 amending the Law on the National Council of the Judiciary and certain other laws, the 15 members of the KRS who, of its 25 members, must be elected among judges are now not elected by general assembly of judges of all levels as before, but by the Lower Chamber of the Polish Parliament. According to the referring court, that situation disregards the principle of the separation of powers as the basis for a democratic State governed by the rule of law and is not consistent with the prevailing international and European standards in that regard, as is clear, in particular, from Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe on Judges: independence, efficiency and responsibilities of 17 November 2010, from Opinion No 904/2017 (CDL-AD(2017)031) of the European Commission for Democracy through Law (Venice Commission) of 11 December 2017 and from Opinion No 10(2007) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society of 23 November 2007.42Next, according to the referring court, both the conditions, in particular those of a procedural nature, under which the members of the KRS were selected and appointed during 2018 and an examination of the way in which that body thus constituted has acted, until the present, demonstrate that the KRS is subject to the political authorities and is incapable of exercising its constitutional role of ensuring the independence of the courts and of the judiciary.43First, the referring court considers that the recent elections of the new members of the KRS were not transparent and there are serious doubts as to whether the requirements laid down in the applicable legislation were actually complied with during those elections. Moreover, the requirement of representativeness of the various types and levels of the judiciary laid down in Article 187(1)(2) of the Constitution has not been respected. The KRS has no elected judge from the Sąd Najwyższy (Supreme Court), the courts of appeal or the military courts, but has 1 representative of a regional administrative court, 2 representatives of regional courts and 12 representatives of district courts.44Second, an examination of the activities of the KRS as now formed is said to demonstrate a complete lack of the adoption of any stance by that body for the purposes of defending the independence of the Sąd Najwyższy (Supreme Court) in the crisis caused by the recent legislative reforms affecting that court. By contrast, the KRS, or members thereof, have publicly criticised members of the Sąd Najwyższy (Supreme Court) for having referred questions to the Court of Justice for a preliminary ruling or cooperated with the EU institutions, in particular with the European Commission. Furthermore, the KRS’s practice — when called on to issue an opinion on the possibility for a judge of the Sąd Najwyższy (Supreme Court) to continue to serve beyond the retirement age now set at 65 — consists, as demonstrated, inter alia, in the opinion of the KRS challenged before the referring court in Case C‑585/18, in issuing unreasoned unfavourable opinions or merely reproducing the wording of Article 37(1b) of the New Law on the Supreme Court.45In addition, the selection procedure conducted by the KRS for the purposes of filling the 16 posts of judge of the Disciplinary Chamber declared vacant on 24 May 2018 by the President of the Republic reveals that the 12 candidates chosen by the KRS, namely 6 Public Prosecutors, 2 judges, 2 legal advisers and 2 professors, were persons who were, until that time, subject to the executive, persons who, during the crisis of the rule of law in Poland, have acted on the instructions of the political authorities or in line with their expectations, or, lastly, persons who do not meet the statutory criteria or persons who have in the past been the subject of disciplinary sanctions.46Lastly, the referring court notes that the procedure during the course of which the KRS is called on to select candidates to the posts of judge of the Disciplinary Chamber, who cannot be chosen from currently serving members of the Sąd Najwyższy (Supreme Court), was designed and, subsequently, amended, so that the KRS may act in an ad hoc manner, without the possibility of any meaningful review in that regard.47First, the Supreme Court is no longer involved in that appointment process and, thus, the actual and effective assessment of the qualities of the candidates may no longer be guaranteed. Second, the fact that candidates have not provided the documents referred to in Article 35(2) of the Law on the KRS, which are nevertheless essential for the purposes of distinguishing between the candidates, is no longer, as is clear from Article 35(3) of that law, an obstacle to the drawing up of the list of candidates recommended by the KRS. Third, under Article 44 of that law, the KRS’s decisions become final until challenged by all of the candidates, which effectively precludes any actual possibility of their judicial review.48In that context, the referring court harbours doubts as to the importance which should be ascribed, as regards compliance with the requirement stemming from EU law that the courts and the judiciary of the Member States must be independent, to factors such as, first, independence, from the political authorities, of the body responsible for selecting judges, and, second, the circumstances surrounding the selection of the members of a newly created chamber of a court in a particular Member State, where that chamber has jurisdiction to rule on cases governed by EU law.49In the event that such a chamber of a court does not meet the requirement that courts be independent, the referring court wishes to know whether EU law must be interpreted as meaning that the referring court must disapply the application of provisions of national law which, by reserving such jurisdiction to that chamber, impinge on its own jurisdiction to hear and to rule, where relevant, on the cases in the main proceedings. In its orders for reference in Cases C‑624/18 and C‑625/18, the referring court observes, in that regard, that it has general jurisdiction in labour law and the law of social security, which empowers it, in particular, to rule on cases such as those in the main proceedings which concern alleged infringement of the prohibition of discrimination in employment on the ground of age.50In those circumstances the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber)) decided to stay the proceedings and refer questions to the Court for a preliminary ruling.51In Case C‑585/18, the questions referred are worded as follows:‘(1)On a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear an action by a national court judge and which must be composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts (the [KRS]), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?If the answer to the first question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter of Fundamental Rights], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court and is seised of an appeal in a case falling within the scope of EU law should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’52In Cases C‑624/18 and C‑625/18, the questions referred were worded as follows:Should Article 47 of the [Charter], read in conjunction with Article 9(1) of [Directive 2000/78], be interpreted as meaning that, where an appeal is brought before a court of last instance in a Member State against an alleged infringement of the prohibition of discrimination on the ground of age in respect of a judge of that court, together with a motion for granting security in respect of the reported claim, that court — in order to protect the rights arising from EU law by ordering an interim measure provided for under national law — must refuse to apply national provisions which confer jurisdiction, in the case in which the appeal has been lodged, on a chamber of that court which is not operational by reason of a failure to appoint judges to be its members?In the event that judges are appointed to adjudicate within the chamber with jurisdiction under national law to hear and determine the action brought, on a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear the case of a national court judge at first or second instance and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the [(KRS)], which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?If the answer to the second question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court seised with an appeal in an EU case should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’ Procedure before the Court 53Cases C‑585/18, C‑624/18 and C‑625/18 were joined by decision of the President of the Court of 5 November 2018.54By order of 26 November 2018, A. K. and Others (C‑585/18, C‑624/18 and C‑625/18, not published, EU:C:2018:977), the President of the Court accepted the referring court’s request that the present cases be subject to the expedited procedure. Thus, as provided for by Article 105(2) and (3) of the Rules of Procedure of the Court, the date for the hearing was fixed immediately, namely for 19 March 2019, and communicated to the interested parties together with notification of the requests for a preliminary ruling. A time limit was prescribed for the interested parties to lodge any written observations.55On 19 March 2019, a first hearing was held before the Court. On 14 May 2019, a second hearing was organised by the Court following, inter alia, a request from the KRS, which had not lodged any written observations before the Court, had not been represented at the first hearing and wished to be heard, and in order to allow the interested parties to make submissions on any implications for the present cases which may have resulted from a judgment delivered on 25 March 2019, in which the Trybunał Konstytucyjny (Constitutional Court, Poland) declared Article 9a of the Law on the KRS to be compatible with Article 187(1)(2) and (4) of the Constitution.56Furthermore, at that second hearing, the KRS provided a copy of Resolution No 6 adopted by the General Assembly of the judges of the Disciplinary Chamber on 13 May 2019, which sets out the position of that chamber on the procedure followed in the present joined cases. The copy of that resolution was circulated among the interested parties present and added to the case file.57By documents lodged at the Registry of the Court on 3 and 29 July 2019, on 16 September 2019 and on 7 November 2019 by the Polish Government, on 4 July 2019 by the KRS and on 29 October 2019 by the Prokurator Generalny (Public Prosecutor, Poland), a reopening of the oral part of the procedure was requested.58In support of its request, the KRS states, in essence, that it does not share the Opinion of the Advocate General, which it considers to be based on false premisses and which takes insufficient account, in its view, of the line of argument which it set out at the hearing of 14 May 2019. Consequently, it contends, in addition, that the Court should re-examine the possibility of taking into consideration the written observations previously submitted by the KRS which were rejected on account of being lodged out of time.59In its request of 3 July 2019 and in the further submissions which it addressed to the Court on 29 July and 16 September 2019, the Polish Government also states that it does not share the Opinion of the Advocate General, which, it claims, contain certain contradictions and are based, as is clear from certain points thereof and from corresponding points in the Opinion of the Advocate General made on 11 April 2019 in Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:325), on an erroneous interpretation of the past case-law of the Court, in particular of the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117). Furthermore, the Polish Government submits that the Advocate General’s Opinion contains a number of new arguments and positions, which have not been sufficiently aired. However, in the light of their supreme importance and fundamental implications for the various legal models applicable in the Member States as regards the composition of the national councils of the judiciary and the processes for judicial appointments, it claims that those factors justify a reopening of the oral part of the procedure in order to allow all the Member States to make submissions on the matter. In its request of 7 November 2019, in support of which it provided the minutes of a hearing of the Sąd Okręgowy w Krakowie (District Court, Kraków, Poland) of 6 September 2019, the Polish Government submits that that document raises the prospect that the judgment to be delivered by the Court in the present cases could give rise to legal uncertainty in Poland and that it thus discloses a new fact which is of such a nature as to be a decisive factor for the decision of the Court.60Lastly, the Public Prosecutor, who essentially points to factors previously relied on and arguments already set out by the Polish Government and the KRS in their respective abovementioned requests to reopen the oral part of the procedure of 3, 4 and 29 July 2019 and of 16 September 2019, maintains, first, that sufficient information is lacking on the facts of the cases in the main proceedings, as is clear from the Advocate General’s Opinion, second, that that Opinion adopts a position on important factors which were not debated between the parties and, third, that that Opinion is based on an erroneous interpretation of the past case-law of the Court which allegedly constitutes a new fact which is of such a nature as to be a decisive factor for the decision of the Court.61In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).62Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by those submissions or by the reasoning underpinning those submissions. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).63However, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.64In the present cases, the Court considers, however, having heard the Advocate General, that it has before it, following the written procedure and the two successive hearings which it held, all of the information necessary for it to give a ruling. Furthermore, it notes that these joined cases shall not be decided on the basis of an argument which has not been the subject of exchanges between the parties. Lastly, it considers that the various requests to reopen the oral part of the present procedure do not disclose any new fact which is of such a nature as to be a decisive factor for the decision of the Court in those cases. In those circumstances, it is not necessary to reopen the oral part of the procedure.65Lastly, as regards the request repeated by the KRS that the Court should take into account its written observations of 4 April 2019, it should be noted that that party to the main proceedings which, like the other interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, was asked to submit such observations within the period prescribed for doing so deliberately refrained from lodging observations within that time, as is expressly made clear in the letter of 28 March 2019 which it sent to the Court. In those circumstances, the abovementioned written observations, which were lodged by the KRS out of time and were therefore returned to the KRS, also cannot be taken into consideration by the Court at this stage in the procedure. Consideration of the questions referred The first question in Cases C‑624/18 and C‑625/18 66By its first question in Cases C‑624/18 and C‑625/18, the referring court asks, in essence, whether Article 9(1) of Directive 2000/78 read in conjunction with Article 47 of the Charter must be interpreted as meaning that, where an action is brought before a court of last instance in a Member State alleging infringement of the prohibition of discrimination on the ground of age arising from that directive, such a court must refuse to apply provisions of national law which confer jurisdiction to rule on such an action on a court, such as the Disciplinary Chamber, which has not yet been formed because the judges of that court have not been appointed.67In the present cases, it is, however, important to take account of the fact that, shortly after the adoption of the orders for reference in Cases C‑624/18 and C‑625/18, the President of the Republic appointed the judges of the Disciplinary Chamber, which has now been formed.68In the light of that fact, it must be found that an answer to the first question in Cases C‑624/18 and C‑625/18 is no longer relevant for the purposes of the decisions which the referring court is called on to deliver in those two cases. Only if the Disciplinary Chamber were not sufficiently operational would that question need to be answered.69It has consistently been held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 29 and the case-law cited).70In that regard, it should be borne in mind that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited). If it appears that the question raised is manifestly no longer relevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (see, to that effect, judgment of 24 October 2013, Stoilov i Ko, C‑180/12, EU:C:2013:693, paragraph 38 and the case-law cited).71It follows, as submitted by the KRS, the Polish Government and the Commission, and as had, moreover, been suggested by the referring court itself, as is clear from paragraph 39 above, that it is no longer necessary for the Court to rule on the first question referred in Cases C‑624/18 and C‑625/18. The questions in Case C‑585/18 and the second and third questions in Cases C‑624/18 and C‑625/18 72By its questions in Case C‑585/18 and its second and third questions in Cases C‑624/18 and C‑625/18, which it is appropriate to consider together, the referring court asks, in essence, whether Article 2 and the second subparagraph of Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter must be interpreted as meaning that a chamber of a supreme court in a Member State, such as the Disciplinary Chamber, which is called on to rule on cases falling within the scope of EU law, satisfies, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required by those provisions of EU law. If that is not the case, the referring court asks whether the principle of the primacy of EU law must be interpreted as meaning that that court is required to disapply the provisions of national law which reserve jurisdiction to rule on such cases to that chamber of that court. The jurisdiction of the Court 73The Public Prosecutor has submitted, in the first place, that the Court has no jurisdiction to provide rulings on the second and third questions referred in Cases C‑624/18 and C‑625/18 on the ground that the provisions of EU law to which those questions refer do not provide a definition of the concept of an ‘independent court’ and do not lay down any rules on the jurisdiction of national courts and national councils of the judiciary, since those questions fall within the exclusive competencies of the Member States and cannot be encroached upon by the European Union.74However, the fact remains that the arguments thus advanced by the Public Prosecutor do in fact concern the very scope of those provisions of EU law and, thus, concern an interpretation of those provisions. An interpretation of that nature clearly falls within the jurisdiction of the Court under Article 267 TFEU.75In that regard, the Court has previously held that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited).76In the second place, the Public Prosecutor claims that, as regards the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the Court also lacks jurisdiction to rule on those two referred questions because the provisions of national law at issue in the main proceedings do not implement EU law or fall within the scope thereof and they cannot therefore be assessed under that law.77As regards, first of all, the provisions of the Charter, it should certainly be recalled that, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 22 and the case-law cited).78The scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 23 and the case-law cited).79However, in the present cases, as regards, in particular, Article 47 of the Charter, the Court notes that, in the actions in the main proceedings, the applicants rely, inter alia, on infringements to their detriment of the prohibition of discrimination in employment on the ground of age, which is provided for by Directive 2000/78.80In addition, it is to be noted that the right to an effective remedy is reaffirmed by Directive 2000/78, Article 9 of which provides that Member States must ensure that all persons who consider themselves wronged by failure to apply the principle of equal treatment to them as provided for by that directive are able to assert their rights (judgment of 8 May 2019, Leitner, C‑396/17, EU:C:2019:375, paragraph 61 and the case-law cited).81It follows from the foregoing that the present cases are situations governed by EU law, so that the applicants in the main proceedings are justified in asserting the right to effective judicial protection afforded to them by Article 47 of the Charter.82Next, as regards the scope of the second subparagraph of Article 19(1) TEU, that provision, first, aims to guarantee effective judicial protection in ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 50 and the case-law cited).83Contrary to what has been claimed by the Public Prosecutor in that regard, the fact that the national salary reduction measures at issue in the case which gave rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117) were adopted due to requirements linked to the elimination of the excessive budget deficit of the Member State concerned and in the context of an EU financial assistance programme for that Member State did not, as is apparent from paragraphs 29 to 40 of that judgment, play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. That conclusion was reached on the basis of the fact that the national body at issue in that case, namely the Tribunal de Contas (Court of Auditors, Portugal), could, subject to verification to be carried out by the referring court in that case, rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and thus falling within the fields covered by EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 51 and the case-law cited).84Since the actions in the main proceedings concern alleged infringements of rules of EU law, it is sufficient to find that, in the present cases, the court called on to dispose of the cases will be required to rule on questions concerning the application or interpretation of EU law and thus falling within the fields covered by EU law within the meaning of the second subparagraph of Article 19(1) TEU.85Lastly, in respect of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to the Republic of Poland and to the United Kingdom (OJ 2010 C 83, p. 313), on which the Public Prosecutor also relies, it must be observed that that protocol does not concern the second subparagraph of Article 19(1) TEU and it should be recalled that it does not call into question the applicability of the Charter in Poland, nor is it intended to exempt the Republic of Poland from the obligation to comply with the provisions of the Charter (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 53 and the case-law cited).86It follows from all the foregoing that the Court has jurisdiction to interpret Article 47 of the Charter and the second subparagraph of Article 19(1) TEU in the present cases. Whether it is necessary to give a ruling 87The KRS, the Public Prosecutor and the Polish Government have stated that, on 17 December 2018, the President of the Republic signed the ustawa o zmianie ustawy o Sądzie Nawyższym (Law amending the [New Law on the Supreme Court]) of 21 November 2018 (Dz. U. of 2018, item 2507, ‘the Law of 21 November 2018’), which entered into force on 1 January 2019.88It is clear that Article 1 of that law repeals Article 37(1a) to (4) and Article 111(1) of the New Law on the Supreme Court and amends Article 37(1) thereof to the effect that ‘the judges of the Sąd Najwyższy [(Supreme Court)] shall retire at the age of 65’. It is, however, specified that that provision applies only to judges of the Sąd Najwyższy (Supreme Court) who entered into service in that court after 1 January 2019. The previous wording of Article 30 of the Law on the Supreme Court of 23 November 2002, which provided for retirement at the age of 70, applies to judges of the Sąd Najwyższy (Supreme Court) who entered into service before that date.89Article 2(1) of the Law of 21 November 2018 provides that, ‘from the date of the entry into force of the present law, any judge of the Sąd Najwyższy [(Supreme Court)] or of the Naczelny Sąd Administracyjny [(Supreme Administrative Court)] who has been retired pursuant to Article 37(1) to (4) or Article 111(1) or (1a) of the [New Law on the Supreme Court] shall re-enter active service in the post he or she held on the date of the entry into force of [that law]. Service as judge of the Sąd Najwyższy [(Supreme Court)] or of the Naczelny Sąd Administracyjny [(Supreme Administrative Court)] shall be regarded as having continued without interruption’.90Article 4(1) of the Law of 21 November 2018 provides that ‘procedures commenced pursuant to Article 37(1) and to Article 111(1) to (1b) of the [New Law on the Supreme Court] and appeal procedures pending in those cases on the date of the entry into force of the present law shall be discontinued’, and Article 4(2) thereof provides that ‘procedures commenced and pending at the date of the entry into force of the present law, for the purposes of establishing the existence of an employment relationship as a judge in active service of the Sąd Najwyższy [(Supreme Court)] or of the Naczelny Sąd Administracyjny [(Supreme Administrative Court)], in respect of the judged referred to in Article 2(1), shall be discontinued’.91According to the KRS, the Public Prosecutor and the Polish Government, it follows from Article 1 and Article 2(1) of the Law of 21 November 2018 that the judges who are applicants in the main proceedings and were retired pursuant to provisions of the New Law on the Supreme Court, now repealed, have been returned to their previous posts in those courts by operation of law, until they reach the age of 70, in accordance with the provisions of national law previously in force, but that any possibility of extension, by the President of the Republic, of their term in office beyond the ordinary retirement age has also been repealed.92In those circumstances, and in accordance with Article 4 of that law providing for cases such as those in the main proceedings to be discontinued, it is said that those cases have become devoid of purpose, so that it is no longer be necessary for the Court to rule on the present references for a preliminary ruling.93In the light of the foregoing, on 23 January 2019, the Court asked the referring court whether, following the entry into force of the Law of 21 November 2018, that court considered that an answer to the questions referred was still necessary to enable it to deliver judgment in the cases pending before it.94In its reply of 25 January 2019, the referring court confirmed that request, adding that, by orders of 23 January 2019, it had ordered a stay in the proceedings on the requests that there is no need to proceed to judgment lodged before it by the Public Prosecutor, under Article 4(1) and (2) of the Law of 21 November 2018, until the Court has ruled on the present cases.95In that reply, the referring court explains that an answer to the questions referred in those cases is still necessary for it to be able to dispose of the preliminary procedural problems with which it is faced prior to it being able to deliver judgment in those cases.96Furthermore, as regards the substance of the cases in the main proceedings, the referring court indicated that the Law of 21 November 2018 was not intended to render national law compatible with EU law, but to apply the interim measures ordered by the Vice-President of the Court in her order of 19 October 2018, Commission v Poland (C‑619/18 R, not published, EU:C:2018:852), upheld by order of the Court of 17 December 2018, Commission v Poland (C‑619/18 R, EU:C:2018:1021). That law did not therefore repeal the provisions of national law at issue or their legal effects ex tunc. Whereas that law purports to reinstate those judges who are applicants in the main proceedings to their office after their retirement and to introduce a legal fiction as to the continued nature of their term in office effected by that reinstatement, the actions in the main proceedings seek a declaration that the judges in question never took retirement and remained fully in their posts during that entire period, which can result only from the invalidity of the rules of national law at issue, under the primacy of EU law. That distinction is fundamental in determining the status of the judges in question from the perspective of their capacity to take judicial, organisational and administrative measures and from the perspective of any mutual rights and obligations in respect of the Sąd Najwyższy (Supreme Court) on the basis of an employment relationship, or even that of disciplinary sanctions. In that latter respect, the referring court notes that, according to the declarations of representatives of the political authorities, those judges were exercising their judicial office illegally until 1 January 2019, the date of the entry into force of the Law of 21 November 2018.97It should be noted that, as is clear from settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).98It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).99In the present cases, the Court notes, first of all, that, by the questions which the referring court referred to the Court for a preliminary ruling and by the interpretation of EU law sought in the present cases, the referring court wishes to be instructed not as to the substance of the cases before it which do in turn raise other questions of EU law, but as regards a procedural problem which it must answer in limine litis, since that problem relates to the jurisdiction of that court to hear and rule on those cases.100In that regard, it should be noted that, according to settled case-law, the Court has power to explain to the national court points of EU law which may help to solve the problem of jurisdiction with which that court is faced (judgments of 22 October 1998, IN. CO. GE.’90 and Others, C‑10/97 to C‑22/97, EU:C:1998:498, paragraph 15 and the case-law cited, and of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 43). That applies in particular where, as in the present cases, and as is clear from paragraphs 79 to 81 above, the questions raised relate to the issue whether a national court which ordinarily has jurisdiction to rule on a case in which an individual relies on a right stemming from EU law meets the requirements derived from the right to an effective remedy before a court of law as enshrined in Article 47 of the Charter and Article 9(1) of Directive 2000/78.101The Law of 21 November 2018 does not concern aspects relating to jurisdiction to rule on the cases in the main proceedings on which the referring court is thus called to rule and in respect of which it has, in the present cases, requested an interpretation of EU law.102Next, it should be made clear that the fact that national legislation, such as Article 4(1) and (2) of the Law of 21 November 2018, provides for discontinuance of cases such as those in the main proceedings cannot, in principle and without a decision of the referring court ordering such discontinuance or to the effect that there is no need to rule on the cases in the main proceedings, lead the Court to find that it is no longer necessary for it to answer the questions before it which were referred for a preliminary ruling.103It should be noted that national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law, that discretion being replaced by an obligation for courts ruling at final instance, subject to certain exceptions recognised by the Court’s case-law. A rule of national law thus cannot prevent a national court, where appropriate, from exercising that discretion, or complying with that obligation. Both that discretion and that obligation are an inherent part of the system of cooperation between the national courts and the Court of Justice established by Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts (judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraphs 32 and 33 and the case-law cited).104Provisions of national law such as those referred to in paragraph 102 above cannot therefore preclude a chamber of a court from which there is no appeal, faced with a question on the interpretation of EU law, from confirming questions which it referred to the Court for a preliminary ruling.105Lastly, it is to be noted that, as regards Cases C‑624/18 and C‑625/18, which concern the issue whether or not the applicants in the main proceedings continue to be in an employment relationship as judges in active service with the Sąd Najwyższy (Supreme Court) as their employer, it is clear from the explanations provided by the referring court, set out in paragraph 96 above, that, in the light of, inter alia, all of the consequences resulting from the existence of such an employment relationship, the mere fact of the entry into force of Article 2(1) of the Law of 21 November 2018 does not mean that it is beyond doubt that a declaration that there is no need to rule on the cases before the referring court is appropriate.106It follows from all the foregoing that the adoption and entry into force of the Law of 21 November 2018 is not capable of justifying the Court in not ruling on the second and third questions in Cases C‑624/18 and C‑625/18.107By contrast, as regards Case C‑585/18, it must be borne in mind that the action before the referring court relates to an opinion of the KRS delivered in a procedure capable of leading to a decision extending the exercise of judicial functions of the applicant in the main proceedings beyond the age of retirement now set at 65.108Indeed, it does not flow from the abovementioned explanations provided by the referring court that that action might still have a purpose, more particularly, that such an opinion might not be invalid, despite the fact that, under the provisions of national law adopted between then and now, both the provisions of national law setting a new retirement age and those setting out the procedure for extending the exercise of judicial functions bringing about the need for such an opinion have been repealed, as a result of which the applicant in the main proceedings may continue in his post as a judge until the age of 70, in accordance with the provisions of national law in force before the adoption of the provisions which were repealed.109In those circumstances, and in the light of the principles set out in paragraphs 69 and 70 above, it is no longer necessary for the Court to rule on the questions referred in Case C‑585/18. Admissibility of the second and third questions in Cases C‑624/18 and C‑625/18 110The Polish Government claims that the second and third questions in Cases C‑624/18 and C‑625/18 are inadmissible. It maintains, in the first place, that those questions are irrelevant because answers to them are unnecessary on account of the fact that the proceedings pending before the Labour and Social Insurance Chamber which referred the questions for a preliminary ruling are invalid, under Article 379(4) of the Civil Procedure Code, because they disregarded the rules relating to the composition and jurisdiction of the courts. There is a three-judge panel sitting in those cases in that chamber, whereas Article 79 of the New Law on the Supreme Court provides that cases such as those in the main proceedings must, at first instance, be decided by a single-judge panel. In the second place, the answers to the questions referred cannot, in any event, enable the referring court to rule on cases which fall within the jurisdiction of another chamber of the Sąd Najwyższy (Supreme Court) without impinging on the exclusive competency of the Member States to organise their national courts or overstepping the competency of the European Union, nor can those answers therefore be relevant to the outcome of the cases in the main proceedings.111However, the arguments thus put forward, which concern matters of substance, cannot affect the admissibility of the questions referred.112Indeed, the questions referred precisely concern the question of whether, notwithstanding rules of national law in force in the Member State in question attributing jurisdiction, a court such as the referring court has the obligation, under the provisions of EU law to which those questions refer, to disapply those rules of national law and to assume, where relevant, jurisdiction for the actions in the main proceedings. A judgment in which the Court were to uphold the existence of such an obligation would be binding on the referring court and all other bodies of the Republic of Poland, and could not be affected by provisions of domestic law relating to the invalidity of proceedings or by the distribution of jurisdiction between the courts to which the Polish Government refers.113It follows that the objections made by the Polish Government as to the admissibility of those questions cannot be upheld. The substance of the second and third questions in Cases C‑624/18 and C‑625/18 114It should be noted that, as is clear from paragraphs 77 to 81 above, in situations such as those at issue in the main proceedings, in which the applicants rely on infringements to their detriment of the prohibition of discrimination on the ground of age in employment provided by Directive 2000/78, both Article 47 of the Charter, which enshrines the right to effective judicial protection, and Article 9(1) of the directive, which reaffirms it, may apply.115In that regard, according to settled case-law, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, responsible for ensuring that, pursuant to Article 47 of the Charter, the right to effective judicial protection of those rights is effectively protected in every case (see, to that effect, judgments of 22 October 1998, IN. CO. GE.’90 and Others, C‑10/97 to C‑22/97, EU:C:1998:498, paragraph 14 and the case-law cited; of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraphs 44 and 45; and of 19 March 2015, E.ON Földgáz Trade, C‑510/13, EU:C:2015:189, paragraphs 49 and 50 and the case-law cited).116Furthermore, it should be noted that Article 52(3) of the Charter states that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR.117As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 40 and the case-law cited).118The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights (judgment of 29 July 2019, Gambino and Hyka, C‑38/18, EU:C:2019:628, paragraph 39).119As regards the substance of the second paragraph of Article 47 of the Charter, it is clear from the very wording of that provision that the fundamental right to an effective remedy enshrined therein means, inter alia, that everyone is entitled to a fair hearing by an independent and impartial tribunal.120That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 58 and the case-law cited).121According to settled case-law, the requirement that courts be independent has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 63 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 72).122The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 73).123Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 74).124Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive (see, to that effect, judgment of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraph 35).125In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 112 and the case-law cited).126That interpretation of Article 47 of the Charter is borne out by the case-law of the European Court of Human Rights on Article 6(1) of the ECHR according to which that provision requires that the courts be independent of the parties and of the executive and legislature (ECtHR, 18 May 1999, Ninn-Hansen v. Denmark, CE:ECHR:1999:0518DEC002897295, p. 19 and the case-law cited).127According to settled case-law of that court, in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407, § 141).128As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 145, 147 and 149 and the case-law cited).129As the European Court of Human Rights has repeatedly held, the concepts of independence and objective impartiality are closely linked which generally means that they require joint examination (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 192 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 150 and the case-law cited). According to the case-law of the European Court of Human Rights, in deciding whether there is reason to fear that the requirements of independence and objective impartiality are not met in a given case, the perspective of a party to the proceedings is relevant but not decisive. What is decisive is whether such fear can be held to be objectively justified (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, §§ 193 and 194 and the case-law cited, and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 147 and 152 and the case-law cited).130In that connection, the European Court of Human Rights has repeatedly stated that, although the principle of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law, neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor requires those States to comply with any theoretical constitutional concepts regarding the permissible limits of such interaction. The question is always whether, in a given case, the requirements of the ECHR have been met (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 193 and the case-law cited; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 59; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 62 and the case-law cited).131In the present cases, the doubts expressed by the referring court concern, in essence, the question whether, in the light of the rules of national law relating to the creation of a specific court, such as the Disciplinary Chamber, and, in particular, pertaining to the jurisdiction granted to it, its composition and the circumstances and conditions surrounding the appointment of the judges called to sit on that court, the context of its creation and those appointments, such a court and the members sitting on it satisfy the requirements of independence and impartiality which must be met by a court under Article 47 of the Charter where that court has jurisdiction to rule on a case in which subjects of the law rely, as in the present cases, on an infringement of EU law that is to their detriment.132It is ultimately for the referring court to rule on that matter having made the relevant findings in that regard. It must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 71 and the case-law cited).133In that regard, as far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited).134However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 111).135In that perspective, it is important, inter alia, that those conditions and detailed procedural rules are drafted in a way which meets the requirements set out in paragraph 125 above.136In the present cases, it should be made clear that Article 30 of the New Law on the Supreme Court sets out all the conditions which must be satisfied by an individual in order for that individual to be appointed as a judge of that court. Furthermore, under Article 179 of the Constitution and Article 29 of the New Law on the Supreme Court, the judges of the Disciplinary Chamber are, as is the case for judges who are to sit in the other chambers of the referring court, appointed by the President of the Republic on a proposal of the KRS, that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary.137The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 115; see also, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 81 and 82). In particular, the fact of subjecting the very possibility for the President of the Republic to appoint a judge to the Sąd Najwyższy (Supreme Court) to the existence of a favourable opinion of the KRS is capable of objectively circumscribing the President of the Republic’s discretion in exercising the powers of his office.138However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 116).139The degree of independence enjoyed by the KRS in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter.140It is for the referring court to ascertain whether or not the KRS offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant points of law and fact relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role.141The referring court has pointed to a series of elements which, in its view, call into question the independence of the KRS.142In that regard, although one or other of the factors thus pointed to by the referring court may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable.143Subject to those reservations, among the factors pointed to by the referring court which it shall be incumbent on that court, as necessary, to establish, the following circumstances may be relevant for the purposes of such an overall assessment: first, the KRS, as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the KRS elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the KRS directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed KRS.144For the purposes of that overall assessment, the referring court is also justified in taking into account the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it does so in a way which is capable of calling into question its independence in relation to the legislature and the executive.145Furthermore, in the light of the fact that, as is clear from the case file before the Court, the decisions of the President of the Republic appointing judges to the Sąd Najwyższy (Supreme Court) are not amenable to judicial review, it is for the referring court to ascertain whether the terms of the definition, in Article 44(1) and (1a) of the Law on the KRS, of the scope of the action which may be brought challenging a resolution of the KRS, including its decisions concerning proposals for appointment to the post of judge of that court, allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment (see, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 25 and 81).146Notwithstanding the assessment of the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the KRS in that regard, the referring court may, for the purposes of ascertaining whether that chamber and its members meet the requirements of independence and impartiality arising from Article 47 of the Charter, also wish to take into consideration various other features that more directly characterise that chamber.147That applies, first, to the fact referred to by the referring court that this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social security and retirement of judges of the Sąd Najwyższy (Supreme Court), which previously fell within the jurisdiction of the ordinary courts.148Although that fact is not conclusive per se, it should, however, be borne in mind, as regards, in particular, cases relating to the retiring of judges of the Sąd Najwyższy (Supreme Court) such as those in the main proceedings, that the assignment of those cases to the Disciplinary Chamber took place in conjunction with the adoption, which was highly contentious, of the provisions of the New Law on the Supreme Court which lowered the retirement age of the judges of the Sąd Najwyższy (Supreme Court), applied that measure to judges currently serving in that court and empowered the President of the Republic with discretion to extend the exercise of active judicial service of the judges of the referring court beyond the new retirement age set by that law.149It must be borne in mind, in that regard, that, in its judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531), the Court found that, as a result of adopting those measures, the Republic of Poland had undermined the irremovability and independence of the judges of the Sąd Najwyższy (Supreme Court) and failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.150Second, in that context, the fact must also be highlighted, as it was by the referring court, that, under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly appointed judges, thereby excluding judges already serving in the Sąd Najwyższy (Supreme Court).151Third, it should be made clear that, although established as a chamber of the Sąd Najwyższy (Supreme Court), the Disciplinary Chamber appears, by contrast to the other chambers of that court, and as is clear inter alia from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court.152Although any one of the various facts referred to in paragraphs 147 to 151 above is indeed not capable, per se and taken in isolation, of calling into question the independence of a chamber such as the Disciplinary Chamber, that may, by contrast, not be true once they are taken together, particularly if the abovementioned assessment as regards the KRS were to find that that body lacks independence in relation to the legislature and the executive.153Thus, the referring court will need to assess, in the light, where relevant, of the reasons and specific objectives alleged before it in order to justify certain of the measures in question, whether, taken together, the factors referred to in paragraphs 143 to 151 above and all the other relevant findings of fact which it will have made are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the Disciplinary Chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.154If the referring court were to conclude that that is the case, it would follow that such a court does not meet the requirements arising from Article 47 of the Charter and from Article 9(1) of Directive 2000/78 on account of its not being an independent and impartial tribunal, within the meaning of the former provision.155If that is the case, the referring court also wishes to know whether the principle of the primacy of EU law requires it to disapply those provisions of national law which confer jurisdiction to rule on the cases in the main proceedings on that court.156For the purposes of answering that question, it should be noted that EU law is characterised by the fact that it stems from an independent source of law, namely the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions that are applicable to their nationals and to the Member States themselves. Those essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the European Union and its Member States reciprocally as well as binding the Member States to one another (Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 109 and the case-law cited).157The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 53 and the case-law cited).158That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 54 and the case-law cited).159In that regard, it should, inter alia, be pointed out that the principle that national law must be interpreted in conformity with EU law, by virtue of which the national court is required, to the greatest extent possible, to interpret national law in conformity with the requirements of EU law, is inherent in the system of the treaties, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 55 and the case-law cited).160It is also in the light of the primacy principle that, where it is impossible for it to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 58 and the case-law cited).161In that regard, any national court, hearing a case within its jurisdiction, has, as a body of a Member State, more specifically the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 61 and the case-law cited).162As regards Article 47 of the Charter, it is clear from the case-law of the Court that that provision is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56).163The same applies to Article 9(1) of Directive 2000/78 in so far as, as has been stated in paragraph 80 above, by providing that the Member States are to ensure that all persons who consider themselves wronged by a failure to apply the principle of equal treatment enshrined in that directive to them may enforce their rights, that provision expressly reaffirms the right to an effective remedy in the relevant field. In applying Directive 2000/78, the Member States are required to comply with Article 47 of the Charter and the characteristics of the remedy provided for in Article 9(1) of the directive must be determined in a manner that is consistent with Article 47 of the Charter (see, by analogy, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraphs 55 and 56).164Consequently, in the situation referred to in paragraph 160 above, the national court is required to ensure within its jurisdiction the judicial protection for individuals flowing from Article 47 of the Charter and from Article 9(1) of Directive 2000/78, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 79).165A provision of national law which granted exclusive jurisdiction to hear and rule on a case in which an individual pleads, as in the present cases, an infringement of rights arising from rules of EU law in a particular court which does not meet the requirements of independence and impartiality arising from Article 47 of the Charter would deprive that individual of any effective remedy within the meaning of that article and of Article 9(1) of Directive 2000/78, and would fail to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter (see, by analogy, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 72).166It follows that, where it appears that a provision of national law reserves jurisdiction to hear cases, such as those in the main proceedings, to a court which does not meet the requirements of independence or impartiality under EU law, in particular, those of Article 47 of the Charter, another court before which such a case is brought has the obligation, in order to ensure effective judicial protection, within the meaning of Article 47, in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, to disapply that provision of national law, so that that case may be determined by a court which meets those requirements and which, were it not for that provision, would have jurisdiction in the relevant field, namely, in general, the court which had jurisdiction, in accordance with the law then in force, before the entry into force of the amending legislation which conferred jurisdiction on the court which does not meet those requirements (see, by analogy, judgments of 22 May 2003, Connect Austria, C‑462/99, EU:C:2003:297, paragraph 42, and of 2 June 2005, Koppensteiner, C‑15/04, EU:C:2005:345, paragraphs 32 to 39).167Furthermore, as regards Articles 2 and 19 TEU, provisions on which the referring court has also referred questions to the Court, it must be borne in mind that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 47 and the case-law cited).168The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law which is now enshrined in Article 47 of the Charter, so that the former provision requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of the latter provision, in the fields covered by EU law (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraphs 49 and 54 and the case-law cited).169In those circumstances, it does not appear necessary to conduct a distinct analysis of Article 2 and the second subparagraph of Article 19(1) TEU, which can only reinforce the conclusion already set out in paragraphs 153 and 154 above, for the purposes of answering the questions posed by the referring court and of disposing of the cases before it.170Lastly, it is also not necessary, in the present cases, for the Court to interpret Article 267 TFEU, to which the referring court also refers in its questions. In the order for reference, that court has provided no reasons as to why an interpretation of that article could be relevant for the purposes of resolving the points which it is called on to address in the actions in the main proceedings. In addition, in any event, it is clear that the interpretation of Article 47 of the Charter and of Article 9(1) of Directive 2000/78 given in paragraphs 114 to 154 above is sufficient for the purposes of providing a response capable of instructing the referring court in relation to the decisions which it is called on to make in those cases.171In the light of all of the foregoing considerations, the answer to the second and third questions referred in Cases C‑624/18 and C‑625/18 is:Article 47 of the Charter and Article 9(1) of Directive 2000/78 must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field. Costs 172Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. It is no longer necessary to answer questions referred by the Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court, Poland) in Case C‑585/18 or the first question referred by the same court in Cases C‑624/18 and C‑625/18. 2. The answer to the second and third questions referred by the referring court in Cases C‑624/18 and C‑625/18 is as follows: Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field. [Signatures]( *1 ) Language of the case: Polish.( i ) The wording of paragraph 115 and operative part 2 of this judgment has been amended since it was first put online. | 9cca5-6c9a2d8-4814 | EN |
The Polish legislation concerning the lowering of the retirement age of judges of the Supreme Court is contrary to EU law | 24 June 2019 ( *1 )(Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of Supreme Court judges — Application to judges in post — Possibility of continuing to carry out the duties of judge beyond that age subject to obtaining authorisation granted by discretionary decision of the President of the Republic)In Case C‑619/18,ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 2 October 2018, European Commission, represented by K. Banks, H. Krämer and S.L. Kalėda, acting as Agents,applicant,v Republic of Poland, represented by B. Majczyna, K. Majcher and S. Żyrek, acting as Agents,defendant,supported by: Hungary, represented by M.Z. Fehér, acting as Agent,intervener,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal (Rapporteur), M. Vilaras and E. Regan, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, L. Bay Larsen, D. Šváby, C. Vajda, P.G. Xuereb, N. Piçarra, L.S. Rossi and I. Jarukaitis, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 12 February 2019,after hearing the Opinion of the Advocate General at the sitting on 11 April 2019,gives the following Judgment 1By its application, the European Commission requests that the Court declare that, first, by lowering the retirement age of the judges appointed to the Sąd Najwyższy (Supreme Court, Poland) and by applying that measure to the judges in post appointed to that court before 3 April 2018 and, secondly, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Legal context European Union law The EU Treaty 2Article 2 TEU reads as follows:‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’3Article 19(1) TEU provides:‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ The Charter 4Title VI of the Charter, headed ‘Justice’, includes Article 47 thereof, entitled ‘Right to an effective remedy and to a fair trial’, which states as follows:‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ……’5As provided in Article 51 of the Charter:‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’ Polish law The Constitution 6Article 183(3) of the Constitution provides that the First President of the Sąd Najwyższy (Supreme Court) is appointed for a 6-year term.7Article 186(1) of the Constitution states:‘The Krajowa Rada Sądownictwa [National Council of the Judiciary] is the guardian of the independence of courts and judges.’8Article 187 of the Constitution provides as follows:‘1. The National Council of the Judiciary is composed of:(1)the First President of the [Sąd Najwyższy (Supreme Court)], the Minister for Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] and a person designated by the President of the Republic,(2)15 elected members from among the judges of the [Sąd Najwyższy (Supreme Court)], the ordinary law courts, the administrative courts and the military courts,(3)4 members elected by [the Sejm (the lower chamber of the Polish Parliament)] from among the deputies and 2 members elected by the Senate from among the senators.…3. The elected members of the National Council of the Judiciary shall have a mandate of 4 years.4. The regime applicable to the National Council of the Judiciary, its field of activity, its working procedure and the procedure by which its members are elected shall be laid down by law.’ The New Law on the Supreme Court 9Article 30 of the ustawa o Sądzie Najwyższym (Law on the Supreme Court), of 23 November 2002 (Dz. U. of 2002, heading 240), set the retirement age for judges of the Sąd Najwyższy (Supreme Court) at 70. Under that provision, the judges of that court also had the possibility, no later than 6 months before reaching the age of 70, to submit a declaration to the First President of that court indicating their wish to continue to carry out their duties and to present a certificate confirming that their health was no impediment to carrying out the duties of a judge, in which case they were legally entitled to carry out their duties until the age of 72.10On 20 December 2017, the President of the Republic signed the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, heading 5) (‘the New Law on the Supreme Court’), which entered into force on 3 April 2018. That Law was amended on several occasions, inter alia by the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws), of 10 May 2018 (Dz. U. of 2018, heading 1045) (‘the Amending Law of 10 May 2018’).11Under Article 37 of the New Law on the Supreme Court:‘1. A judge of the [Sąd Najwyższy (Supreme Court)] shall retire on the day of his 65th birthday, unless, not later than 6 months before that day and not earlier than 12 months before that day, he submits a declaration that he is willing to continue to carry out his duties and presents a certificate confirming that his health is no impediment to carrying out the duties of a judge, issued in accordance with the rules specified for candidates applying for the office of judge, and the President of the Republic of Poland grants authorisation for him to continue to carry out his duties at the [Sąd Najwyższy (Supreme Court)].1a Prior to granting authorisation for a judge to continue to carry out his duties as a judge of the [Sąd Najwyższy (Supreme Court)], the President of the Republic of Poland shall consult the National Council of the Judiciary. The National Council of the Judiciary shall provide the President of the Republic of Poland with an opinion within 30 days of the date on which the President of the Republic of Poland requests submission of such an opinion. If the opinion is not submitted within the period referred to in the second sentence, the National Council of the Judiciary shall be deemed to have submitted a positive opinion.1b. When drafting the opinion referred to in paragraph 1a, the National Council of the Judiciary shall take into account the interest of the system of justice or an important social interest, in particular the rational use of the staff of the [Sąd Najwyższy (Supreme Court)] or the needs arising from the workload of individual chambers of the [Sąd Najwyższy (Supreme Court)].2. The declaration and certificate referred to in paragraph 1 shall be submitted to the First President of the [Sąd Najwyższy (Supreme Court)], who shall promptly submit them, together with his or her opinion, to the President of the Republic of Poland. The First President of the [Sąd Najwyższy (Supreme Court)] shall submit his declaration and certificate together with the opinion of the College of the [Sąd Najwyższy (Supreme Court)] to the President of the Republic of Poland.3. The President of the Republic of Poland may grant authorisation for a judge of the [Sąd Najwyższy (Supreme Court)] to continue to carry out his duties within 3 months of the date of receipt of the opinion of the National Council of the Judiciary referred to in paragraph 1a, or within 3 months of the expiry of the period for the submission of that opinion. Failure to grant authorisation within the period referred to in the first sentence shall be tantamount to the judge retiring on the day of his 65th birthday. If the proceedings related to the extension of the mandate of a judge of the [Sąd Najwyższy (Supreme Court)] are not completed after the age referred to in paragraph 1 has been reached, the judge shall remain in his post until the proceedings are completed.4. The authorisation referred to in paragraph 1 shall be granted for a period of 3 years, no more than twice. The provisions of paragraph 3 shall apply mutatis mutandis. …’12Article 39 of that Law provides as follows:‘The President of the Republic of Poland shall ascertain the date on which a judge of the [Sąd Najwyższy (Supreme Court)] retires or is retired.’13Article 111 of that Law provides as follows:‘1. Judges of the [Sąd Najwyższy (Supreme Court)] who by the date of entry into force of this Law have reached the age of 65 or who will have reached the age of 65 within 3 months of the date of entry into force of this Law shall retire on the day following the expiry of 3 months from the date of entry into force of this Law, unless they submit the declaration and certificate referred to in Article 37(1) within 1 month of the date of entry into force of this Law and the President of the Republic of Poland grants authorisation for the judge of the [Sąd Najwyższy (Supreme Court)] to continue to carry out his duties. The provisions of Article 37(2) to (4) shall apply mutatis mutandis.1a Judges of the [Sąd Najwyższy (Supreme Court)] who reach the age of 65 between 3 and 12 months after the date of entry into force of this Law shall retire 12 months from the date of entry into force of this Law, unless they submit the declaration and certificate referred to in Article 37(1) within that period and the President of the Republic of Poland grants authorisation for the judge of the [Sąd Najwyższy (Supreme Court)] to continue to carry out his duties. The provisions of Article 37(1a) to (4) shall apply mutatis mutandis.’14The Amending Law of 10 May 2018 contains, in addition to provisions amending the New Law on the Supreme Court, certain autonomous provisions governing the procedure for the extension of the period of judicial activity of the judges of the Sąd Najwyższy (Supreme Court) who have reached the retirement age no later than 3 July 2018. Article 5 of that Amending Law is worded as follows:‘The President of the Republic of Poland shall transmit immediately to the National Council of the Judiciary for the purposes of obtaining its opinion the declarations referred to in Article 37(1) and Article 111(1) of the [New Law on the Supreme Court] which he has not examined by the date of entry into force of this Law. The National Council of the Judiciary shall deliver its opinion within 30 days from the date on which the President of the Republic of Poland invited it to present its opinion. The President of the Republic of Poland may authorise a judge of [Sąd Najwyższy (Supreme Court)] to continue to carry out his duties within 60 days from the date of receipt of the opinion of the National Council of the Judiciary or the expiry of the deadline for the submission of this opinion. The provisions of Article 37(2) to (4) of the [New Law on the Supreme Court], as amended by this Law, shall apply mutatis mutandis.’ Pre-litigation procedure 15Taking the view that, by the adoption of the New Law on the Supreme Court and the subsequent Laws amending that Law, the Republic of Poland had failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the Commission, on 2 July 2018, sent that Member State a letter of formal notice. The Republic of Poland replied by a letter dated 2 August 2018 in which it disputed all the allegations of infringement of EU law.16On 14 August 2018, the Commission issued a reasoned opinion in which it maintained that the national legislation mentioned in the preceding paragraph infringed those provisions of EU law. Consequently, that institution invited the Republic of Poland to take the measures necessary to comply with that reasoned opinion within 1 month of receiving it. That Member State replied to that reasoned opinion by a letter dated 14 September 2018 in which it denied the alleged infringements.17In those circumstances, the Commission decided to bring the present action. Procedure before the Court 18By separate document lodged at the Court Registry on 2 October 2018, the Commission lodged an application for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure of the Court of Justice, seeking an order that the Republic of Poland was, pending the judgment of the Court in the main action:–to suspend application of Article 37(1) to (4) and of Article 111(1) and (1a) of the New Law on the Supreme Court, of Article 5 of the Amending Law of 10 May 2018 and all other measures adopted in application of those provisions;to adopt all necessary measures to ensure that the judges of the Sąd Najwyższy (Supreme Court) affected by those provisions may carry out their duties in the same posts which they held at the date when the New Law on the Supreme Court came into force, namely 3 April 2018, while benefiting from the same staff regulations, the same rights and employment conditions as those under which they were employed until 3 April 2018;to refrain from any measure appointing judges to the Sąd Najwyższy (Supreme Court) in the place of those affected by those provisions, and any measure to appoint the new First President of that court or to indicate the person responsible for leading that court in the place of its First President until the appointment of the new First President; andto communicate to the Commission, at the latest 1 month after service of the order of the Court granting the interim measures sought and then regularly, each month, details of all the measures which it has adopted in order to comply fully with that order.19The Commission also requested, pursuant to Article 160(7) of the Rules of Procedure, that the interim measures mentioned in the preceding paragraph be granted before the defendant had submitted its observations, in view of the immediate risk of serious and irreparable damage for the principle of effective judicial protection in the context of the application of EU law.20By her order of 19 October 2018, Commission v Poland (C‑619/18 R, not published, EU:C:2018:852), the Vice-President of the Court provisionally granted that latter request pending the adoption of an order terminating the proceedings for interim measures.21On 23 October 2018, the Vice-President of the Court, in accordance with Article 161(1) of the Rules of Procedure, referred the application for interim measures to the Court which, having regard to its importance, assigned it to the Grand Chamber in accordance with Article 60(1) of the Rules of Procedure.22By order of 17 December 2018, Commission v Poland (C‑619/18 R, EU:C:2018:1021), the Court granted the Commission’s application for interim measures until delivery of the final judgment in the present case.23In addition, by his order of 15 November 2018, Commission v Poland (C‑619/18, EU:C:2018:910), the President of the Court, at the request of the Commission, decided that the present case was to be determined under the expedited procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 133 of the Rules of Procedure.24By order of 9 January 2019, the President of the Court granted Hungary leave to intervene in support of the form of order sought by the Republic of Poland. The action 25In its action, the Commission puts forward two complaints alleging infringement of the obligations on the Member States under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.26By its first complaint, the Commission alleges that the Republic of Poland failed to comply with those obligations inasmuch as the New Law on the Supreme Court, in breach of the principle of judicial independence and, in particular, of the principle of the irremovability of judges, provided that the measure lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) was to apply to judges in post who were appointed to that court before 3 April 2018, the date on which that Law entered into force. By its second complaint, the Commission alleges that that Member State failed to comply with those obligations by granting under that Law to the President of the Republic, in breach of the principle of judicial independence, the discretion to extend, twice, each time for a 3-year term, the period of judicial activity of judges of the Sąd Najwyższy (Supreme Court) beyond the newly fixed retirement age. Whether the proceedings have become devoid of purpose 27At the hearing, the Republic of Poland submitted that all the national provisions challenged by the Commission in its action have been repealed, and their effects eliminated, by the ustawa o zmianie ustawy o Sądzie Najwyższym (Law amending the New Law on the Supreme Court), of 21 November 2018 (Dz. U. of 2018, heading 2507), signed by the President of the Republic on 17 December 2018 and which entered into force on 1 January 2019.28According to that Member State, under that Law the serving judges of the Sąd Najwyższy (Supreme Court) who had previously been affected by the lowering of the retirement age under the New Law on the Supreme Court have been retained or re-instated in that court, under the conditions in force before the adoption of that latter law, the performance of their duties moreover being deemed to have continued without interruption. The provisions allowing the President of the Republic to authorise the extension of the period during which a judge of the Sąd Najwyższy (Supreme Court) may carry out his or her duties when the judge has reached the normal retirement age have also been repealed. In those circumstances, the present proceedings seeking a declaration of failure to fulfil obligations have, according to the Republic of Poland, become devoid of purpose.29The Commission, for its part, stated at the hearing that it was maintaining its action.30In this connection it must be recalled that it is settled case-law that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State at issue found itself at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, inter alia, judgment of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraph 41 and the case-law cited).31In the present case, it is common ground that at the date at which the time limit set by the Commission in its reasoned opinion expired, the provisions of the New Law on the Supreme Court which the Commission is challenging by the present action were still in force. It follows that it is necessary for the Court to rule on that action, even if the effect of the entry into force of the Law amending the New Law on the Supreme Court, of 21 November 2018, were to eliminate with retroactive effect all the effects of the national provisions challenged by the Commission, it not being open to the Court to take into account any such event since it took place after the expiry of the time limit set out in the reasoned opinion (see, to that effect, judgment of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraph 45). The scope of the action 32At the hearing, the Commission stated that, by its action, it is seeking, in essence, a declaration that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, has been infringed. According to the Commission, the concept of effective legal protection referred to in the second subparagraph of Article 19(1) TEU must be interpreted having regard to the content of Article 47 of the Charter and, in particular, the guarantees essential to the right to an effective remedy laid down in that latter provision, and accordingly the first of those provisions entails that the preservation of the independence of a body such as the Sąd Najwyższy (Supreme Court), which is entrusted, inter alia, with the task of interpreting and applying EU law, must be guaranteed.33For the purposes of ruling on the present action, it is therefore necessary to examine whether the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. The applicability and the scope of the second subparagraph of Article 19(1) TEU Arguments of the parties 34Relying, in particular, on the judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), the Commission submits that, to meet the obligation imposed on them by the second subparagraph of Article 19(1) TEU to provide for a system of legal remedies sufficient to ensure effective legal protection in the fields covered by Union law, the Member States are required, inter alia, to ensure that the national bodies which may rule on issues in relation to the application or interpretation of EU law meet the requirement in respect of judicial independence, that requirement being a key part of the fundamental right to a fair trial as guaranteed, inter alia, by the second paragraph of Article 47 of the Charter.35It submits that, since the Sąd Najwyższy (Supreme Court) constitutes such a body, the national provisions governing the composition, the organisational structure and the working method of that court should ensure that it meets that independence requirement.36That requirement concerns not only the way in which an individual case is conducted, but also the way in which the justice system is organised. The consequence of a national measure affecting, in general, the independence of the national courts is that an effective legal remedy is no longer guaranteed, inter alia when those courts apply or interpret EU law.37The Republic of Poland, supported in this connection by Hungary, submits that national rules such as those challenged by the Commission in the present action cannot be the object of a review in the light of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.38First, those provisions of EU law do not include any derogation from the principle of conferral which governs the competences of the European Union and which follows from Article 4(1) and Article 5(1) and (2) and Article 13(2) TEU. It is common ground that the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, so that the EU cannot arrogate competences in that domain.39Secondly, the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, like general principles of EU law such as the principle of judicial independence, are applicable only in situations governed under EU law.40According to the Republic of Poland, the national rules called into question by the Commission in the present case have no link with EU law and in this respect can be distinguished from the national legislation which was the subject matter of the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), legislation which, for its part, was connected with the grant of financial assistance by the European Union to a Member State in the context of combatting excessive budget deficits and which, consequently, was adopted pursuant to EU law.41Nor is Article 47 of the Charter applicable in the present case, having regard to the absence of any situation in which EU law is being implemented, within the meaning of Article 51(1) of the Charter. Moreover, it follows from Article 6(1) TEU, Article 51(2) of the Charter and Protocol No 30 on the application of the Charter to Poland and to the United Kingdom (OJ 2010 C 83, p. 313) that the Charter does not extend the scope of application of EU law beyond the European Union’s competences. Findings of the Court 42As is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member of the European Union, the European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them, EU law being based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values (see, to that effect, judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 63 and the case-law cited).43That premiss both entails and justifies the existence of mutual trust between the Member States and, in particular, their courts that those values upon which the European Union is founded, including the rule of law, will be recognised, and therefore that the EU law that implements those values will be respected (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 30, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 35).44Likewise, it is important to recall that, in order to ensure that the specific characteristics and the autonomy of the EU legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 35 and the case-law cited).45In particular, the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing that consistency and that uniformity in the interpretation of EU law, thereby serving to ensure its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 37).46Lastly, as is apparent from settled case-law, the European Union is a union based on the rule of law in which individuals have the right to challenge before the courts the legality of any decision or other national measure concerning the application to them of an EU act (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 31 and the case-law cited, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 49).47In that context, Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court of Justice (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 32, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 50 and the case-law cited).48In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective judicial protection for individuals in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34 and the case-law cited).49The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 35 and the case-law cited).50As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision moreover refers to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29).51Contrary to what has been claimed by the Republic of Poland and Hungary in this respect, the fact that the national salary reduction measures at issue in the case which gave rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117) were adopted due to requirements linked to the elimination of the excessive budget deficit of the Member State concerned and in the context of an EU financial assistance programme for that Member State did not, as is apparent from paragraphs 29 to 40 of that judgment, play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. That conclusion was reached on the basis of the fact that the national body which that case concerned, namely the Tribunal de Contas (Court of Auditors, Portugal), could, subject to verification to be carried out by the referring court in that case, rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fell within the fields covered by EU law (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40).52Furthermore, although, as the Republic of Poland and Hungary point out, the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (see, by analogy, judgments of 13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 45, and of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 57) and, in particular, from the second subparagraph of Article 19(1) TEU (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40). Moreover, by requiring the Member States thus to comply with those obligations, the European Union is not in any way claiming to exercise that competence itself nor is it, therefore, contrary to what is alleged by the Republic of Poland, arrogating that competence.53Lastly, in respect of Protocol (No 30), it must be observed that it does not concern the second subparagraph of Article 19(1) TEU and it should also be recalled that it does not call into question the applicability of the Charter in Poland, nor is it intended to exempt the Republic of Poland from the obligation to comply with the provisions of the Charter (see, to that effect, judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 119 and 120).54It follows from all of the foregoing that the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 54 and the case-law cited).55More specifically, every Member State must, under the second subparagraph of Article 19(1) TEU, ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 37, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 52).56In the present case, it is common ground that the Sąd Najwyższy (Supreme Court) may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law’ within the meaning of the second subparagraph of Article 19(1) TEU, so that that court must meet the requirements of effective judicial protection (order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 43).57To ensure that a body such as the Sąd Najwyższy (Supreme Court) is in a position to offer such protection, maintaining its independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 41, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 53).58That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 48 and 63).59Having regard to the foregoing, the national rules called into question by the Commission in its action may be reviewed in the light of the second subparagraph of Article 19(1) TEU and it is therefore necessary to examine whether the infringements of that provision alleged by that institution are established. The first complaint 60By its first complaint, the Commission alleges that the Republic of Poland infringed the second subparagraph of Article 19(1) TEU by reason of the fact that the New Law on the Supreme Court provided that the measure lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) was to apply to judges in post who were appointed to that court before 3 April 2018, the date on which that Law entered into force. In doing so, it claims, that Member State infringed the principle of judicial independence and, in particular, the principle of the irremovability of judges.61The Commission observes in this connection that, as a result of Article 37(1) and Article 111(1) and (1a) of the New Law on the Supreme Court, the judges of that court who reached the age of 65 before the date on which that Law entered into force, namely 3 April 2018 or, at the latest, 3 July 2018, theoretically retire on 4 July 2018, and those whose 65th birthday takes place between 4 July 2018 and 3 April 2019 must, theoretically, retire on 3 April 2019. In respect of the judges who reach the age of 65 after 3 April 2019, they should, theoretically, retire once they have reached the age of 65.62The Commission also points out that those national provisions have affected, immediately, 27 of the 72 judges of the Sąd Najwyższy (Supreme Court) who were in post at the date of the entry into force of the New Law on the Supreme Court, one of whom was the First President of that court. That institution also observes that, as regards the latter, in accordance with Article 183(3) of the Constitution, she was appointed on a 6-year mandate which was, in the present case, to have expired on 30 April 2020.63The Commission submits that, by thus lowering the retirement age applicable to judges in post within the Sąd Najwyższy (Supreme Court) while moreover enabling, under Articles 112 and 112a of the New Law on the Supreme Court, the President of the Republic to decide of his own motion, until 3 April 2019, to increase the number of posts within that court, the Republic of Poland has rendered possible a profound and immediate change in that court’s composition, infringing the principle of the irremovability of judges as a guarantee essential to their independence and, therefore, infringing the second subparagraph of Article 19(1) TEU.64The Commission takes the view that, while lowering the retirement age of judges cannot be entirely ruled out, appropriate measures, such as a transitional period or a phased approach, which prevent such lowering being used covertly as a means to change the composition of judicial bodies are, on any view, necessary in order, in particular, to avoid giving any impression that the reason for shortening the term of office of the judges concerned is in fact the actions carried out by those judges during their period of judicial activity and in order not to undermine their confidence in their security of tenure.65According to the Republic of Poland, the second subparagraph of Article 19(1) TEU does not require, in a case where the retirement age is lowered, that a transitional period must be provided for with regard to judges in post with a view to ensuring their independence. Since such a retirement age is generally and automatically applicable to all the judges concerned, it is not such as to give rise to pressure which could influence the persons concerned in the performance of their judicial office.66In the Polish legal order, the guarantees as to the independence of the judiciary are primarily linked to the protection of the permanent nature of judicial activity, including the guarantee of irremovability, to immunity, to proper remuneration, to the secrecy of deliberations, to incompatibility between holding judicial office and other public office, to the obligation to remain politically neutral and to the prohibition on exercising another economic activity. Dismissal of a judge is authorised only in the event of a disciplinary infringement of the most serious nature or a criminal conviction which has become final. The retirement of a judge does not constitute a dismissal, since the person concerned retains the title of judge and, in that capacity, still enjoys immunity and the right to proper remuneration, while continuing to be subject to various rules of professional conduct.67Furthermore, it follows from the judgments of 21 July 2011, Fuchs and Köhler (C‑159/10 and C‑160/10, EU:C:2011:508), and of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), that the Member States retain the option to adapt the employment conditions applicable to judges and, thus, their retirement age, in particular in order, as in the present case, to bring that retirement age into line with that provided for in the general retirement scheme, while improving the age structure of officers of the court concerned.68Lastly, were it necessary to find that the age at which a judge retires must depend on the law in force at the date as of which the person concerned began to carry out their duties, account would have to be taken, in the present case, of the fact that there was a reform to the retirement age of judges of the Sąd Najwyższy (Supreme Court) in 2002, re-establishing it at 70 years of age after it had been fixed at 65 years of age between 1990 and 2002. Yet, 17 of the 27 judges in post who were affected by the lowering of the retirement age resulting from the New Law on the Supreme Court were appointed between 1990 and 2002 so that, so far as they are concerned, there has been no shortening of the initial duration of their period in post.69Accepting as a criterion for the purposes of determining the retirement age of a judge of the Sąd Najwyższy (Supreme Court) the date at which that judge was appointed would, furthermore, lead to a risk of discrimination between the judges of that court, some of them, in particular those who were appointed after the entry into force of the New Law on the Supreme Court, being called upon to retire earlier than others who, for their part, were appointed prior to the entry into force of that Law at a time when the retirement age was 70.70According to Hungary, the Commission has not proved that the lowering of the retirement age of the judges of the Sąd Najwyższy (Supreme Court) and the retirement of some of the judges of that court which followed from that measure would be such as to affect that court’s capacity to guarantee effective judicial protection in the fields covered by European Union law.71The requirement that courts be independent, a requirement which the Member States must — under the second subparagraph of Article 19(1) of the TEU and as is apparent from paragraphs 42 to 59 of the present judgment — ensure is observed in respect of national courts which, like the Sąd Najwyższy (Supreme Court), are called upon to rule on issues linked to the interpretation and application of EU law, has two aspects to it.72The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 44 and the case-law cited).73The second aspect, which is internal in nature, is for its part linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited).74Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 53 and the case-law cited, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited).75In particular, that freedom of the judges from all external intervention or pressure, which is essential, requires, as the Court has held on several occasions, certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited).76The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed.77In that latter respect, it is apparent, more specifically, from the Court’s case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 67).78In the present case, it must be held that the reform being challenged, which provides that the measure lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) is to apply to judges already serving on that court, results in those judges prematurely ceasing to carry out their judicial office and is therefore such as to raise reasonable concerns as regards compliance with the principle of the irremovability of judges.79In those circumstances, and having regard to the cardinal importance of that principle, recalled in paragraphs 75 to 77 above, such an application is acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.80In the present case the Republic of Poland claims that the decision to lower to 65 the retirement age of the judges of the Sąd Najwyższy (Supreme Court) was taken with the goal of standardising that age with the general retirement age applicable to all workers in Poland and, in doing so, of improving the age balance among senior members of that court.81It must be stated in this connection, in the first place, that the Court has admittedly acknowledged that employment policy objectives such as those seeking, on the one hand, to standardise, in the context of professions in the public sector, the age limits for mandatorily ceasing activity and, on the other hand, to encourage the establishment of a more balanced age structure by facilitating the access for young people to, inter alia, the profession of judge may be regarded as legitimate (see, to that effect, judgments of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 50, and of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraphs 61 and 62).82However, it must be observed, first, that, as the Commission points out and as has already been observed by the European Commission for Democracy through Law (‘Venice Commission’), in points 33 and 47 of its Opinion No. 904/2017 (CDL-AD(2017)031), the explanatory memorandum to the draft New Law on the Supreme Court contains information that is such as to raise serious doubts as to whether the reform of the retirement age of serving judges of the Sąd Najwyższy (Supreme Court) was made in pursuance of such objectives, and not with the aim of side-lining a certain group of judges of that court.83Secondly, it is important to note that the lowering of the retirement age of the judges of the Sąd Najwyższy (Supreme Court) who were in post at the date of the entry into force of the New Law on the Supreme Court was accompanied in the present case by the implementation of a new mechanism allowing the President of the Republic to decide, on a discretionary basis, to extend the thus-shortened period during which a judge carries out his or her duties by two consecutive 3-year periods.84On the one hand, the introduction of that possibility of extending by 6 years the period for which the judge carries out his or her duties at the same time as the lowering by 5 years of the retirement age of judges of the Sąd Najwyższy (Supreme Court) who were in post upon the entry into force of the New Law on the Supreme Court is such as to raise doubts as to the fact that the reform made genuinely seeks to standardise the retirement age of those judges with that applicable to all workers and to improve the age balance among senior members of that court.85On the other hand, the combination of those two measures is also such as to reinforce the impression that in fact their aim might be to exclude a pre-determined group of judges of the Sąd Najwyższy (Supreme Court), since the President of the Republic, notwithstanding the application of the measure lowering the retirement age to all the judges of that court who were in post when the New Law on the Supreme Court came into force, retains the discretion to maintain in their post some of the persons concerned.86Thirdly, it must be held that the measure lowering by 5 years the retirement age of the judges of the Sąd Najwyższy (Supreme Court) who were in post at the time of the entry into force of the New Law on the Supreme Court and the shortening of the period during which those judges carry out their duties that resulted therefrom affected, immediately, almost a third of the serving members of that court, including, in particular, the First President of that court, whose 6-year mandate, guaranteed under the Constitution, was also shortened as a consequence. As the Commission submits, that finding demonstrates the potentially considerable impact of the reform at issue on the composition and the functional continuity of the Sąd Najwyższy (Supreme Court). As the Advocate General observed in point 76 of his Opinion, such a major restructuring of the composition of a supreme court, through a reform specifically concerning that court, may itself prove to be such as to raise doubts as to the genuine nature of such a reform and as to the aims actually pursued by it.87The doubts that thus surround the true aims of the reform being challenged and that result from all the considerations set out in paragraphs 82 to 86 above cannot be dispelled by the arguments put forward by the Republic of Poland according to which (a) some of the serving judges of the Sąd Najwyższy (Supreme Court) affected by that reform were appointed to that post at a time when the retirement age for judges of that court was fixed at 65 years of age and (b) such judges, once retired, nevertheless retain their judicial titles, continue to enjoy immunity and to receive emoluments and remain subject to various rules of professional conduct.88Those facts, even if they are taken to be established, are not such as to call into question the fact that the retirement of the judges concerned means the immediate and, in relation to that which was envisaged before the adoption of the reform being challenged, premature cessation of their period of judicial office.89In the second place, as the Republic of Poland confirmed at the hearing, the general retirement age for workers, with which that Member State stated it wished to bring into line the retirement age of the judges of the Sąd Najwyższy (Supreme Court), does not entail the automatic retirement of those workers but only the right, and not the obligation, for them to cease their professional activity and to receive, in that case, a retirement pension.90In those circumstances, the Republic of Poland has not demonstrated that the measure being challenged constitutes an appropriate means for the purposes of reducing the diversity of the age limits for the mandatory cessation of activities in respect of all the professions concerned. In particular, that Member State has not put forward any objective reason why, for the purposes of bringing the retirement age of judges of the Sąd Najwyższy (Supreme Court) into line with the general retirement age applicable to all workers in Poland, it was necessary to provide for the automatic retirement of those judges subject to a decision made on a discretionary basis by the President of the Republic to allow them to continue to carry out their duties whereas, for other workers, retirement at the age provided for by law is optional.91In the third place, it is important to note, with regard to the objective of standardising the retirement age, that the Court has already held that national provisions immediately and significantly lowering the age limit for compulsorily ceasing to serve as a judge, without introducing transitional measures of such a kind as to protect the legitimate expectations of the persons concerned who are in post upon the entry into force of those provisions, do not comply with the principle of proportionality (see, to that effect, judgment of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraphs 68 and 80).92As regards the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), to which the Republic of Poland also referred for the purposes of justifying the lawfulness of the national measure being challenged by the Commission in its first complaint, that judgment concerned a measure reducing the amount of the judges’ remuneration. In that judgment, the court held, after observing that that salary reduction measure was both limited, in terms of the amount, and temporary and that it had not been specifically adopted in respect of the members of the Tribunal de Contas (Court of Auditors, Portugal) but was, on the contrary, a measure of general application, that Article 19 TEU must be interpreted as meaning that the principle of judicial independence does not preclude the application of such a measure.93Seen from the perspective of the protection of judicial independence, the effects of that limited and temporary salary reduction are in no way comparable to the effects of a measure which consists in lowering the retirement age of serving judges which, for its part, has the result of ending, prematurely and definitively, the judicial career of the persons concerned.94In the fourth place, neither can the immediate application of the reform being challenged to the judges of the Sąd Najwyższy (Supreme Court) in post at the date of the entry into force of the New Law on the Supreme Court be justified by the concern, expressed by the Republic of Poland, to prevent any discrimination, in terms of the duration of judges’ period of judicial activity, between those judges and the judges who are appointed to that court after that date.95As the Commission contends, those two categories of judge are not in analogous situations, since only the career of the former category is shortened while they are in post within the Sąd Najwyższy (Supreme Court), the latter category, for their part, being required to be appointed to that court under the new legislation providing for a statutory retirement age of 65. Furthermore, and in so far as the Republic of Poland also suggests in its arguments that the judges already in post within the Sąd Najwyższy (Supreme Court) will not be granted, unlike their colleagues appointed after the entry into force of the New Law on the Supreme Court, the possibility of benefiting from the new retirement age introduced by that Law, it must be pointed out, as it was by the Commission, that it would have been possible to have provided for the option for the persons concerned to agree voluntarily to cease their period of judicial activity when they reach that new retirement age without therefore requiring them to do so.96Having regard to all the foregoing considerations, it must be held that the application of the measure lowering the retirement age of the judges of the Sąd Najwyższy (Supreme Court) to the judges in post within that court is not justified by a legitimate objective. Accordingly, that application undermines the principle of the irremovability of judges, which is essential to their independence.97It follows that the Commission’s first complaint, alleging breach of the second subparagraph of Article 19(1) TEU, must be upheld. The second complaint 98By its second complaint, the Commission alleges that the Republic of Poland infringed the second subparagraph of Article 19(1) TEU by granting, under the New Law on the Supreme Court, to the President of the Republic, the discretion to extend, twice, each time for a 3-year term, the period of judicial activity of judges of the Sąd Najwyższy (Supreme Court) beyond the new retirement age fixed in that Law.99According to the Commission, in the absence both of binding criteria governing the decision as to whether or not to grant such extensions to the period during which a judge carries out his or her duties and of the obligation to give reasons for such decisions and the possibility of their judicial review, the President of the Republic is in a position to exercise influence over the judges of the Sąd Najwyższy (Supreme Court). The prospect of having to apply to the President of the Republic for such extensions and then, once such applications have been introduced, waiting for the latter’s decision would be likely to create, for the judge concerned, pressure such as to lead him or her to comply with any wishes of the President of the Republic so far as the cases before that judge are concerned, including where he or she is called upon to interpret and apply provisions of EU law.100The obligation on the President of the Republic to consult the National Council of the Judiciary, provided for in Article 37(1a) and (1b), and Article 111a of the New Law on the Supreme Court and in Article 5 of the Amending Law of 10 May 2018, does not affect the foregoing conclusion. The criteria assigned to that Council for the purposes of issuing its opinion are too general and that opinion does not bind the President of the Republic. In addition, having regard to the recent reform of the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary), of 12 May 2011 (Dz. U. of 2011, heading 714), made by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other Laws), of 8 December 2017 (Dz. U. of 2018, heading 3), the 15 members of that Council who, out of the 27 members of which it is composed, must be elected from amongst the judges, would henceforth be elected not by their peers as previously but by the lower chamber of the Polish Parliament, so that doubt may be cast on their independence.101Lastly, the Commission submits that, so far as the judges of the Sąd Najwyższy (Supreme Court) who will reach the age of 65 after 3 July 2018 are concerned, no time limit has been set within which the President of the Republic must consult the National Council of the Judiciary, which has the potential effect of increasing the period during which the President of the Republic effectively has discretion over the retaining of the judge concerned in his or her post.102Those various factors are such as to lead to a situation in which the Sąd Najwyższy (Supreme Court) will no longer be regarded as providing the guarantee that it acts, in all circumstances, impartially and independently.103The Republic of Poland submits that the authorisation conferred on the President of the Republic to decide as to whether to allow the judges of the Sąd Najwyższy (Supreme Court) to continue to carry out their duties once they have reached retirement age constitutes a power derived from the prerogative to appoint judges conferred on him under the Constitution. That prerogative, the specific purpose of which is to protect the judiciary both from interference by the legislative authority and from that by the executive authority, should be exercised personally by the President of the Republic subject solely to constitutional rules and principles, and it is settled case-law that decisions of the President of the Republic refusing to appoint a candidate to a post as judge constitute acts which do not fall within the sphere of administrative activity and cannot be the subject of judicial proceedings.104Nevertheless, it contends, the opinions forwarded to the President of the Republic by the National Council of the Judiciary take into account, as is apparent from Article 37(1b) of the New Law on the Supreme Court, the interest of the system of justice or an important social interest, in particular the rational use of the staff of the Sąd Najwyższy (Supreme Court) or the needs resulting from the workload of individual chambers of that court. In addition, although such opinions cannot be binding on the President of the Republic without undermining the constitutional prerogatives of the latter mentioned in the preceding paragraph, it is obvious that, in practice, the President of the Republic will take those opinions into account. It is likewise clear that, even though that Law does not provide for any time limit in this connection, the President of the Republic will request the opinion of the National Council of the Judiciary as soon as he has received an application made by a judge of the Sąd Najwyższy (Supreme Court) for an extension to the period during which he or she may carry out his or her duties.105So far as the composition of the National Council of the Judiciary is concerned, the Republic of Poland states that it does not share the Commission’s concerns. It also submits that such concerns are of no relevance for the purposes of the assessment of the present case since the Commission in essence criticises that Member State for leaving the decision as to whether or not to authorise a judge of the Sąd Najwyższy (Supreme Court) to continue to carry out his or her duties beyond the statutory retirement age to the discretion of the President of the Republic, without there being any possibility of judicial review of that decision, and since the opinion of the National Council of the Judiciary is, for its part, in any event not binding upon the President of the Republic.106Lastly, the Republic of Poland takes the view that the judges of the Sąd Najwyższy (Supreme Court) will not, in practice, be influenced by the President of the Republic with the sole aim of extending the period during which they carry out their duties instead of retiring with the advantage of a good pension, given that the rule that deliberations are in secret will prevent the President from having any information as to the way in which each judge voted. Moreover, the period within which the President of the Republic must decide upon the application made by a judge to continue to carry out his or her duties, namely approximately 4 months, is relatively short.107Similar systems for the extension of the period of judicial activity beyond the normal retirement age furthermore exist in Member States other than the Republic of Poland and the renewal of the mandate of a judge of the Court of Justice of the European Union also itself depends upon the discretion of the government of the Member State of the judge concerned.108As pointed out in paragraphs 72 to 74 above, the guarantees of the independence and impartiality of the courts require that the body concerned exercise its functions wholly autonomously, being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions, with due regard for objectivity and in the absence of any interest in the outcome of proceedings. The rules seeking to guarantee that independence and impartiality must be such that they enable any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it to be precluded.109Here, it must be observed at the outset that the national rule which the Commission’s second complaint concerns does not deal with the process for the appointment of candidates to carry out the duties of judge, but with the possibility, for serving judges who thus enjoy guarantees essential to carrying out those duties, to continue to carry them out beyond the normal retirement age, and that that rule thereby concerns the conditions under which their careers progress and end.110Furthermore, although it is for the Member States alone to decide whether or not they will authorise such an extension to the period of judicial activity beyond normal retirement age, the fact remains that, where those Member States choose such a mechanism, they are required to ensure that the conditions and the procedure to which such an extension is subject are not such as to undermine the principle of judicial independence.111In that connection, the fact that an organ of the State such as the President of the Republic is entrusted with the power to decide whether or not to grant any such extension is admittedly not sufficient in itself to conclude that that principle has been undermined. However, it is important to ensure that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them.112To that end, it is necessary, in particular, that those conditions and procedural rules are designed in such a way that those judges are protected from potential temptations to give in to external intervention or pressure that is liable to jeopardise their independence (see, to that effect, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 103). Such procedural rules must thus, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, by analogy, judgments of 16 October 2012, Commission v Austria, C‑614/10, EU:C:2012:631, paragraph 43, and of 8 April 2014, Commission v Hungary, C‑288/12, EU:C:2014:237, paragraph 51).113In the present case, the conditions and the detailed procedural rules provided for under the New Law on the Supreme Court with regard to a potential extension beyond normal retirement age of the period for which a judge of the Sąd Najwyższy (Supreme Court) carries out his or her duties do not satisfy those requirements.114In that respect, in the first place, under the New Law on the Supreme Court, such an extension is now subject to a decision of the President of the Republic, which is discretionary inasmuch as its adoption is not, as such, governed by any objective and verifiable criterion and for which reasons need not be stated. In addition, any such decision cannot be challenged in court proceedings.115In the second place, with regard to the fact that the New Law on the Supreme Court provides that the National Council of the Judiciary is required to deliver an opinion to the President of the Republic before the latter adopts his or her decision, it is admittedly true that the intervention of such a body, in the context of a procedure for extending the period during which a judge carries out his or her duties beyond the normal retirement age, may, in principle, be such as to contribute to making that procedure more objective.116However, that is only the case in so far as certain conditions are satisfied, in particular in so far as that body is itself independent of the legislative and executive authorities and of the authority to which it is required to deliver its opinion, and in so far as such an opinion is delivered on the basis of criteria which are both objective and relevant and is properly reasoned, such as to be appropriate for the purposes of providing objective information upon which that authority can take its decision.117It is sufficient to note in this connection, as the Republic of Poland confirmed at the hearing, that the National Council of the Judiciary, when required to deliver such opinions to the President of the Republic, has, as a general rule and in the absence of any rule obliging it to state reasons for them, merely delivered opinions, whether positive or negative, for which sometimes no reasons at all have been stated or for which sometimes purely formal reasons have been stated which simply make general reference to the terms in which the criteria fixed in Article 37(1b) of the New Law on the Supreme Court are set out. In those circumstances, without it even being necessary to determine whether criteria such as those mentioned in that provision are sufficiently transparent, objective and verifiable, it must be stated that such opinions are not such as to be apt to provide the President of the Republic with objective information with regard to the exercise of the power with which he is entrusted for the purposes of authorising, or refusing to allow, a judge of the Sąd Najwyższy (Supreme Court) to continue to carry out his or her duties after he or she has reached the normal retirement age.118Having regard to the foregoing, it must be held that the discretion held by the President of the Republic for the purposes of authorising, twice and each time for a 3-year term, between the ages of 65 and 71, a judge of a national supreme court such as the Sąd Najwyższy (Supreme Court) to continue to carry out his or her duties is such as to give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests before them.119Lastly, the Republic of Poland’s argument as to an alleged similarity between the national provisions thus challenged and the procedures applicable in other Member States or applicable at the time of any renewal of the mandate of a judge of the Court of Justice of the European Union cannot succeed.120First, even if a procedure laid down in another Member State were to contain, from the perspective of the second subparagraph of Article 19(1) TEU, similar defects to those which have been noted with regard to the national provisions at issue in the present case, which has not been proven, the fact remains that a Member State cannot rely on a possible infringement of EU law by another Member State to justify its own default (see, to that effect, judgment of 6 June 1996, Commission v Italy, C‑101/94, EU:C:1996:221, paragraph 27 and the case-law cited).121Secondly, unlike members of the national judicial personnel, who are appointed until they reach statutory retirement age, the appointment of judges within the Court of Justice occurs, as provided for in Article 253 TFEU, for a 6-year fixed term. Moreover, under that article, a new appointment to such a post held by a judge whose mandate is coming to an end requires, as was the case in respect of the initial appointment of that judge, the common accord of the Governments of the Member States, after consultation of the panel provided for in Article 255 TFEU.122The conditions thus set under the Treaties cannot modify the scope of the obligations imposed on the Member States pursuant to the second subparagraph of Article 19(1) TEU.123It follows that the Commission’s second complaint, alleging breach of the second subparagraph of Article 19(1) TEU, and, accordingly, the action in its entirety, must be upheld.124Having regard to all the foregoing considerations, it must be held that, first, by providing that the measure consisting in lowering the retirement age of the judges of the Sąd Najwyższy (Supreme Court) is to apply to judges in post who were appointed to that court before 3 April 2018 and, secondly, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. Costs 125Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and the Republic of Poland has been unsuccessful, the latter must be ordered to pay the costs.126In accordance with Article 140(1) of the Rules of Procedure, Hungary is to bear its own costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that, first, by providing that the measure consisting in lowering the retirement age of the judges of the Sąd Najwyższy (Supreme Court, Poland) is to apply to judges in post who were appointed to that court before 3 April 2018 and, secondly, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; 2. Orders the Republic of Poland to pay the costs; 3. Declares that Hungary is to bear its own costs. [Signatures]( *1 ) Language of the case: Polish. | 1422a-1ffc677-49d9 | EN |
A situation in which a vehicle parked in a private garage of a building for more than 24 hours has caught fire, causing a fire originating in the vehicle's electrical system and causing damage to the building falls within the concept of ‘use of vehicles’ within the meaning of the directive on insurance against civil liability in respect of the use of motor vehicles | 20 June 2019 ( *1 )(Reference for a preliminary ruling — Insurance against civil liability in respect of the use of motor vehicles — Directive 2009/103/EC — Article 3, first paragraph — Concept of ‘use of vehicles’ — Damage to property as a result of a fire in a vehicle parked in the private garage of the property — Compulsory insurance cover)In Case C‑100/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 30 January 2018, received at the Court on 12 February 2018, in the proceedings Línea Directa Aseguradora, SA v Segurcaixa, Sociedad Anónima de Seguros y Reaseguros, THE COURT (Second Chamber),composed of A. Arabadjiev (Rapporteur), President of the Chamber, T. von Danwitz and P.G. Xuereb, Judges,Advocate General: Y. Bot,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of–Línea Directa Aseguradora SA, by M. Relaño, abogado,Segurcaixa, Sociedad Anónima de Seguros y Reaseguros, by C. Blanco Sánchez de Cueto, procurador, and by A. Ruiz Hourcadette, abogada,the Spanish Government, by L. Aguilera Ruiz and by V. Ester Casas, acting as Agents,the Lithuanian Government, by R. Krasuckaitė and G. Taluntytė, acting as Agents,the Austrian Government, by G. Hesse, acting as Agent,the United Kingdom Government, by S. Brandon, acting as Agent, and by A. Bates, Barrister,the European Commission, by H. Tserepa-Lacombe and by J. Rius, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11).2The request has been made in proceedings between Línea Directa Aseguradora SA (‘Línea Directa’) and Segurcaixa, Sociedad Anónima de Seguros y Reaseguros (‘Segurcaixa’), concerning the reimbursement of the compensation which Segurcaixa paid to the victim of a fire originating in the electrical circuit of a car insured by Línea Directa. Legal context European Union law 3Article 1 of Directive 2009/103 is worded as follows:‘For the purposes of this Directive:1.“vehicle” means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled;…’4Article 3 of that directive provides:‘Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of the measures referred to in the first paragraph.Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers:(a)according to the law in force in other Member States, any loss or injury which is caused in the territory of those States;(b)any loss or injury suffered by nationals of Member States during a direct journey between two territories in which the Treaty is in force, if there is no national insurers’ bureau responsible for the territory which is being crossed; in such a case, the loss or injury shall be covered in accordance with the national laws on compulsory insurance in force in the Member State in whose territory the vehicle is normally based.The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.’5Article 5 of that directive provides:‘1. A Member State may derogate from Article 3 in respect of certain natural or legal persons, public or private; a list of such persons shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.…2. A Member State may derogate from Article 3 in respect of certain types of vehicle or certain vehicles having a special plate; the list of such types or of such vehicles shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.6Article 13(1)(c) of that directive provides:‘1. Each Member State shall take all appropriate measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3 shall be deemed to be void in respect of claims by third parties who have been victims of an accident where that statutory provision or contractual clause excludes from insurance the use or driving of vehicles by:(c)persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned.’ Spanish law 7The Ley sobre responsabilidad civil y seguro en la circulación de vehículos a motor (Law on civil liability and motor vehicle insurance), codified by Real Decreto Legislativo 8/2004 por el que se aprueba el texto refundido de la Ley sobre responsabilidad civil y seguro en la circulación de vehículos a motor (Royal Decree-Law 8/2004 approving the revised text of the Law on civil liability and motor vehicle insurance) of 29 October 2004 (BOE No 267 of 5 November 2004, p. 36662), in the version applicable to the dispute in the main proceedings, provides in Article 1(1):‘Because of the risk involved in driving motor vehicles, drivers shall be liable for damage caused to persons or property as a consequence of its use.In the case of damage to persons, he will be exempt from this liability only if he can prove that the damage was due to the exclusive fault of the person harmed or to force majeure unconnected with the driving or functioning of the vehicle; defects in the vehicle or breakage or failure of any of its parts or mechanisms will not be considered force majeure.The driver shall be liable to third parties for damage to property if he bears civil liability under the provisions of Article 1902 et seq. of the [Código Civil (Spanish Civil Code)], Article 109 et seq. of the [Código Penal (Spanish Criminal Code)] or the provisions of this Law.If both the driver and the victim have been negligent, liability shall be apportioned fairly and compensation calculated on the basis of the liability of each party.Vehicle owners who were not driving and are related to the driver in one of the ways set out in Article 1903 of the Civil Code and Article 120(5) of the Criminal Code shall be liable for any physical injury or damage to property caused by the driver. The owner shall not be liable upon providing proof that he acted with all due care to prevent the damage.If the owner of a vehicle who was not driving is not covered by compulsory insurance, he shall bear joint civil liability with the driver for any physical injury or damage to property caused by the vehicle, unless he proves that the vehicle was stolen.’8Article 2(1) of the Reglamento del seguro obligatorio de responsabilidad civil en la circulación de vehículos de motor (Regulation on compulsory civil liability insurance for motor vehicles), codified by Real Decreto 1507/2008 por el que se aprueba el Reglamento del seguro obligatorio de responsabilidad civil en la circulación de vehiculos a motor (Royal Decree 1507/2008 approving the Regulation on compulsory insurance against civil liability in respect of the use of motor vehicles) of 12 September 2008 (BOE No 222 of 13 September 2008, p. 37487), reads as follows:‘For the purposes of civil liability in respect of motor vehicles and the compulsory insurance cover governed by this Regulation, incidents arising from use of a vehicle refer to any incident stemming from the risk created by the use of motor vehicles referred to in the previous article, both in garages and parking areas and on public and private roads, or terrain suitable for traffic, urban and interurban, and on roads or terrain which, although unsuitable, are in general use.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 9On 19 August 2013, Mr Luis Salazar Rodes parked his new car in the private garage of a building which is the property of Industrial Software Indusoft (‘Indusoft’).10On 20 August 2013, Mr Salazar Rodes, who wanted to show his car to a neighbour, started its engine but did not move it. On the night of 20 to 21 August 2013, Mr Salazar Rodes’ car, which had not been driven for more than 24 hours, caught fire, giving rise to a fire and damage to the Indusoft building. The electrical circuit of this car was the cause of the fire.11Mr Salazar Rodes had taken out insurance against civil liability in respect of the use of motor vehicles, from Línea Directa, an insurance company.12Indusoft had taken out home insurance with Segurcaixa, which paid it the total amount of EUR 44 704.34 for damage caused by that fire.13In March 2014, Segurcaixa brought an action against Línea Directa before the Juzgado de Primera Instancia de Vitoria-Gazteiz (Court of First Instance, Vitoria-Gazteiz, Spain) and claimed compensation of EUR 44 704.34, together with statutory interest, on the ground that the accident had originated in a ‘use of a vehicle’ covered by the insurance against civil liability in respect of the use of Mr Salazar Rodes’ vehicle. That court dismissed the action, taking the view that the fire in question could not be regarded as a ‘use of a vehicle’ within the meaning of Spanish law.14Segurcaixa brought an appeal against the judgment of the Juzgado de Primera Instancia de Vitoria-Gazteiz (Court of First Instance, Vitoria-Gazteiz) before the Audiencia Provincial de Álava (Provincial Court, Alava, Spain), which upheld that appeal and ordered Línea Directa to pay the compensation sought by Segurcaixa.15Línea Directa lodged an appeal in cassation against the judgment of the Audiencia Provincial de Álava (Provincial Court, Alava) before the Tribunal Supremo (Supreme Court, Spain).16The Tribunal Supremo (Supreme Court, Spain) noted that the Audiencia Provincial de Álava (Provincial Court, Alava) adopted a broad interpretation of the concept of ‘use of a vehicle’, according to which, for the purposes of Spanish law, this concept covers a situation in which a vehicle parked in a private garage on a non-permanent basis has caught fire, when this fire was started by causes specific to the vehicle and without the intervention of third parties.17In that context, the referring court considers that the central question is whether insurance against civil liability in respect of the use of motor vehicles covers an accident involving a vehicle when its engine was not running and when that vehicle, which was parked in a private garage, posed no risk to road users.18In that regard, the referring court observes that, according to its case-law, on the one hand, the concept of ‘use of a vehicle’, within the meaning of Spanish law, covers not only situations in which a vehicle moves, but also those in which the engine of the vehicle is not running or situations in which a vehicle stops in the course of a journey and catches fire.19On the other hand, the Tribunal Supremo (Supreme Court) has already held that a fire involving a vehicle parked on a public road and covered in order to be protected from freezing was not a situation which fell within the concept of ‘use of a vehicle’ within the meaning of Spanish law.20That court states that, according to its case-law, where a vehicle is stationary and the accident has no connection with the transport function of that vehicle, it is not a ‘use of a vehicle’ which can be covered by compulsory insurance.21In that context, the referring court observes that, under Spanish law, the driver is not liable for damage caused as a result of the use of a vehicle where such damage is due to a case of force majeure which is unconnected with the driving of the vehicle. However, neither the defects in a vehicle nor the breakdown or failure of one of its mechanisms are considered to constitute force majeure. Therefore, in situations in which the accident is caused by a defect in a vehicle, that defect would not exempt the driver from liability and therefore would not exclude the insurance cover against civil liability in respect of motor vehicles.22The referring court considers, first, that if the fire occurs when the vehicle is stationary, but that fire originates in a function necessary or useful for the movement of the vehicle, that situation should be considered to be linked to the normal function of the vehicle.23Secondly, a situation in which a vehicle is parked in a private garage could be excluded from the concept of ‘use of a vehicle’ within the meaning of Article 3 of Directive 2009/103 where, either in the absence of a temporal proximity between the previous use of the vehicle and the fire or because of the way in which the accident occurred, there is no connection between that accident and the use of the vehicle.24In this respect, the referring court adds that if no account is taken of the temporal connection between the earlier use of the vehicle and the occurrence of the accident, that could result in compulsory insurance against civil liability in respect of the use of motor vehicles being placed on the same footing as homeowner’s insurance covering liability arising from the mere possession or ownership of a vehicle.25In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does Article 3 of [Directive 2009/103] preclude an interpretation that includes in the compulsory insurance cover damage caused by a fire in a stationary vehicle when the fire has its origin in the mechanisms necessary to performing the transport function of the vehicle?(2)If the answer to the first question is negative, does Article 3 of Directive 2009/103 preclude an interpretation that includes in the compulsory insurance cover damage caused by a fire in a vehicle when the fire cannot be linked to previous movement of the vehicle, in such a way that no connection with a journey can be discerned?(3)If the answer to the second question is negative, does Article 3 of Directive 2009/103 preclude an interpretation that includes in the compulsory insurance cover the damage caused by a fire in a vehicle when the vehicle is parked in a closed private garage?’ Consideration of the questions referred The admissibility of the first question 26Línea Directa considers that the first question is inadmissible on the ground that it raises a purely hypothetical problem. That undertaking claims that the fact that the fire in question originated in the electric circuit of the vehicle concerned is the only uncontested fact established by the referring court. On the other hand, it is not established that the fire originated in the mechanisms necessary to perform the transport function of that vehicle.27In that regard, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 16).28However, in the present case, it is not manifestly evident that the interpretation of EU law sought in the context of the first question is unrelated to the actual facts of the main action or its purpose or that the problem is hypothetical. In that regard, it is apparent from the request for a preliminary ruling that that interpretation is intended to clarify the concept of ‘use of vehicles’, within the meaning of Article 3 of Directive 2009/103, on which the resolution of the dispute in the main proceedings, which concerns compensation for damage caused by a vehicle fire, depends. Furthermore, the referring court has provided sufficient factual and legal evidence to enable the Court to give a useful answer to the questions submitted to it. Substance 29By its questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court asks, in essence, whether the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that a situation, such as that at issue in the main proceedings, in which a vehicle parked in a private garage of a building has caught fire, giving rise to a fire, which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle had not been moved for more than 24 hours before the fire occurred, falls within the concept of ‘use of vehicles’ referred to in that provision.30The first paragraph of Article 3 of Directive 2009/103 provides that each Member State is, subject to Article 5 of that directive, to take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.31First, it must be observed that a vehicle such as that in issue in the main proceedings is covered by the concept of ‘vehicle’ referred to in Article 1(1) of Directive 2009/103, which is defined a ‘vehicle intended for travel on land and propelled by mechanical power, but not running on rails’. Further, it is undisputed that that vehicle was normally parked in the territory of a Member State and that it is not affected by any derogation adopted under Article 5 of that directive.32As regards the question whether a situation such as that at issue in the main proceedings comes within the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 of that directive, it must be borne in mind that that concept cannot be left to the discretion of each Member State, but is an autonomous concept of EU law which must be interpreted, in accordance with the Court’s settled case-law, in the light, in particular, of the context of that provision and the objectives pursued by the rules of which it is part (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 24).33Moreover, the aim of EU legislation concerning insurance against civil liability in respect of the use of vehicles, including Directive 2009/103, is, on the one hand, to ensure the free movement of vehicles normally based on European Union territory and of persons travelling in those vehicles, and, on the other hand, to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred (see, to that effect, judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraphs 25 and 26).34In addition, the development of that legislation shows that the objective of protecting the victims of accidents caused by those vehicles has continuously been pursued and reinforced by the EU legislature (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 27).35In the light of those considerations, the Court has ruled that the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that the concept of ‘use of vehicles’ in that provision is not limited to road use, that is to say, to travel on public roads, but that that concept covers any use of a vehicle that is consistent with the normal function of that vehicle (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 28).36The Court has stated that, as the motor vehicles referred to in Article 1(1) of Directive 2009/103, are, irrespective of their characteristics, intended normally to serve as a means of transport, that concept covers any use of a vehicle as a means of transport (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 29).37In that regard, it must be noted, first, that the fact that the vehicle involved in an accident was stationary when the accident occurred does not, in itself, preclude the use of that vehicle at that time from falling within the scope of its function as a means of transport and, therefore, within the scope of the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 of Directive 2009/103 (see, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company, C‑648/17, EU:C:2018:917, paragraph 38 and the case-law cited).38The question of whether or not the engine of the vehicle concerned was running at the time of the accident is not conclusive either (see, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company, C‑648/17, EU:C:2018:917, paragraph 39 and the case-law cited).39On the other hand, it should be recalled that, according to the Court’s case-law, no provision in Directive 2009/103 limits the scope of the insurance obligation, and of the protection which that obligation is intended to give to the victims of accidents caused by motor vehicles, to the use of such vehicles on certain terrain or on certain roads (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 31).40It follows that the scope of the concept of ‘use of vehicles’, within the meaning of the first paragraph of Article 3 of Directive 2009/103, does not depend on the characteristics of the terrain on which the vehicle is used and, in particular, the fact that the vehicle at issue is, at the time of the accident, stationary and in a car park (see, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company, C‑648/17, EU:C:2018:917, paragraphs 37 and 40).41In those circumstances, it must be held that the parking and the period of immobilisation of the vehicle are natural and necessary steps which form an integral part of the use of that vehicle as a means of transport.42Thus, a vehicle is used in accordance with its function as a means of transport when it moves but, in principle, also while it is parked between two journeys.43In the present case, it must be held that parking a vehicle in a private garage constitutes a use of that vehicle which is consistent with its function as a means of transport.44That conclusion is not affected by the fact that the vehicle was parked for more than 24 hours in that garage. Parking a vehicle presupposes that it remains stationary until its next trip, sometimes for a long period of time.45As regards the fact that the accident at issue in the main proceedings results from a fire caused by the electrical circuit of a vehicle, it must be held that, since that vehicle, which caused that accident, meets the definition of ‘vehicle’, within the meaning of Article 1(1) of Directive 2009/103, there is no need to distinguish between the parts of that vehicle which caused the harmful event or to determine the functions which that part performs.46Such an interpretation is consistent with the objective of protecting the victims of accidents caused by motor vehicles, which has continuously been pursued and reinforced by the EU legislature, as stated in paragraph 34 of this judgment.47It should also be noted that, in respect of claims by third parties who have been victims of an accident, it follows from Article 13 of Directive 2009/103 that any statutory or contractual provision excluding from insurance cover damage caused by the use or driving of a vehicle by a person who has not complied with the legal obligations of a technical nature concerning the condition and safety of the vehicle concerned, must be deemed void.48In the light of the foregoing considerations, the answer to the questions referred is that the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that a situation such as that at issue in the main proceedings, in which a vehicle parked in a private garage of a building, used in accordance with its function as a means of transport, has caught fire, giving rise to a fire which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle has not been moved for more than 24 hours before the fire occurred, falls within the concept of ‘circulation of vehicles’ referred to in that provision. Costs 49Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: The first paragraph of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, must be interpreted as meaning that a situation such as that at issue in the main proceedings, in which a vehicle parked in a private garage of a building, used in accordance with its function as a means of transport, has caught fire, giving rise to a fire which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle has not been moved for more than 24 hours before the fire occurred, falls within the concept of ‘use of vehicles’ referred to in that provision. [Signatures]( *1 ) Language of the case: Spanish. | fc70c-0f1a2f6-4ce5 | EN |
According to the framework agreement on fixed-term work, professors who are contract agents under public law are entitled to the same additional remuneration for grade as civil servant professors with the same seniority if the completion of a certain period of service is the only condition for granting that supplement | 20 June 2019 ( *1 )(Reference for a preliminary ruling – Social policy – Directive 1999/70/CE – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4(1) – Principle of non-discrimination – Public sector education – National provision granting additional remuneration only to teachers employed for an indefinite duration as established public officials – Exclusion of teachers employed under a fixed-term contract governed by public law – Concept of ‘objective grounds’ – Characteristics inherent in the status of established public officials)In Case C‑72/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Administrative Court No 1, Pamplona, Spain), made by decision of 26 January 2018, received at the Court on 5 February 2018, in the proceedings Daniel Ustariz Aróstegui v Departamento de Educación del Gobierno de Navarra, THE COURT (Second Chamber),composed of A. Arabadjiev (Rapporteur), President of the Chamber, R. Silva de Lapuerta, Vice-President of the Court, acting as a Judge of the Second Chamber, and C. Vajda, Judge,Advocate General: J. Kokott,Registrar: L. Carrasco Marco, Administrator,having regard to the written procedure and further to the hearing on 30 January 2019,after considering the observations submitted on behalf of:–Mr Ustariz Aróstegui, by J. Araiz Rodríguez, procurador, and M.J. Martínez García, abogado,the Departamento de Educación del Gobierno de Navarra, by I. Iparraguirre Múgica, letrado,the Spanish Government, by S. Jiménez García, acting as Agent,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and T. Larsen, N. Gabriel and M.J. Marques, acting as Agents,the European Commission, by M. van Beek and N. Ruiz García, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 March 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of clause 4 of the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the Framework Agreement’), which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).2The request has been made in proceedings between Mr Daniel Ustariz Aróstegui and the Departamento de Educación del Gobierno de Navarra (Ministry of Education of the Navarre Government, Spain; ‘the Ministry’) concerning the latter’s refusal to pay him additional remuneration for grade. Legal context EU law 3The purpose of Directive 1999/70, as provided in Article 1 thereof, is ‘to put into effect the framework agreement … concluded … between the general cross-industry organisations [European Trade Union Confederation (ETUC), Union of Industrial and Employers’ Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation (CEEP)].’4Pursuant to clause 1 of the Framework Agreement, the purpose of that agreement is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, second, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.5Clause 3 of the Framework Agreement, entitled ‘Definitions’, provides as follows:‘1.For the purpose of this agreement[,] the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.2.For the purpose of this agreement, the term “comparable permanent worker” means a worker with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills. …’6Clause 4 of the Framework Agreement, entitled ‘Principle of non-discrimination’, provides, in paragraph 1, as follows:‘In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.’ Spanish law 7Article 3(1) of the Texto Refundido del Estatuto del Personal al Servicio de las Administraciones Públicas de Navarra (consolidated text of the Staff Regulations for Officials working for the Public Administration of Navarre), approved by Decreto Foral Legislativo 251/1993 (Legislative Decree 251/1993 of 30 August 1993, ‘DFL 251/93’) provides as follows:‘Staff working for the Public Administration of Navarre shall comprise:(a)public officials;(b)non-permanent staff;(c)contract staff.’8Article 12 of DFL 251/93 provides:‘Officials of the Public Administration of Navarre shall be assigned to the following levels, depending on entry qualifications and the duties they perform …’9Article 13 of DFL 251/93 states:‘1. Each of the levels referred to in the previous article shall comprise seven grades.2. New entrants shall be assigned to grade 1 of the appropriate level.3. Officials may progress in stages from grade 1 to grade 7 of their respective level in accordance with Article 16 of these regulations.’10Article 16 of DFL 251/93 provides as follows:‘1. Officials may progress in stages from grade 1 to grade 7 of their respective level, regardless of the specialism of their academic qualification, training or profession.2. Grade progression shall take place annually as follows:it is an essential requirement for progression to a higher grade that an official should have spent at least two years in the previous grade;no official may remain for more than eight years in the same grade, except for those officials who have reached grade 7;without prejudice to the previous paragraphs, 10 per cent of the officials in grades 1 to 6 inclusive shall progress to the next grade in order of length of service;(d)up to 10 percent of officials in grades 1 to 6 inclusive may progress to the next grade immediately through a competition based on qualifications, which shall be held in accordance with regulations issued by the administration.’11The Fourth Transitional Provision of the DFL 251/93 provides:‘1. With effect from 1 January 1992 and until the regulations referred to in Article 13 of the [Ley Foral 5/1991 de Presupuestos Generales de Navarra para 1991 (Law 5/1991 on the General Budget for Navarre) of 26 February 1991], concerning changes to the current grade and length-of-service arrangements shall have been adopted, the system of grade progression established in Article 16 of these regulations is temporarily suspended, and from that date, those arrangements will be applied independently to each official, in accordance with his or her length of service in the corresponding grade, as follows:officials in grades 1 to 6 inclusive shall automatically progress to the next grade on completion of six years and seven months’ service in the previous grade;these new arrangements shall initially be applied on the basis of each official’s length of service in the grade on 31 December 1991. If, at that date, an official has more than six years and seven months’ service, the difference shall be treated as length of service in the next grade. The calculation of that length of service and its financial consequences shall apply provisionally until the legal actions concerning the extraordinary five-yearly length-of-service increment shall have been decided.2. As a consequence of the provisions in the previous paragraph, from the abovementioned date, and likewise temporarily, in the case of progress to a higher level within the same administration in accordance with Article 17 of these regulations, the same grade and length of service shall be maintained in that grade as were held in the level from which the official was promoted.’12Article 40(2) of the DFL 251/93 provides that the basic personal salary payments of officials comprises the starting salary for the relevant level, the additional remuneration for grade and the length-of-service supplement. That article also states that basic personal salary payments are an acquired right vested in public officials.13Article 11 of Decreto Foral 68/2009 por el que se le la contratación de personal en régimen administrativo en las Administraciones Públicas de Navarra (Decree 68/2009 governing employment of staff under public law contracts in the Public Administration of Navarre) of 28 September 2009, as amended by Decreto Foral 21/2017 (Decree 21/2017) of 29 March 2017 (‘Decree 68/2009’) states:‘Staff employed under a public law contract shall receive the appropriate salary for the post they occupy or the duties they perform, the length-of-service supplement and the family allowance. The additional remuneration for grade is excluded as a basic personal salary payment inherent in the status of a public official.’ The dispute in the main proceedings and the question referred for a preliminary ruling 14Mr Ustariz Aróstegui was recruited by the Ministry from September 2007 as a teacher under a fixed-term contract governed by public law. Since that date he has been working at a number of educational centres.15On 1 July 2016, Mr Ustariz Aróstegui requested the Ministry to pay him, with retrospective effect over four years, the additional remuneration for grade to which teachers who are public officials, who have the same length of service as the applicant, are entitled, pursuant to Decree 68/2009.16By application of 18 October 2016, he brought an administrative action against the implied refusal of that request. That action was dismissed on 23 December 2016 by an order of the Ministry.17On 28 February 2017, Mr Ustariz Aróstegui lodged an appeal against that order before the referring court, the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Administrative Court No 1, Pamplona, Spain).18The referring court notes that, under the legal regime currently in force in Navarre, the sole objective condition for payment of the additional remuneration for grade is to have completed 6 years and 7 months’ service in the previous grade, such that grade progression takes place automatically with the passage of time. It also states that, since the national legislation treats grades as a mechanism for promotion restricted to public officials, the additional remuneration for grade is considered to be a personal salary payment inherent to the status of public official, which therefore constitutes a subjective requirement for its grant.19The referring court further notes that Mr Ustariz Aróstegui satisfies the objective condition of having completed six years and seven months of service in his post, but does not satisfy the subjective requirement regarding public official status.20While pointing out that there is no difference between the duties, work and professional obligations of a teacher who is a public official and those of a teacher who is employed under a contract governed by public law, the referring court asks whether the nature and purpose of the additional remuneration for grade may constitute objective grounds justifying less favourable treatment of workers employed under a contract governed by public law.21In those circumstances the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Administrative Court No 1, Pamplona) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Must Clause 4 of the [Framework Agreement] be interpreted as precluding a regional legislative provision, such as that at issue in the main proceedings, which expressly excludes the award and payment to staff employed by the Public Administration of Navarre who are classified as “employed under a public law contract” (a fixed-term contract) of particular additional remuneration, on the grounds that the additional remuneration in question constitutes remuneration for promotion and development in a professional career that is open only to staff classified as “established public officials” (with a contract of indefinite duration)?’ Consideration of the question referred 22By its question, the referring court asks, in essence, whether clause 4(1) of the Framework Agreement must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts entitlement to additional remuneration to teachers employed for an indefinite duration as established public officials, to the exclusion of, in particular, teachers employed under fixed-term contracts governed by public law.23It must be recalled that clause 4(1) of the Framework Agreement prohibits, as regards employment conditions, less favourable treatment of fixed-term workers than of permanent workers in a comparable situation, solely because the former are employed for a fixed-term, unless different treatment is justified on objective grounds.24In the present case, it must be observed first, that, since Mr Ustariz Aróstegui was employed by the Ministry as a teacher under a fixed-term contract governed by public law, it is common ground that he falls within the concept of ‘fixed-term worker’ within the meaning of clause 4(1) of the Framework Agreement, read in conjunction with clause 3(1) thereof, and accordingly falls within the scope of those provisions.25As regards, secondly, the concept of ‘employment conditions’ within the meaning of clause 4(1) of the Framework Agreement, it is clear from the case-law of the Court that the decisive criterion for determining whether a measure falls within the scope of that concept is the criterion of employment, that is to say the employment relationship between a worker and his or her employer (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 41 and the case-law cited).26The Court has thus held that that concept covers three-yearly length-of-service increments (see, to that effect, judgment of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 50, and order of 18 March 2011, Montoya Medina, C‑273/10, not published, EU:C:2011:167, paragraph 32), six-yearly continuing professional education increments (see, to that effect, order of 9 February 2012, Lorenzo Martínez, C‑556/11, not published, EU:C:2012:67, paragraph 38), participation in a professional evaluation plan and the ensuing financial incentive in the event of a positive assessment (order of 21 September 2016, Álvarez Santirso, C‑631/15, EU:C:2016:725, paragraph 36) and participation in a regime for horizontal career progression giving rise to additional remuneration (order of 22 March 2018, Centeno Meléndez, C‑315/17, not published, EU:C:2018:207, paragraph 47).27In the present case, since completion of a period of six years and seven months’ service is, as is apparent from the information provided by the referring court, the sole objective condition for the grant of that additional remuneration, such remuneration is paid specifically because of the employment relationship, so that, in those circumstances, its grant must be regarded as an ‘employment condition’ within the meaning of clause 4(1) of the Framework Agreement.28Thirdly, it must be recalled that, in accordance with the Court’s settled case-law, the principle of non-discrimination, of which clause 4(1) of the Framework Agreement is a specific expression, requires that comparable situations should not be treated differently and that different situations should not be treated alike, unless such treatment is objectively justified (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 46 and the case-law cited).29In its written observations, the Ministry submitted, in that respect, that, as regards the case in the main proceedings, the difference in treatment between established public officials and staff employed under a public law contract described by Mr Ustariz Aróstegui does not fall within the prohibition laid down in clause 4(1) of the Framework Agreement, since it is not whether the employment relationship is fixed-term or permanent which defines, under national law, the right to the additional remuneration at issue in the main proceedings, but whether the employment relationship is statutory or contractual in nature.30In addition, the Spanish Government and the Ministry stated, at the hearing before the Court, that nor do teaching staff employed on a permanent basis under private-law contracts have any entitlement to that additional remuneration.31However, it is appropriate to point out that it follows from the wording of clause 4(1) of the Framework Agreement that it is sufficient for the fixed-term workers at issue to be treated in a less favourable manner than permanent workers in a comparable situation in order for those fixed-term workers to claim the benefit of that clause.32Accordingly, as observed in point 31 of the Advocate General’s Opinion, it is not necessary, for that purpose, for workers in fixed-term employment to be treated less favourably than all categories of permanent worker.33It is therefore necessary to consider whether the established public officials and the staff employed under a public law contract at issue in the main proceedings are in a comparable situation.34In order to assess whether the workers are engaged in the same or similar work, for the purposes of the Framework Agreement, it must be determined, in accordance with clauses 3(2) and 4(1) of the Framework Agreement, whether, in the light of a number of factors such as the nature of the work, training requirements and working conditions, those workers can be regarded as being in a comparable situation (judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 48 and the case-law cited).35In the present case, it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether established public officials are in a comparable situation to staff employed under a public law contract (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 49 and the case-law cited).36That being so, it is apparent from the order for reference that there is no difference between the duties, work and professional obligations of a teacher who is a public official and those of a teacher, such as Mr Ustariz Aróstegui, who is employed under a public law contract.37Therefore, subject to verification by the referring court in the light of all the relevant factors, it must be held that the situation of a fixed-term worker such as Mr Ustariz Aróstegui is comparable to that of a permanent worker employed by the Ministry.38In those circumstances, it must be held, as observed in point 44 of the Advocate General’s Opinion, that there is a difference in treatment consisting in the fact that contractual staff in the public sector are denied the additional remuneration at issue in the main proceedings, whereas, in a comparable situation, established public officials are entitled to that additional remuneration.39It is necessary to determine, fourthly, whether there is an objective ground, within the meaning of clause 4(1) of the Framework Agreement, capable of justifying such a difference in treatment.40According to the settled case-law of the Court, the concept of ‘objective grounds’ requires the observed unequal treatment to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. Those factors may result in particular from the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (see, inter alia, judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 53; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 55; and of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 54).41However, reliance on the mere temporary nature of the employment of staff employed under a public law contract, such as Mr Ustariz Aróstegui, does not meet those requirements and is therefore not, of itself, capable of constituting an objective ground within the meaning of clause 4(1) of the Framework Agreement. If the mere temporary nature of an employment relationship were to be held to be sufficient to justify a difference in treatment between fixed-term workers and permanent workers, the objectives of Directive 1999/70 and the Framework Agreement would be rendered meaningless and it would be tantamount to perpetuating a situation that is disadvantageous to fixed-term workers (judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 74 and the case-law cited).42In that regard, the Spanish Government and the Ministry claimed, in their written observations, that the additional remuneration at issue in the main proceedings constitutes a basic personal salary payment vested in public officials. More specifically, the Spanish Government and the Ministry claim that that additional remuneration is intended to reward a public official’s career development, which justifies excluding from that benefit, in particular, staff employed under a public law contract, since grade progression is not open to them.43In that regard, it should be recalled that, in view of the discretion enjoyed by Member States as regards the organisation of their own public administrations, those States can, in principle, without acting in a manner contrary to Directive 1999/70 or the Framework Agreement, lay down conditions for becoming career civil servants together with conditions of employment for those civil servants (judgments of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 57, and of 20 September 2018, Motter, C‑466/17, EU:C:2018:758, paragraph 43). Member States are thus entitled to lay down conditions of length of service for access to certain posts or to restrict access to internal promotion solely to civil servants, where that flows from the need to take account of objective requirements relating to the post in question and unrelated to the fixed-term of the employment relationship (see, to that effect, judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraphs 76 and 79).44However, an abstract and general condition to the effect that a person must have the status of a public official in order to benefit from an employment condition such as that at issue in the main proceedings, with no account being taken, in particular, of the specific nature of the tasks to be performed or their inherent characteristics, does not correspond to the requirements set out in paragraphs 40 and 41 of the present judgment (see, to that effect, judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 80).45Also, the Court has held that the public interest which attaches, in itself, to methods of entry to the civil service cannot justify a difference in treatment (see, to that effect, judgment of 25 July 2018, Vernaza Ayovi, C‑96/17, EU:C:2018:603, paragraph 46).46Therefore, as stated in point 51 of the Advocate General’s Opinion, the exclusion of staff employed under a contract governed by public law from the benefit of the additional remuneration at issue in the main proceedings, resulting from Article 11 of Decree 68/2009, cannot be justified unless the characteristics inherent in the status of public officials dictate the award of that benefit.47In the present case, it is apparent from the file submitted to the Court that the grant of that additional remuneration is linked not to the grade progression of the public official concerned but to length of service. In that regard, the fact that the additional remuneration at issue in the main proceedings was originally intended to recognise the merits of public officials in a system of career progression and was thus distinguished from a measure solely intending to reward length of service cannot lead to the conclusion that the additional remuneration is inherent in the status of public officials, since, under the transitional provisions applicable at the material time, the system for promotion to higher grades was suspended and replaced by legislation which merely granted the right to that additional remuneration once a given period of service had been completed, which therefore removed any difference as compared to a simple length-of-service increment. Thus, subject to verification by the referring court, the additional remuneration at issue in the main proceedings is granted to public officials solely on account of their having completed a required period of service and has no effect on their position within the career development system.48Furthermore, as regards the argument put forward by the Spanish Government and the Ministry that there is a difference in the nature of the tasks of established public officials which is capable of justifying the preferential treatment they enjoy as compared to staff employed under a public law contract in a comparable situation, it must be noted that no concrete and specific evidence in that regard is apparent from the file submitted to the Court. In any event, such a difference could be relevant only if the purpose of the additional remuneration were to reward the performance of tasks that could be performed solely by public officials and not by staff employed under a fixed-term contract governed by public law. The fact, confirmed by the Ministry at the hearing before the Court, that the periods worked under fixed-term contracts governed by public law are fully taken into account when a staff member employed on a contractual basis is appointed as an established public official, contradicts the argument that the decisive factor for the grant of the additional remuneration is the performance of such tasks and that a staff member employed on a contractual basis would not have been able to perform that type of task prior to his or her appointment as an established public official (see, by analogy, order of 22 March 2018, Centeno Meléndez, C‑315/17, not published, EU:C:2018:207, paragraph 75).49Accordingly, it must be held that, subject to the factual verifications to be carried out by the referring court in that regard, there is, in the present case, no ‘objective ground’, within the meaning of clause 4(1) of the Framework Agreement, capable of justifying the exclusion of staff employed under a public law contract, who have completed the necessary service period, from entitlement to the additional remuneration at issue in the main proceedings.50In the light of the foregoing considerations, the answer to the question referred is that clause 4(1) of the Framework Agreement must be interpreted as precluding a national legislative provision such as that at issue in the main proceedings which restricts entitlement to particular additional remuneration to teachers employed for an indefinite duration as established public officials, to the exclusion of, in particular, teachers employed under fixed-term contracts governed by public law, if the completion of a certain period of service is the only condition for grant of that additional remuneration. Costs 51Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: Clause 4(1) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding a national legislative provision such as that at issue in the main proceedings which restricts entitlement to particular additional remuneration to teachers employed for an indefinite duration as established public officials, to the exclusion of, in particular, teachers employed under fixed-term contracts governed by public law, if the completion of a certain period of service is the only condition for grant of that additional remuneration. [Signatures]( *1 ) Language of the case: Spanish. | 45f18-933fc6d-4c3b | EN |
Advocate General Tanchev: the Court should rule that the new retirement rules for Polish judges are contrary to EU law | 5 November 2019 ( *1 )(Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by EU law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of judges of the ordinary Polish courts — Possibility of continuing to carry out the duties of judge beyond the newly set age, by authorisation of the Minister for Justice — Article 157 TFEU — Directive 2006/54/EC — Articles 5(a) and 9(1)(f) — Prohibition of discrimination based on sex in matters of pay, employment and occupation — Establishment of different retirement ages for men and women holding the position of judge of the ordinary Polish courts or of the Sąd Najwyższy (Supreme Court, Poland) or that of public prosecutor in Poland)In Case C‑192/18,ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 15 March 2018, European Commission, represented by A. Szmytkowska, K. Banks, C. Valero and H. Krämer, acting as Agents,applicant,v Republic of Poland, represented by B. Majczyna, K. Majcher and S. Żyrek, acting as Agents, and W. Gontarski, adwokat,defendant,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal (Rapporteur), M. Vilaras, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, L. Bay Larsen, D. Šváby and K. Jürimäe, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 8 April 2019,after hearing the Opinion of the Advocate General at the sitting on 20 June 2019,gives the following Judgment 1By its application, the European Commission requests the Court to declare:–first, that, in establishing, by Article 13(1) to (3) of the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017 (Dz. U. 2017, item 1452; ‘the Amending Law of 12 July 2017’), a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court, Poland) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23), andsecond, that, in lowering, by Article 13(1) of the Amending Law of 12 July 2017, the retirement age applicable to judges of the ordinary Polish courts and in granting the Minister for Justice (Poland) the right to decide whether to authorise extension of the period of active service as a judge, pursuant to Article 1(26)(b) and (c) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Legal context EU law The EU Treaty 2Article 2 TEU reads as follows:‘The [European] Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’3Article 19(1) TEU provides:‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ The FEU Treaty 4Article 157 TFEU provides:‘1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.2. For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.…3. The European Parliament and the Council [of the European Union], acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’ The Charter 5Title VI of the Charter, headed ‘Justice’, includes Article 47, headed ‘Right to an effective remedy and to a fair trial’, which provides:‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ……’6Article 51 of the Charter states:‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’ Directive 2006/54 7Recitals 14 and 22 of Directive 2006/54 state:‘(14)Although the concept of pay within the meaning of Article [157 TFEU] does not encompass social security benefits, it is now clearly established that a pension scheme for public servants falls within the scope of the principle of equal pay if the benefits payable under the scheme are paid to the worker by reason of his/her employment relationship with the public employer, notwithstanding the fact that such scheme forms part of a general statutory scheme. According to the [judgments of 28 September 1994, Beune (C‑7/93, EU:C:1994:350), and of 12 September 2002, Niemi (C‑351/00, EU:C:2002:480)], that condition will be satisfied if the pension scheme concerns a particular category of workers and its benefits are directly related to the period of service and calculated by reference to the public servant’s final salary. For reasons of clarity, it is therefore appropriate to make specific provision to that effect.(22)In accordance with Article [157(4) TFEU], with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment does not prevent Member States from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. Given the current situation and bearing in mind Declaration No 28 to the Amsterdam Treaty, Member States should, in the first instance, aim at improving the situation of women in working life.’8As set out in Article 1 of Directive 2006/54:‘The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.To that end, it contains provisions to implement the principle of equal treatment in relation to:(c)occupational social security schemes.9Article 2(1) of Directive 2006/54 states:‘For the purposes of this Directive, the following definitions shall apply:(a)“direct discrimination”: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;(f)“occupational social security schemes”: schemes not governed by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [(OJ 1979 L 6, p. 24)] whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.’10Headed ‘Positive action’, Article 3 of Directive 2006/54 provides:‘Member States may maintain or adopt measures within the meaning of Article [157(4) TFEU] with a view to ensuring full equality in practice between men and women in working life.’11Chapter 2, headed ‘Equal treatment in occupational social security schemes’, of Title II of Directive 2006/54 contains inter alia Articles 5, 7 and 9.12Article 5 of Directive 2006/54 states:‘… there shall be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards:the scope of such schemes and the conditions of access to them;13Headed ‘Material scope’, Article 7 of Directive 2006/54 provides:‘1. This chapter applies to:occupational social security schemes which provide protection against the following risks:(iii)old age, including early retirement,2. This Chapter also applies to pension schemes for a particular category of worker such as that of public servants if the benefits payable under the scheme are paid by reason of the employment relationship with the public employer. The fact that such a scheme forms part of a general statutory scheme shall be without prejudice in that respect.’14As set out in Article 9 of Directive 2006/54, headed ‘Examples of discrimination’:‘1. Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, for:fixing different retirement ages; Polish law The Law on the ordinary courts 15Article 69(1) and (3) of the ustawa — Prawo o ustroju sądów powszechnych (Law on the system of ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070; ‘the Law on the ordinary courts’) was worded as follows:1. A judge shall retire upon reaching 67 years of age … unless, no later than 6 months before reaching that age, he submits a statement to the Minister for Justice indicating his wish to continue in his post and presents a certificate, issued in accordance with the rules specified for candidates applying for a judicial post, confirming that his health is no impediment to performing the duties of a judge.3. In the event that a judge submits the statement and presents the certificate referred to in paragraph 1, that judge may continue in his post only until he reaches 70 years of age. …’16Article 69(1) of the Law on the ordinary courts was amended, first of all, by the ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw (Law amending the Law on retirement pensions and other pensions payable from the Social Security Fund and certain other laws) of 16 November 2016 (Dz. U. 2017, item 38; ‘the Law of 16 November 2016’), which lowered the retirement age of both female and male judges to 65 years. That amendment was to enter into force on 1 October 2017.17However, before that amendment even entered into force, Article 69(1) was further amended by Article 13(1) of the Amending Law of 12 July 2017, an enactment which entered into force on 1 October 2017. As a result of that amendment, a judge’s retirement age was set at 60 years for women and 65 years for men.18Article 1(26)(b) and (c) of the Amending Law of 12 July 2017 also inserted a new paragraph 1b in Article 69 of the Law on the ordinary courts and amended Article 69(3) thereof.19As a result of the amendments referred to in the previous two paragraphs, Article 69 provided:‘1. A judge shall retire upon reaching 60 years of age, in the case of women, or upon reaching 65 years of age, in the case of men, unless, no later than 6 months and no earlier than 12 months before reaching that age, he or she submits a statement to the Minister for Justice indicating his or her wish to continue in his or her post and presents a certificate, issued in accordance with the rules specified for candidates applying for a judicial post, confirming that his or her health is no impediment to performing the duties of a judge.1b. The Minister for Justice may consent to a judge continuing in his or her post, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts. In a situation where the procedure connected with the judge continuing in his or her post has still not come to an end after he or she has reached the age referred to in paragraph 1, the judge shall remain in post until such time as that procedure has come to an end.3. In the event that the Minister for Justice gives the consent referred to in paragraph 1b, a judge may continue in his or her post only until he reaches 70 years of age. …’20As set out in Article 91 of the Law on the ordinary courts:‘1. The level of remuneration for judges occupying equivalent judicial posts shall be differentiated according to the length of service or the functions performed:1c. The basic salary for a judge in a given year shall be based on the average remuneration in the second quarter of the previous year, published in the official gazette of the Republic of Poland (Monitor Polski) …2. The basic salary for a judge shall be expressed in grades, the level of which shall be determined through the application of multipliers to the basis for determining the basic salary referred to in paragraph 1c. The basic salary grades for individual judicial posts and the multipliers used to determine the level of the basic salary for judges in individual grades are set out in the annex to this Law. …7. In addition, remuneration for judges shall be differentiated by a seniority allowance amounting, as from the sixth year of service, to 5% of the basic salary and increasing each year by 1% until it reaches 20% of the basic salary.21Article 91a of the Law on the ordinary courts provides:‘1. A judge assuming a position at a [sąd rejonowy (district court, Poland)] shall be entitled to the grade 1 basic salary. A judge assuming a position at a [sąd okręgowy (regional court, Poland] shall be entitled to the grade 4 basic salary and if, while occupying a lower position, he was already receiving a grade 4 or grade 5 salary, he shall be entitled to the grade 5 or grade 6 basic salary, respectively. A judge assuming a position at a [sąd apelacyjny (court of appeal, Poland)] shall be entitled to the grade 7 basic salary and if, while occupying a lower position, he was already receiving a grade 7 or grade 8 salary, he shall be entitled to the grade 8 or grade 9 basic salary, respectively. …3. The basic salary for a judge shall be established at the next highest grade after the completion of 5 years’ service in a given judicial post.4. The length of service as a trainee judge shall be added to the length of service as a district court judge.22Article 13(1) of the Amending Law of 12 July 2017 amended Article 100(1) of the Law on the ordinary courts and inserted Article 100(4a) and (4b). Following those amendments, Article 100 provided:‘1. A judge who has been retired in the event of changes to the system of the courts or changes to the boundaries of judicial districts shall be entitled, until reaching the age of 60 years, in the case of women, and 65 years, in the case of men, to emoluments in the amount of remuneration received in the post most recently occupied.2. A judge who has retired or who has been retired on the grounds of age, illness or loss of strength shall be entitled to emoluments in the amount of 75% of the basic salary and length-of-service allowance received in the post most recently occupied.3. The emoluments referred to in paragraphs 1 and 2 shall be increased in accordance with changes to the amount of the basic salary for serving judges.4a. In the situation referred to in paragraph 1, a retired judge shall receive a one-off payment upon reaching the age of 60 years, in the case of women, and 65 years, in the case of men.4b. A judge who has returned to the post he previously occupied or a post equivalent to that previously occupied, in accordance with Article 71c(4) or Article 74(1a), shall, in the event of retirement or being retired, be entitled to a one-off payment in an amount consisting in the difference between the amount of the payment calculated on the day of retirement or being retired and the amount of the payment already paid. In the situation referred to in paragraph 1, the judge shall be entitled to the payment upon reaching the age of 60 years, in the case of women, and 65 years, in the case of men.’ The Law on the Public Prosecutor’s Office 23Article 127(1) of the ustawa Prawo o prokuraturze (Law on the Public Prosecutor’s Office) of 28 January 2016 (Dz. U. 2016, item 177) states:‘Unless otherwise provided for in this Law, the provisions of Articles 69 to 71, … Articles 99 to 102 … of the Law [on the ordinary courts] shall apply, mutatis mutandis, to public prosecutors. …’24As set out in Article 124 of the Law on the Public Prosecutor’s Office:‘1. The amount of remuneration for public prosecutors occupying equivalent public prosecutors’ posts shall be differentiated according to the length of service or the functions performed. …2. The basic salary for public prosecutors shall be expressed in grades, the level of which shall be determined through the application of multipliers to the basis for determining the basic salary for public prosecutors.3. A public prosecutor assuming a position in:a [prokuratura rejonowa (district public prosecutor’s office, Poland)] shall be entitled to the grade 1 basic salary;a [prokuratura okręgowa (regional public prosecutor’s office, Poland)] shall be entitled to the grade 4 basic salary and if, while occupying a lower position, he was already receiving a grade 4 or grade 5 salary, he shall be entitled to the grade 5 or grade 6 basic salary, respectively;a [prokuratura regionalna (supra-regional public prosecutor’s office, Poland)] shall be entitled to the grade 7 basic salary and if, while occupying a lower position, he was already receiving a grade 7 or grade 8 salary, he shall be entitled to the grade 8 or grade 9 basic salary, respectively.5. The basic salary for a public prosecutor shall be established at the next highest grade after the completion of 5 years’ service in a given public prosecutor’s post.6. The length of service as a trainee public prosecutor shall be added to the length of service as a public prosecutor in a [prokuratura rejonowa (district public prosecutor’s office)].11. A public prosecutor shall be entitled to a seniority allowance amounting, as from the sixth year of service, to 5% of the basic salary currently received by the public prosecutor and increasing by 1% for each subsequent year of service until it reaches 20% of the basic salary. After 20 years’ service the allowance shall be paid, regardless of the length of service beyond that period, in the amount of 20% of the basic salary currently received by the public prosecutor.25Article 13(3) of the Amending Law of 12 July 2017 amended certain other provisions of the Law on the Public Prosecutor’s Office, inserting in particular references to the new retirement ages for public prosecutors, that is to say, 60 years for women and 65 years for men. The 2002 Law on the Supreme Court 26Article 30(1) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 23 November 2002 (Dz. U. 2002, No 240, item 2052; ‘the 2002 Law on the Supreme Court’) set the retirement age for judges of the Sąd Najwyższy (Supreme Court) at 70 years. Article 30(2) provided, however, that judges who so requested could retire after reaching the age of 67 years.27Article 30(2) of the 2002 Law on the Supreme Court was amended, initially, by the Law of 16 November 2016 which lowered the age at which such a request could be made to 65 years. However, before that amendment even entered into force, that provision was amended again, by Article 13(2) of the Amending Law of 12 July 2017. As thus amended, Article 30(2) of the 2002 Law on the Supreme Court provided:‘A judge of [the Sąd Najwyższy (Supreme Court)] who so requests shall retire:(1)after reaching the age of 60 years, in the case of a woman, or 65 years, in the case of a man.28Articles 42 and 43 of the 2002 Law on the Supreme Court stated:‘Article 42.§ 4. The remuneration of a judge of [the Sąd Najwyższy (Supreme Court)] shall be set at the standard grade or the promotion grade. The promotion grade shall be 115% of the standard grade.§ 5. A judge of [the Sąd Najwyższy (Supreme Court)], on entering the service, shall receive a standard grade basic salary. After 7 years’ service, the basic salary for that judge shall increase to the promotion grade.Article 43. A judge of [the Sąd Najwyższy (Supreme Court)] shall be entitled to a seniority allowance increasing the basic salary every year by 1%, but not exceeding 20% of that salary. The period of service on which the amount of the allowance depends shall also include the period of service or the employment relationship preceding his appointment to a judicial post at [the Sąd Najwyższy (Supreme Court)], as well as periods of professional practice as a lawyer, legal adviser or notary.’29Article 50 of the 2002 Law on the Supreme Court was worded as follows:‘A retired judge of [the Sąd Najwyższy (Supreme Court)] shall be entitled to emoluments in the amount of 75% of the basic salary and length-of-service allowance received in the post most recently occupied. Those emoluments shall be increased at the same time as, and in an amount corresponding to, changes in the basic salary of serving judges of [the Sąd Najwyższy (Supreme Court)].’30The 2002 Law on the Supreme Court was repealed and replaced by the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. 2018, item 5; ‘the Law of 8 December 2017’), which entered into force on 3 April 2018. Pre-litigation procedure 31Since the Commission took the view that, as a result of the adoption of Article 1(26)(b) and (c) and Article 13(1) to (3) of the Amending Law of 12 July 2017, the Republic of Poland had failed to fulfil its obligations under (i) Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54 and (ii) the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, on 28 July 2017 it sent a letter of formal notice to the Republic of Poland. The latter replied by letter dated 31 August 2017 in which it denied any infringement of EU law.32On 12 September 2017, the Commission issued a reasoned opinion in which it maintained that the national provisions referred to in the previous paragraph infringed those provisions of EU law. Consequently, it called on the Republic of Poland to take the measures necessary to comply with the reasoned opinion within 1 month of receipt thereof. The Republic of Poland responded to the reasoned opinion by letter dated 12 October 2017 in which it denied the alleged infringements.33In those circumstances, the Commission decided to bring the present action. Procedure before the Court 34Following the written part of the procedure, in which the Republic of Poland lodged a defence and, subsequently, a rejoinder in response to the Commission’s reply, the parties presented oral argument at a hearing on 8 April 2019. The Advocate General delivered his Opinion on 20 June 2019, on which date the oral part of the procedure was consequently closed.35By document lodged at the Court Registry on 16 September 2019, the Republic of Poland requested the reopening of the oral part of the procedure. In support of that request, it states, in essence, that it disagrees with the Advocate General’s Opinion, which is said to be based, in particular, as is clear ‘from the content and context’ of certain points thereof and of similar points contained in his Opinion delivered on 11 April 2019 in Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:325), on an incorrect reading of the Court’s previous case-law, in particular of the judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), a reading which, moreover, was not debated between the parties.36In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the parties to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).37Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).38Nevertheless, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 28 and the case-law cited).39In the present case, the Court considers, however, after hearing the Advocate General, that it has, following the written part of the procedure and the hearing which has been held before the Court, all the information necessary in order to give judgment. Nor does the case have to be decided on the basis of an argument which has not been debated between the parties.40Accordingly, there is no need to order that the oral part of the procedure be reopened. The action Continued existence of the purpose of the proceedings 41The Republic of Poland contended in its rejoinder and at the hearing that the present action for failure to fulfil obligations is now devoid of purpose as a result of the entry into force, on 23 May 2018, of the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych, ustawy o Krajowej Radzie Sądownictwa oraz ustawy o Sądzie Najwyższym (Law amending the [Law on the ordinary courts], the Law on the National Council of the Judiciary and the [Law of 8 December 2017] of 12 April 2018 (Dz. U. 2018, item 848, ‘the Law of 12 April 2018’).42As regards the first complaint, alleging infringement of Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54, the Republic of Poland submits that Article 1(4) of the Law of 12 April 2018 amended Article 13(1) and (3) of the Amending Law of 12 July 2017 by repealing the distinctions between men and women relating to the retirement age of judges of the ordinary Polish courts and public prosecutors in Poland, which the Commission contests. The provisions relating to the retirement age of judges of the Sąd Najwyższy (Supreme Court) had, in the meantime, been replaced by those contained in the Law of 8 December 2017.43So far as concerns the second complaint, alleging infringement of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, the Republic of Poland submits that, as a result of the amendments made to Article 13(1) and Article 1(26)(b) and (c) of the Amending Law of 12 July 2017 by Article 1(4) of the Law of 12 April 2018, Article 69(1b) of the Law on the ordinary courts henceforth provides that it falls to the National Council of the Judiciary (Poland) and no longer to the Minister for Justice to authorise judges of the ordinary Polish courts to continue to carry out their duties beyond the age of 65 years. By virtue of those amendments, the National Council of the Judiciary is also called upon to adopt its decisions in that regard in the light of criteria that differ from those which applied hitherto as regards decisions of the Minister for Justice.44The Commission, for its part, stated at the hearing that it was maintaining its action.45Without there even being any need to examine whether or not the legislative amendments thereby relied upon by the Republic of Poland are capable of having brought the alleged failures to fulfil obligations to an end, in whole or in part, it is sufficient to note, as is clear from settled case-law, that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (judgment of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraph 41 and the case-law cited).46In the present case, it is common ground that, on the date on which the period laid down by the Commission in its reasoned opinion expired, the national provisions which the Commission is challenging by the present action were still in force. It follows that the Court should adjudicate on the action. The first complaint Arguments of the parties 47By its first complaint, the Commission contends that the distinctions made by Article 13(1) to (3) of the Amending Law of 12 July 2017 between women and men so far as concerns (i) the retirement age for judges of the ordinary Polish courts and public prosecutors in Poland and (ii) the age from which early retirement is possible in the case of judges of the Sąd Najwyższy (Supreme Court), namely, in both cases, 60 years for women and 65 years for men, constitute discrimination based on sex prohibited by Article 157 TFEU and by Articles 5(a) and 9(1)(f) of Directive 2006/54.48In the Commission’s submission, the pension schemes applicable to those three categories of judge or public prosecutor are covered by the concept of ‘pay’ within the meaning of Article 157 TFEU and fall within the scope of Directive 2006/54, since they satisfy the three criteria established by the Court’s case-law, namely that the retirement pension provided for by those schemes concerns only a particular category of workers, it is directly related to the period of service completed and its amount is calculated by reference to the final salary.49First, each of those schemes concerns a particular category of workers. Second, the amount of the retirement pension of the persons concerned is calculated on the basis of the pay received in respect of the last post occupied since it is set at 75% of that pay. Third, the pension is directly related to the period of service completed since it is apparent from the applicable national provisions that the number of years of service is a decisive factor when calculating both of the components of that pay, namely the basic salary and the seniority allowance.50Both Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54 preclude age conditions that differ according to sex from being set for the grant of such pensions.51Furthermore, the Commission takes the view that the distinctions at issue do not amount to positive action authorised under Article 157(4) TFEU and Article 3 of Directive 2006/54.52The Republic of Poland’s primary submission is that the pension schemes at issue are not covered by either Article 157 TFEU or Directive 2006/54, but by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), Article 7(1)(a) of which provides for the right of Member States to exclude from the directive’s scope the question of determination of pensionable age with grant of a pension. Indeed, those schemes do not satisfy one of the three criteria referred to in paragraph 48 of the present judgment, namely that the pension at issue must be directly related to the period of service completed.53The fact that the seniority allowance is limited to a maximum 20% of basic salary and that ceiling is reached after 20 years of service means, in fact, that the period of service is of only secondary importance when calculating the amount of the pension.54As for the basic salary, in view of the fact that, on taking up duties at a sąd rejonowy (district court) or at a prokuratura rejonowa (district public prosecutor’s office), a judge or public prosecutor receives remuneration set at the basic rate and that he is entitled to a basic salary at the next highest rate after 5 years in such a post, each judge or public prosecutor is entitled to the fifth increased rate, that is to say, the highest rate, after 20 years of service. The acquiring of higher rates as a result of rising to a post of a higher level depends on individual promotions of the judge or public prosecutor concerned and is not therefore directly related to the period of service completed.55Thus, under the applicable national provisions, all judges and public prosecutors, whether men or women, including those who have previously carried out other qualifying professional activities for service as a judge or public prosecutor, are entitled to the maximum seniority allowance and the maximum increased basic salary well before reaching retirement age. This means that the difference in retirement age for men and women introduced by the Amending Law of 12 July 2017 has no effect on the amount of the retirement pension received by those judges and public prosecutors, including in the event of early retirement, as a professional career of at least 25 years must be shown for early retirement.56Finally, the Republic of Poland states that, at the time when the provisions challenged by the Commission were still in force, transitional provisions existed, namely those laid down in Article 26(1) and (2) of the Law of 16 November 2016, pursuant to which all judges and public prosecutors, both female and male, covered by the Amending Law of 12 July 2017 and having reached the age of 60 years for women or 65 years for men no later than 30 April 2018 qualified for the retirement age as previously set, which was identical for men and women, by merely lodging a declaration within the prescribed statutory period and without any authorisation from any authority being required.57In the alternative, the Republic of Poland submits that the contested national provisions are ‘authorised positive action’ under Article 157(4) TFEU and Article 3 of Directive 2006/54. On account of their particular social role connected with motherhood and child raising, women have greater difficulties in maintaining continuous involvement in a professional career and are therefore promoted less often than men. The public interest dictates that the requirements laid down for such promotions must remain high and uniform, which makes it impossible to adopt specific relaxation measures in order to respond to the difficulties thus encountered by women in developing their career. The possibility of early retirement therefore constitutes indirect compensation for the difficulties that they thus suffer generally. Findings of the Court 58In the first place, it should be recalled that, under Article 157(1) TFEU, each Member State is to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. In accordance with the first subparagraph of Article 157(2) TFEU, pay is defined as being the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.59For the purpose of determining whether a retirement pension falls within the scope of Article 157 TFEU, the only criterion which may be regarded as decisive is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article (judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 45 and the case-law cited). Benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of that provision (judgment of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 42 and the case-law cited).60In accordance with settled case-law, a pension which concerns only a particular category of workers, which is directly related to the period of service completed and whose amount is calculated by reference to the final salary comes within the scope of Article 157 TFEU (judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 46 and the case-law cited).61In the present case, the judges of the ordinary Polish courts, judges of the Sąd Najwyższy (Supreme Court) and public prosecutors in Poland to whom the three pension schemes at issue apply must be considered to be three particular categories of workers for the purposes of the case-law recalled in the previous paragraph. It follows from settled case-law that civil servants who benefit under a pension scheme are distinguished from employees grouped within an undertaking or group of undertakings, in a particular sector of the economy, or in a trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies (judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 31 and the case-law cited, and of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 52 and the case-law cited).62Nor is it in dispute that in the present case the amount of the retirement pension paid to each of those three categories of judge or public prosecutor is calculated on the basis of the final salary of the person concerned. It is clear from Article 100(2) of the Law on the ordinary courts, Article 127(1) of the Law on the Public Prosecutor’s Office, which refers to Article 100 of the Law on the ordinary courts, and Article 50 of the 2002 Law on the Supreme Court that the amount of the pension paid to those judges and public prosecutors is set at 75% of the basic salary and seniority allowance received by them in respect of the last post occupied.63As regards the question whether such pensions are directly related to the period of service completed by the persons concerned, it must be stated, first, that it is apparent from Articles 91(1) and 91a(3) of the Law on the ordinary courts, Article 124(1) and (5) of the Law on the Public Prosecutor’s Office and Article 42(4) and (5) of the 2002 Law on the Supreme Court that the amount of the basic salary, which constitutes one of the two components of the final pay to which a percentage of 75% is applied for the purpose of calculating the amount of the pension payable to those various categories of judge or public prosecutor, changes, in particular, according to the length of service of the judge or public prosecutor concerned.64Second, as regards the other component of that final pay, namely the seniority allowance, it is clear from Article 91(7) of the Law on the ordinary courts, Article 124(11) of the Law on the Public Prosecutor’s Office and Article 43 of the 2002 Law on the Supreme Court that the number of years of service plays a part in the calculation of that allowance, as the allowance amounts to 5% of basic salary after 5 years of service and then increases by one percentage point per year of service for 15 years.65Furthermore, as the Commission has observed, since the seniority allowance is itself a percentage of the amount of that basic salary, which changes according to the length of service of the judge or public prosecutor concerned, it is determined also in this respect by reference to the period of service completed by the persons concerned.66Accordingly, the various circumstances relied upon by the Republic of Poland that are referred to in paragraphs 53 to 55 of the present judgment are entirely irrelevant for the purpose of determining whether the pensions paid under the pension schemes at issue are ‘pay’ within the meaning of Article 157 TFEU.67Such circumstances affect neither the fact that, as is clear from the findings made in paragraphs 63 to 65 of the present judgment, the period of service completed by the persons concerned plays, in the present case, a decisive role in the calculation of the amount of their pension nor the fact that the pensions paid under the pension schemes at issue essentially relate to the employment of the persons concerned, a factor which, under the settled case-law recalled in paragraph 59 of the present judgment, constitutes the decisive criterion for the purposes of classification as ‘pay’ within the meaning of Article 157 TFEU (see, to that effect, judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraphs 5 and 46; of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraphs 33 to 35; and of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480, paragraphs 45 and 55).68In this connection, it should be added that, as the Commission has submitted, that link between the pension and the employment of the persons concerned is further strengthened by the fact that it is apparent from Article 100(3) of the Law on the ordinary courts, Article 127(1) of the Law on the Public Prosecutor’s Office, which refers to Article 100(3) of the Law on the ordinary courts, and Article 50 of the 2002 Law on the Supreme Court that the pensions concerned are subject to increases which themselves depend on changes in the pay of serving judges and public prosecutors.69It follows from all the foregoing that pensions paid under schemes such as those established by the Law on the ordinary courts, the Law on the Public Prosecutor’s Office and the 2002 Law on the Supreme Court are ‘pay’ within the meaning of Article 157 TFEU.70So far as concerns Directive 2006/54, in particular Articles 5(a) and 9(1)(f), which in the Commission’s submission have also been infringed, both of those provisions are in Chapter 2 of Title II of the directive, a chapter which, as is apparent from its heading, contains provisions devoted to equal treatment in occupational social security schemes.71Article 7 of Directive 2006/54, which defines the material scope of Chapter 2, states in paragraph 2 that that chapter applies inter alia to pension schemes for a particular category of worker such as that of public servants if the benefits payable under the scheme are paid by reason of the employment relationship with the public employer.72In that regard, it is apparent from recital 14 of Directive 2006/54 that the EU legislature sought to take formal notice of the fact that, in accordance with the Court’s case-law recalled in paragraph 60 of the present judgment, a pension scheme for public servants falls within the scope of the principle of equal pay set out in Article 157 TFEU if the benefits payable under the scheme are paid to the worker by reason of his/her employment relationship with the public employer, that condition being satisfied if the pension scheme concerns a particular category of workers and its benefits are directly related to the period of service and calculated by reference to the public servant’s final salary.73It is clear from paragraphs 61 to 69 of the present judgment that the three pension schemes that the present action concerns satisfy those conditions, with the result that they fall within the material scope of Chapter 2 of Title II of Directive 2006/54 and, therefore, within that of Articles 5 and 9 of the directive.74In the second place, it should be noted that, as is clear from settled case-law, Article 157 TFEU prohibits any discrimination with regard to pay as between men and women, whatever the mechanism by which that inequality arises. According to that case-law, it is contrary to Article 157 TFEU to impose an age condition which differs according to sex for the grant of a pension that constitutes pay within the meaning of that provision (see, to that effect, judgments of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 32; of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480, paragraph 53; and of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 55).75Article 5(a) of Directive 2006/54 provides that there is to be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards the scope of such schemes and the conditions of access to them.76Article 9(1) of Directive 2006/54 identifies a number of provisions which, when they are based on sex, either directly or indirectly, are to be included among the provisions contrary to the principle of equal treatment. That is so, as is clear from Article 9(1)(f), inter alia in the case of provisions based on sex for fixing different retirement ages. The EU legislature thus decided that the rules to which Article 9(1) refers in the field of occupational social security schemes are contrary to the principle of equal treatment laid down by Directive 2006/54 (judgment of 3 September 2014, X, C‑318/13, EU:C:2014:2133, paragraph 48).77In the present case, it is not in dispute that, inasmuch as Article 13(1) to (3) of the Amending Law of 12 July 2017 sets the retirement age of judges of the ordinary courts and of public prosecutors, respectively, at 60 years for women and 65 years for men, and permits any early retirement of judges of the Sąd Najwyższy (Supreme Court) from the age of 65 years for men and 60 years for women, it fixes different retirement ages on the basis of sex.78In so doing, those provisions introduce directly discriminatory conditions based on sex into the pension schemes in question, in particular as regards the time when the persons concerned may have actual access to the advantages provided for by those schemes, and they therefore fail to comply both with Article 157 TFEU and with Article 5(1) of Directive 2006/54, in particular Article 5(1)(a), read in conjunction with Article 9(1)(f) of the directive.79In the third place, as regards the Republic of Poland’s argument that the setting, for retirement, of such age conditions that differ according to sex is justified by the objective of eliminating discrimination against women, it is clear from settled case-law that that argument cannot succeed.80Even though Article 157(4) TFEU authorises the Member States to maintain or adopt measures providing for specific advantages in order to prevent or compensate for disadvantages in professional careers, with a view to ensuring full equality between men and women in working life, it cannot be inferred that that provision permits the setting of such age conditions that differ according to sex. The national measures covered by that provision must, in any event, contribute to helping women to conduct their professional life on an equal footing with men (see, to that effect, judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 64, and of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 57).81The setting, for retirement, of an age condition that differs according to sex does not offset the disadvantages to which the careers of female public servants are exposed by helping those women in their professional life and by providing a remedy for the problems which they may encounter in the course of their professional career (judgment of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 58).82For the reasons set out in the previous two paragraphs, nor can such a measure be authorised on the basis of Article 3 of Directive 2006/54. As is apparent from the very wording of that provision and recital 22 of the directive, the measures to which that provision refers are solely those that Article 157(4) TFEU itself authorises.83In the fourth place, as regards the transitional measures relied on by the Republic of Poland in its rejoinder and at the hearing, it is sufficient to note that those measures in any event, as the Republic of Poland itself acknowledges, were capable of benefiting only female judges and public prosecutors who reached the age of 60 years before 30 April 2018. It thus follows from the foregoing that, on the relevant date for determining whether the present action is well founded, namely, as pointed out in paragraphs 45 and 46 of the present judgment, the date on which the period laid down in the reasoned opinion expired, the discrimination based on sex that the Commission criticises remained intact.84In the light of the foregoing considerations, the Commission’s first complaint, alleging infringement of Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54, must be upheld. The second complaint Scope of the complaint 85At the hearing, the Commission explained that, by its second complaint, it seeks, in essence, a declaration that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, has been infringed. According to the Commission, the concept of ‘effective legal protection’ in the second subparagraph of Article 19(1) TEU must in fact be interpreted while having regard to the content of Article 47 of the Charter and, in particular, to the guarantees inherent in the right, laid down in the latter provision, to an effective remedy, so that the first of those provisions entails that preservation of the independence of bodies such as the ordinary Polish courts, which are entrusted, inter alia, with the task of interpreting and applying EU law, must be guaranteed.86For the purpose of ruling on the present complaint, it is therefore necessary to examine whether the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.87Relying, in particular, on the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), the Commission contends that, in order for the Republic of Poland to comply with the obligation imposed on it by the second subparagraph of Article 19(1) TEU to establish a system of legal remedies ensuring effective judicial review in the fields covered by EU law, it is required, inter alia, to ensure that the national bodies which, like the ordinary Polish courts, may rule on questions relating to the application or interpretation of EU law meet the requirement of judicial independence, that requirement forming part of the essence of the fundamental right to a fair trial as resulting in particular from the second paragraph of Article 47 of the Charter.88According to the Commission, in lowering, by Article 13(1) of the Amending Law of 12 July 2017, the retirement age applicable to judges of the ordinary Polish courts to 65 years for men and 60 years for women while granting the Minister for Justice the right to decide whether to authorise extension of the period of active service as a judge to the age of 70 years, pursuant to Article 1(26)(b) and (c) of that law, the Republic of Poland has infringed the obligation referred to in the previous paragraph.89In that regard, the Commission submits that the criteria on the basis of which the Minister for Justice is called upon to adopt his decision are too vague and that the provisions at issue, furthermore, oblige him neither to grant authorisation, on the basis of those criteria, for the judge concerned to continue to carry out his duties nor to state reasons for his decision in the light of those criteria — a decision which, moreover, is not amenable to judicial review. Nor do those provisions specify the period within which or for how long the Minister for Justice’s decision must be taken or whether, in certain circumstances, it may or must be renewed.90According to the Commission, in view of the discretion thus vested in the Minister for Justice, the prospect of having to apply to him for authorisation to continue to carry out duties as a judge and, once such an application has been made, the wait for the minister’s decision for an unspecified period are liable to place the judge concerned under pressure of such a kind as to lead him to submit to any wishes of the executive so far as concerns the cases before him, including where he finds it necessary to interpret and apply provisions of EU law. The provisions at issue thus undermine the personal and operational independence of serving judges.91In the Commission’s submission, those provisions also undermine the irremovability of the judges concerned. The Commission emphasises, in this regard, that its complaint concerns not the measure lowering the judges’ retirement age in itself, but the fact that that reduction was accompanied here by the grant of such discretion to the Minister for Justice. According to the Commission, the judges must be protected against any decision arbitrarily denying them the right to continue to carry out their judicial duties, not only in the case of formal loss of their status resulting, for example, from dismissal, but also when the issue is whether to extend the carrying out of such duties beyond their retirement age, where they themselves wish to continue to act as a judge and their state of health so permits.92In that context, the Commission maintains that the argument put forward by the Republic of Poland that the provisions at issue had the aim of bringing the retirement age of judges of the ordinary Polish courts into line with the general retirement age applicable to workers is unfounded, as an infringement of the principle of judicial independence brooks no justification. In any event, the general pension scheme, unlike the contested scheme applicable to judges of the ordinary Polish courts, entails not the automatic retirement of workers, but only the right, and not the obligation, for them to stop working. Furthermore, it is apparent from the white paper of 8 March 2018 published by the Polish Government, which was devoted to reform of the Polish courts, that the aim of lowering the retirement age of judges was in particular to remove certain categories of judges.93The Republic of Poland submits, first, that national rules such as those contested by the Commission in its action relate to the organisation and proper operation of the national system of justice, which do not fall within EU law or the competence of the European Union, but within the exclusive competence and the procedural autonomy of the Member States. Such national rules cannot therefore be reviewed in the light of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter without extending excessively the scope of those provisions of EU law, which are intended to apply only in situations governed by EU law.94In the present instance, there is, in particular, no situation in which EU law is being implemented, within the meaning of Article 51(1) of the Charter. It follows, moreover, from Article 6(1) TEU and Article 51(2) of the Charter that the Charter does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union. The second subparagraph of Article 19(1) TEU lays down only a general obligation to adopt the necessary measures to ensure effective legal protection in the fields covered by EU law, and does not confer on the European Union competence so far as concerns adoption of the institutional rules relating to the judiciary, in particular those relating to the retirement age of judges, which do not display any real links with EU law.95Second, the Republic of Poland disputes that the irremovability of judges has been undermined in any way as irremovability concerns only serving judges and the national legislation at issue relates to judges who have already reached the statutory retirement age. Once retired, judges retain their status as a judge and acquire the right to a retirement pension which is markedly higher than the retirement benefits provided for by the general social security scheme. In the present instance, bringing the retirement age of judges into line with the retirement age under the general pension scheme applicable to workers cannot, moreover, be regarded as arbitrary or unjustified.96Third, it follows from the statutory criteria on the basis of which the Minister for Justice has to adopt his decision on any extension of the period for which a judge carries out his duties beyond the normal retirement age that a refusal to extend is acceptable only where refusal is justified by a small workload of the judge concerned in the court where he holds a post and the need to reassign that post to another court with a higher workload. Such a measure is legitimate in the light, in particular, of the fact that it is impossible, save in exceptional circumstances, to transfer judges to another court without their consent.97In any event, the fear that serving judges may, over a period of 6 to 12 months, be tempted to give rulings favourable to the executive, on account of uncertainty as to the decision which will be adopted regarding the possible extension of the period for which they carry out their duties, is unfounded. It is mistaken to believe that a judge may, after having acted as a judge for so many years, feel pressure linked to the fact that his duties may not be extended for a further few years. Nor does the guarantee of judicial independence necessarily entail a complete absence of relations between the executive and the judiciary. Thus, the renewal of the term of office of a judge of the Court of Justice of the European Union also itself depends upon the assessment of the government of the Member State of the judge concerned.– Applicability and scope of the second subparagraph of Article 19(1) TEU 98First of all, it should be pointed out that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 50 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 47).99In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure for individuals compliance with their right to effective judicial protection in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 48).100The principle of the effective judicial protection of individuals’ rights under EU law, thus referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 35 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 49).101As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 50).102Furthermore, although, as the Republic of Poland points out, the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited).103In that regard, every Member State must, under the second subparagraph of Article 19(1) TEU, in particular ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 55 and the case-law cited).104In the present case, it is not in dispute that the ordinary Polish courts may, in that capacity, be called upon to rule on questions relating to the application or interpretation of EU law and that, as ‘courts or tribunals’ within the meaning of EU law, they come within the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, so that those courts must meet the requirements of effective judicial protection.105To ensure that such ordinary courts are in a position to offer such protection, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (see, to that effect, judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 53 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 57).106That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 48 and 63, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 58).107In the light of the foregoing, the national rules which are the subject of the second complaint set out by the Commission in its action may be reviewed in the light of the second subparagraph of Article 19(1) TEU and it should accordingly be examined whether, as the Commission contends, the Republic of Poland has infringed that provision.– The complaint 108The requirement that courts be independent, a requirement which the Member States must — under the second subparagraph of Article 19(1) TEU — ensure is observed in respect of national courts which, like the ordinary Polish courts, are called upon to rule on issues relating to the interpretation and application of EU law, has two aspects to it (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 71).109The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 44 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 72).110The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 73).111Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 74).112As is also clear from settled case-law, the necessary freedom of judges from all external intervention or pressure requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 75).113The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 76).114In that latter respect, it is apparent, more specifically, from the Court’s case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 67, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 77).115Having regard to the cardinal importance of the principle of irremovability, an exception thereto is thus acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the courts concerned to external factors and their neutrality with respect to the interests before them (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 79).116In the present case, as explained both at the hearing and in its written pleadings, by its second complaint the Commission does not seek to criticise the measure lowering the retirement age of judges of the ordinary Polish courts in itself. This complaint is essentially directed at the mechanism with which that measure was coupled, under which the Minister for Justice has the right to authorise judges of those courts to continue actively to carry out judicial duties beyond the retirement age, as lowered. In the Commission’s submission, in the light of its characteristics that mechanism undermines the independence of the judges concerned in that it does not enable it to be guaranteed that they will carry out their duties wholly autonomously and be protected against external intervention or pressure. Furthermore, the combination of the measure and the mechanism undermines their irremovability.117In that regard, it should be noted, as a preliminary point, that the mechanism thus criticised by the Commission deals not with the process for the appointment of candidates to carry out judicial duties, but with the possibility, for serving judges who thus enjoy the guarantees inherent in carrying out those duties, to continue to carry them out beyond the normal retirement age, and that that mechanism accordingly concerns the conditions under which their careers progress and end (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 109).118Furthermore, although it is for the Member States alone to decide whether or not they will authorise such an extension to the period of judicial activity beyond the normal retirement age, the fact remains that, where those Member States choose to adopt such a mechanism, they are required to ensure that the conditions and the procedure to which such an extension is subject are not such as to undermine the principle of judicial independence (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 110).119As regards the need, noted in paragraphs 109 to 111 of the present judgment, to ensure that courts can exercise their functions wholly autonomously, objectively and without any interest in the outcome of the proceedings, while being protected against external intervention or pressure liable to impair the independent judgement of their members and to influence their decisions, it is true that the fact that an organ, such as the Minister for Justice, is entrusted with the power to decide whether or not to grant any extension to the period of judicial activity beyond the normal retirement age is not sufficient in itself to conclude that the principle of judicial independence has been undermined. However, it is necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 111).120To that end, it is necessary, in particular, that those conditions and procedural rules are designed in such a way that those judges are protected from potential temptations to give in to external intervention or pressure that is liable to jeopardise their independence. Such procedural rules must thus, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 112 and the case-law cited).121In the present case, the conditions and the detailed procedural rules which the contested national provisions impose in relation to the possibility that judges of the ordinary Polish courts continue to carry out their duties beyond the new retirement age do not satisfy those requirements.122First of all, Article 69(1b) of the Law on the ordinary courts provides that the Minister for Justice may decide whether or not to authorise such continuation on the basis of certain criteria. However, those criteria are too vague and unverifiable and, moreover, as the Republic of Poland conceded at the hearing, the minister’s decision is not required to state reasons, inter alia by reference to those criteria. Nor can such a decision be challenged in court proceedings (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 114).123Next, under Article 69(1) of the Law on the ordinary courts, the request for extension of the period for which judicial duties are carried out must be made by the judges concerned no earlier than 12 months and no later than 6 months before reaching the normal retirement age. Furthermore, as maintained by the Commission in its written pleadings and at the hearing without its being disputed by the Republic of Poland, that provision does not lay down a period within which the Minister for Justice must adopt his decision in that regard. That provision, in conjunction with Article 69(1b) of the Law on the ordinary courts which provides that, where a judge reaches the normal retirement age before the procedure for extending the period of judicial duties has ended, the person concerned is to remain in post until that procedure has come to an end, is such as to prolong the period of uncertainty for the judge concerned. It follows from the foregoing that the length of the period for which the judges are thus liable to continue to wait for the decision of the Minister for Justice once the extension has been requested, likewise, ultimately falls within the minister’s discretion.124Having regard to the foregoing, it must be found that the power held in the present instance by the Minister for Justice for the purpose of deciding whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to 70 years in the case of women and the age of 65 to 70 years in the case of men, is such as to give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests that may be the subject of argument before them (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 118).125Furthermore, that power fails to comply with the principle of irremovability, which is inherent in judicial independence (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 96).126In that regard, it is to be noted that that power was conferred on the Minister for Justice in the more general context of a reform that resulted in the lowering of the normal retirement age of, amongst others, judges of the ordinary Polish courts.127First, having regard, in particular, to certain preparatory documents relating to the reform at issue, the combination of the two measures referred to in the previous paragraph is such as to create, in the minds of individuals, reasonable doubts regarding the fact that the new system might actually have been intended to enable the Minister for Justice, acting in his discretion, to remove, once the newly set normal retirement age was reached, certain groups of judges serving in the ordinary Polish courts while retaining others of those judges in post (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 85).128Second, it should be pointed out that the period for which judges of the ordinary Polish courts carry out judicial duties that thus falls within the pure discretion of the Minister for Justice is considerable since it amounts to the final 10 years of performance of such duties in a female judge’s career and the final 5 years of their performance in a male judge’s career.129Third, it is to be recalled that, under Article 69(1b) of the Law on the ordinary courts, where a judge reaches the normal retirement age before the procedure for extending the period of judicial duties has ended, he or she is to remain in post until that procedure has come to an end. In such a situation, any decision of the Minister for Justice in the negative — which moreover, as already noted in paragraph 123 of the present judgment, is not subject to any time limit — is thus adopted after the judge concerned has been retained in post, as the case may be for a relatively long period of uncertainty, beyond the normal retirement age.130In the light of the considerations set out in paragraphs 126 to 129 of the present judgment, it must be found that, as the requirements noted in paragraphs 113 to 115 of the present judgment are not complied with, the combination of the measure lowering the normal retirement age to 60 years for women and 65 years for men and of the discretion vested in the present instance in the Minister for Justice for the purpose of granting or refusing authorisation for judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to 70 years in the case of women and 65 to 70 years in the case of men, fails to comply with the principle of irremovability.131The finding made in the previous paragraph is affected neither by the fact, relied on by the Republic of Poland, that the judges who are not authorised to continue to carry out their duties retain the title of judge or that they continue to enjoy immunity and high emoluments once they have been retired nor by its formal argument that the judges concerned can no longer benefit from the guarantee that they cannot be removed, on the ground that they have already reached the new statutory retirement age. In the latter regard, it has, moreover, already been pointed out, in paragraph 129 of the present judgment, that, as is apparent from Article 69(1b) of the Law on the ordinary courts, the Minister for Justice’s decision on whether to extend the period for which the persons concerned carry out their judicial duties may be adopted at a time when they have been retained in post beyond that new normal retirement age.132Finally, the Republic of Poland’s argument concerning a similarity between the national provisions thus challenged and the procedure applicable at the time of any renewal of the term of office of a judge of the Court of Justice of the European Union cannot succeed.133Unlike national judges who are appointed until they reach the statutory retirement age, the appointment of judges within the Court of Justice occurs, as provided for in Article 253 TFEU, for a six-year fixed term. Moreover, under that article, a new appointment to such a post held by a judge whose term of office is coming to an end requires, as was the case in respect of the initial appointment of that judge, the common accord of the Governments of the Member States, after consultation of the panel provided for in Article 255 TFEU (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 121).134The conditions thus set by the Treaties cannot modify the scope of the obligations imposed on the Member States pursuant to the second subparagraph of Article 19(1) TEU (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 122).135In the light of all the foregoing, the Commission’s second complaint, alleging infringement of the second subparagraph of Article 19(1) TEU, must be upheld.136The Commission’s action must therefore be upheld in its entirety, with the result that it should be declared:first, that, in establishing, by Article 13(1) to (3) of the Amending Law of 12 July 2017, a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54, andsecond, that, in granting, pursuant to Article 1(26)(b) and (c) of the Amending Law of 12 July 2017, the Minister for Justice the right to decide whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties beyond the new retirement age of those judges, as lowered by Article 13(1) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. Costs 137Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Republic of Poland has been unsuccessful, the latter must be ordered to pay the costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that, in establishing, by Article 13(1) to (3) of the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017, a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court, Poland) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation; 2. Declares that, in granting, pursuant to Article 1(26)(b) and (c) of the Law amending the Law on the system of ordinary courts and certain other laws of 12 July 2017, the Minister for Justice (Poland) the right to decide whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties beyond the new retirement age of those judges, as lowered by Article 13(1) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; 3. Orders the Republic of Poland to pay the costs. [Signatures]( *1 ) Language of the case: Polish. | 4f04f-5e86791-422c | EN |
The General Court upholds the Commission’s decision concerning State aid granted by Germany to the Nürburgring | 19 June 2019 ( *1 )(State aid — Individual aid in favour of the Nürburgring complex for the construction of a leisure park, hotels and restaurants as well as for the organisation of motor races — Decision finding the aid to be incompatible with the internal market — Decision finding that the reimbursement of the aid found to be incompatible does not concern the new owner of the Nürburgring complex — Action for annulment — No substantial effect on competitive position — Inadmissibility — Decision finding no State aid after the preliminary examination stage — Action for annulment — Interested party — Legal interest in bringing an action — Admissibility — Breach of procedural rights — No difficulties that would have required the initiation of a formal investigation procedure — Complaint — Sale of the assets of the beneficiaries of the State aid found to be incompatible — Open, transparent, non-discriminatory and unconditional tender process — Diligent and impartial examination — Obligation to state reasons)In Case T‑353/15, NeXovation, Inc., established in Hendersonville (United States), initially represented by A. von Bergwelt, F. Henkel and M. Nordmann, subsequently by A. von Bergwelt and M. Nordmann, lawyers,applicant,v European Commission, represented by L. Flynn, T. Maxian Rusche and B. Stromsky, acting as Agents,defendant,ACTION pursuant to Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2016/151 of 1 October 2014 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1),THE GENERAL COURT (First Chamber, Extended Composition),composed of I. Pelikánová, President, V. Valančius, P. Nihoul, J. Svenningsen and U. Öberg (Rapporteur), Judges,Registrar: N. Schall, Administrator,having regard to the written part of the procedure and further to the hearing on 30 January 2018,gives the following Judgment I. Background to the dispute 1The Nürburgring complex (‘the Nürburgring’), located in the German Land of Rhineland-Palatinate, consists of a race track, a leisure park, hotels and restaurants.2Between 2002 and 2012, the owners of the Nürburgring (‘the sellers’), namely the public undertakings Nürburgring GmbH, Motorsport Resort Nürburgring GmbH and Congress- und Motorsport Hotel Nürburgring GmbH, were the beneficiaries, mainly from the Land of Rhineland-Palatinate, of support measures regarding the construction of a leisure park, hotels and restaurants as well as the organisation of Formula 1 races. A. Administrative procedure and sale of the Nürburgring assets 3By letter of 21 March 2012, the European Commission notified the Federal Republic of Germany that it had decided to initiate a formal investigation procedure, under Article 108(2) TFEU, in respect of the various support measures implemented between 2002 and 2012 in favour of the Nürburgring. By that decision, a summary of which was published in the Official Journal of the European Union (OJ 2012 C 216, p. 14), the Commission invited interested parties to submit their comments on the measures concerned.4As a result of the granting of additional support measures which were notified to it by the Federal Republic of Germany, the Commission decided to extend the formal investigation procedure to those new measures. The decision was notified to the Federal Republic of Germany by letter of 7 August 2012. By that decision, a summary of which was published in the Official Journal (OJ 2012 C 333, p. 1), the Commission invited interested parties to submit their comments on those additional measures.5On 24 July 2012, the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler, Germany) made a finding that the sellers were insolvent. On 1 November 2012 it opened insolvency proceedings with no declining of jurisdiction. It was decided to proceed to the sale of the sellers’ assets (‘the sale of the Nürburgring assets’). The sellers designated the auditing firm KPMG AG as legal and financial advisor.6On 1 November 2012, management of the Nürburgring was entrusted to Nürburgring Betriebsgesellschaft mbH, a 100% subsidiary of one of the sellers, Nürburgring GmbH, consisting of the administrators designated by the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler).7On 15 May 2013, a tender process for the sale of the Nürburgring assets was launched (‘the tender process’).8On 23 May 2013, the Commission informed the Federal Republic of Germany and the administrators of the criteria which the tender process was required to meet in order to rule out any element of State aid and informed them of the obligation on the part of the successful buyer to reimburse such advantages as it might receive. Discussions had taken place in this regard between the Commission, the Federal Republic of Germany and the administrators since October 2012.9The tender process was carried out as follows:–The launch of the tender process was announced on 14 May 2013 with a press release issued by one of the administrators;A call for tenders was published by KPMG in the Financial Times, the Handelsblatt and on the Nürburgring website on 15 May 2013;70 entities expressed their interest;By letter of 19 July 2013, all interested investors received documentation on the Nürburgring and were invited to submit an indicative offer for the assets in their entirety, for defined asset clusters or for individual assets;The deadline for the submission of an indicative offer was set successively to 12 September 2013, by letter of 19 July 2013, and then to 26 September 2013, by letter of 12 September 2013; each of those letters indicated that offers submitted after expiry of the deadline would also be considered;At the beginning of February 2014, 24 potential buyers had submitted an indicative offer, including the applicant, NeXovation, Inc., a privately owned US undertaking operating in the information technology, consumer products, energy and automotive fields;For the potential buyers invited to proceed to the next stage of the tender process, including the applicant, the deadline for the submission of confirmatory offers, which had to be fully financed and include a pre-negotiated asset purchase agreement, was set successively to 11 December 2013, by letter of 17 October 2013, and then to 17 February 2014, by letter of 17 December 2013; that last letter indicated that offers submitted after expiry of the deadline would also be considered, but pointed out that the sellers could nevertheless choose the successful buyer shortly after expiry of the deadline for the submission of offers;13 potential buyers submitted confirmatory offers, four of which submitted an offer for the assets in their entirety, namely Capricorn Nürburgring Besitzgesellschaft GmbH (‘Capricorn’ or ‘the buyer’), a second bidder (‘Bidder 2’), the applicant and a fourth potential buyer;As set out in the letters sent to interested investors on 19 July and 17 October 2013, investors were to be selected on the basis of requirements relating to (i) the maximisation of the total proceeds for all the assets and (ii) transaction security; in accordance with those criteria, in the last stage of the tender process, the offers made by Bidder 2 and by Capricorn were considered, both of which (i) offered to buy all the Nürburgring assets and (ii) had provided proof of the financial solidity of their offers on 7 and 11 March 2014, respectively. Draft transfer agreements were negotiated with both tenderers simultaneously;On 11 March 2014, the committee of the sellers’ creditors, in the context of the sellers’ insolvency proceedings, approved the sale of the Nürburgring assets to Capricorn, which offered EUR 77 million, while Bidder 2 offered between EUR 47 million and EUR 52 million.10On 10 April 2014, the applicant filed a complaint with the Commission, on the ground that the tender process had not been open, transparent, non-discriminatory and unconditional and had not achieved a market price for the sale of the Nürburgring assets, since the assets had been transferred to a domestic tenderer, whose offer was lower than the applicant’s offer and which had been preferred in the tender process. According to the applicant, there was thus aid in favour of Capricorn, corresponding to the difference between the purchase price it had to pay for the Nürburgring assets and the market price of those assets, and Capricorn ensured the continuity of the sellers’ economic activities, so that the decision on recovery of the aid received by the sellers ought to be extended to Capricorn. B. The contested decisions 11The Commission adopted, on 1 October 2014, Decision (EU) 2016/151 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1) and, on 13 April 2015, a corrigendum to that decision, published on its website (together, ‘the final decision’).12In Article 2 of the final decision, the Commission found that certain support measures in favour of the sellers were unlawful and incompatible with the internal market (‘the aid to the sellers’).13The Commission decided, in Article 3(2) of the final decision, that any potential recovery of the aid to the sellers would not concern Capricorn or its subsidiaries (‘the first contested decision’).14In the final indent of Article 1 of the final decision, the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid (‘the second contested decision’).15The Commission took the view that the tender process had been conducted in an open, transparent and non-discriminatory manner, that that procedure had resulted in a sale price consistent with the market and that there was no economic continuity between the sellers and the buyer. II. Procedure and forms of order sought 16By application lodged at the Court Registry on 26 June 2015, the applicant brought the present action.17By letter of 15 October 2015, the Commission submitted a request for the translation of certain annexes to the application into the language of the case.18By document lodged at the Court Registry on 3 November 2015, the sellers sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 18 April 2016, the President of the Eighth Chamber of the General Court granted that leave to intervene.19By letter lodged at the Court Registry on 3 May 2016, the sellers informed the Court that they were withdrawing their intervention.20By order of the President of the Eighth Chamber of the General Court of 6 July 2016, the sellers were removed from the Court Register as interveners and ordered to bear their own costs and pay those of the other parties relating to their intervention.21By decision of the President of the General Court of 3 October 2016 a new Judge-Rapporteur was designated and the case was assigned to the First Chamber of the General Court.22On 31 July 2017, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, the Court put a written question to the Commission, asking it to reply in writing. The Commission lodged its observations in response on 6 September 2017.23Acting on a proposal from the First Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the case to a chamber sitting in extended composition.24On 29 November 2017, the Court (First Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, asked the parties to lodge certain documents and put to them written questions, asking them to reply in writing. The parties lodged their observations in response on 14 December 2017 and 8 January 2018, in the case of the applicant, and on 13 and 21 December 2017, in the case of the Commission.25By separate document lodged at the Court Registry on 24 January 2018, the Commission sought from the Court, under Article 130(2) of the Rules of Procedure, a decision that the present action had become devoid of purpose and that there was no longer any need to adjudicate on it.26The parties presented oral argument, and answered the questions put to them by the Court, at the hearing on 30 January 2018. On the same day, the Commission lodged its observations on the report for the hearing.27On 6 March 2018, by way of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court asked the parties to lodge certain documents and put to them written questions, asking them to reply in writing. In accordance with Article 24 of the Statute of the Court of Justice of the European Union, the Court also requested the Federal Republic of Germany to lodge certain documents and put to it written questions, asking it to reply in writing. The parties and the Federal Republic of Germany lodged their observations in response on 27 March 2018 and on 4 and 9 April 2018.28On 18 May 2018, the applicant lodged its observations on the Commission’s application for a decision that there is no need to adjudicate.29On 12 June 2018, the oral part of the procedure was closed.30By document lodged at the Court Registry on 20 July 2018, the Commission submitted an application under Article 113(2) of the Rules of Procedure for reopening the oral part of the procedure. By decision of the President of the First Chamber (Extended Composition) of the Court of 16 August 2018, that application was rejected.31In the context of the main proceedings, the applicant claims that the Court should:annul the first and second contested decisions;order the Commission to pay the costs.32In the context of those proceedings, the Commission contends that the Court should:dismiss the application as inadmissible in part and unfounded in part or, in the alternative, as unfounded;order the applicant to pay the costs.33In the context of the interlocutory procedure, the Commission claims that the Court should find that there is no longer any need to adjudicate on the case, without making any express application for costs.34In the context of that procedure, the applicant claims that the Court should dismiss the Commission’s application for a decision that there is no need to adjudicate, without making any express application for costs. III. Law 35In the circumstances of the present case, the Court’s decision on the Commission’s application for a decision that there is no need to adjudicate must be considered together with the substance of the case and it must be examined jointly with the applications for annulment of the first and second contested decisions formulated by the applicant in the main proceedings. A. Admissibility of the application for annulment of the first contested decision 36The applicant seeks, first, annulment of the first contested decision, whereby the Commission, after finding that there was no economic continuity between the sellers and the buyer, decided that any potential recovery of the aid to the sellers would not concern the buyer.37By its second plea, alleging misinterpretation of the principle of economic continuity, the applicant submits, inter alia, that since the sale of the Nürburgring assets did not achieve a market price, because the tender process was not open, transparent, non-discriminatory and unconditional and the Nürburgring assets were not sold to the highest bidder, there is economic continuity between the sellers and the buyer requiring that the decision on recovery of the aid to the sellers be extended to Capricorn.38According to the applicant, the first contested decision was adopted after a preliminary examination procedure, rather than a formal investigation procedure, since the decisions of 21 March and 7 August 2012 to initiate the formal procedure did not cover the issue of whether aid had been granted to Capricorn.39In its defence, the Commission claimed that the action is inadmissible, in so far as it seeks to challenge the first contested decision. It argued, inter alia, that, since it is a decision which is related and complementary to the decision adopted after a formal investigation procedure establishing the presence of incompatible aid to be recovered, the applicant cannot be regarded as individually concerned merely by demonstrating that it is an interested party, but that it must show that its position on the market was substantially affected by the aid to the sellers, with the result that its circumstances distinguish it individually just as the person addressed by such a decision would have been. According to the Commission, however, the applicant’s position on the market was affected no differently to that of any other tenderer.40Subsequently, however, the Commission concluded that there was no longer any need for the Court to adjudicate on the case, including on the application for annulment of the first contested decision, on the ground that the applicant had lost any legal interest in bringing an action.41In the present case, it is appropriate to begin by examining the plea of inadmissibility specifically raised by the Commission in its defence with regard to the application for annulment of the first contested decision.42In response to this plea of inadmissibility, the applicant’s main argument is that its position on the market was substantially affected by the granting of aid related to the sale of the Nürburgring assets to Capricorn, since it was removed, through the award of those assets, both from the market for the purchase of the Nürburgring and from the market for its operation.43In the first place, it must be recalled that, in its judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 104), the Court of Justice held that a decision on economic continuity must be regarded as a decision which is ‘related and complementary’ to the final decision preceding it on the aid concerned, in so far as it defines the scope thereof as regards the status of beneficiary of that aid and, therefore, as regards that of the party obliged to repay that aid, following the occurrence of an event after the adoption of that decision, such as the acquisition by a third party of the assets of the initial beneficiary of that aid.44In the present case, by the first contested decision, the Commission, after finding that there was no economic continuity between the sellers and the buyer, decided that any potential recovery of the aid to the sellers would not concern the buyer.45It is therefore appropriate to find that the first contested decision is a decision which is ‘related and complementary’ to the decision on the aid to the sellers, taken after the formal investigation procedure.46In the second place, it should be recalled that, under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.47In so far as the first contested decision concerns the aid to the sellers, which was granted as individual aid and not under an aid scheme, that aid cannot be equated with a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.48According to a consistent body of case-law, persons other than those to whom a decision is addressed may claim to be individually concerned by that decision only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 20).49Concerning State aid, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal examination procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid concerned (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 98 and the case-law cited; see also, to that effect, judgment of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 53 and the case-law cited).50The criterion of substantial effect serves to identify competitors that, as a result of aid, are distinguished individually in such a manner that they fulfil the requirements for admissibility as laid down in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17). Accordingly, competitors that have standing to bring an action are affected by that aid by being differentiated from all other persons and distinguished individually just as in the case of the person to whom the decision under challenge is addressed. Thus, the existence of a substantial effect on the applicant’s position on the market does not depend directly on the amount of the aid at issue, but on the significance of the adverse effect which that aid may have on that position. Such an adverse effect may vary, in respect of aid of a similar amount, in the light of criteria such as the size of the market concerned, the specific nature of the aid, the length of the period for which it was granted, whether the activity affected is the applicant’s main or ancillary activity, and the possibilities which the applicant has to circumvent the negative effects of the aid (see judgment of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 41 and the case-law cited).51The mere status of potential competitor is therefore insufficient to confer on an individual the right to bring an action before the EU Courts in order to challenge a decision adopted by the Commission after a formal investigation procedure.52In the present case, it is appropriate to find that the applicant played an active role in the procedure that preceded the adoption of the first contested decision, in that it lodged a complaint on 10 April 2014 on the ground that the tender process was unlawful and the decision on recovery of the aid to the sellers ought to be extended to the buyer.53It is, however, clear from the case-law cited in paragraph 49 above that it cannot be inferred solely from the applicant’s participation in the administrative procedure that it has standing to bring an action. The applicant must, in any event, show that the aid to the sellers was likely to affect substantially its position on the market.54In recital 20 of the final decision, the Commission stated that the support measures in favour of the sellers concerned the financing of the construction and operation of the Nürburgring facilities. In addition, in recitals 173 to 176 and 178 of the final decision, the Commission noted that the markets on which competition was likely to be distorted as a result of those measures were those concerning the operation of race tracks, off-road parks, leisure parks, accommodation facilities, restaurants, safety driving centres, driving schools, multifunctional halls, and cash-free payment systems as well as those concerning the promotion of tourism, project development, the construction of real property, business management and trade with cars or motor bikes (‘the relevant markets’). Lastly, in recital 180 of the final decision, the Commission indicated that the relevant markets could be considered to be EU-wide.55In response to one of the questions put by the Court in the context of the measures of organisation of procedure adopted on 29 November 2017 (see paragraph 24 above), the applicant conceded that, at the time of submitting the application and before that, it was not present on the relevant markets. Therefore, it held no position on the relevant markets that was likely to be affected, let alone substantially, by the aid to the sellers.56To the extent that the applicant submits, in essence, that it would have been able to acquire the Nürburgring assets and, therefore, enter the relevant markets, had it not been discriminated against in the tender process (see paragraph 10 above), and that it found it difficult to acquire or operate other race tracks, due to the loss of reputation and the negative publicity resulting from the setback in the tender process, it must be pointed out that its arguments cannot suffice, before the EU Courts and in the light of the case-law cited in paragraphs 49 to 51 above, to distinguish it individually with regard to the aid to the sellers and the first contested decision, in such a manner as to fulfil the requirements for admissibility laid down in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17).57It follows that the applicant has not shown that it is individually concerned by the first contested decision.58It should be remembered that the conditions for the admissibility of an action are cumulative (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 199). Thus, without there being any need to examine the applicant’s interest in bringing an action for annulment of the first contested decision, let alone the Commission’s application for a decision that there is no need to adjudicate based on the applicant’s loss of its legal interest in bringing an action for annulment of the first contested decision, it is appropriate to find that the action is inadmissible, in so far as it seeks annulment of the first decision, for lack of individual effect. B. The application for annulment of the second contested decision 59The applicant also seeks annulment of the second contested decision, whereby the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid. 1. Admissibility and the application for a decision that there is no need to adjudicate 60In its defence, the Commission expressed no doubt as to the admissibility of the action, in so far as it concerns the second contested decision. Subsequently, however, the Commission concluded that there was no longer any need for the Court to adjudicate, including on the application for annulment of the second contested decision, on the ground that the applicant had lost any legal interest in bringing an action. In that respect, the Commission also challenged the applicant’s standing to bring an action with regard to the second contested decision.61In the present case, it is appropriate to start by examining whether the applicant has standing to bring an action for annulment of the second contested decision, before exploring the extent to which it has and retains a legal interest in securing that annulment.62As to its standing, the applicant maintains that it is directly and individually concerned by the second contested decision. In that regard and according to the case-law, the applicant claims that its specific status of ‘interested party’ within the meaning of Article 1(h) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU] (OJ 1999 L 83, p. 1), in conjunction with the specific subject matter of the action, is sufficient to distinguish it individually, for the purposes of the fourth paragraph of Article 263 TFEU. Lastly, it submits that its position on the market was substantially affected by the aid allegedly granted to the buyer in the tender process.63In its application for a decision that there is no need to adjudicate, the Commission claims that the applicant cannot base its status of interested party on its status of potential buyer of the Nürburgring assets since, in a letter of 26 April 2016 addressed to the Commission, the Federal Republic of Germany stated that Capricorn had paid the purchase price of those assets in full and had waived its right to terminate the sales agreement in the event that the Commission should decide to recover the aid to the sellers from it. The Commission also submits that the applicant cannot base its status of interested party on its status of competitor of Capricorn either, since its replies to the questions put by the Court in the context of the measure of organisation of procedure adopted on 29 November 2017 (see paragraph 24 above) establish that the applicant was not active on the relevant markets.64In the context of the procedure for reviewing State aid, the preliminary examination stage for reviewing aid under Article 108(3) TFEU, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the investigation under Article 108(2) TFEU, which is designed to enable the Commission to be fully informed of all the facts of the case. It is only in connection with the procedure laid down in the latter provision that the FEU Treaty imposes the procedural guarantee consisting in the obligation, for the Commission, to give the parties concerned notice to submit their comments (judgments of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 22; of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 16; and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 35).65Where, without initiating the formal investigation procedure under Article 108(2) TFEU, the Commission finds, by a decision based on Article 108(3) TFEU, that a State measure does not constitute aid incompatible with the internal market, the persons intended to benefit from that procedural guarantee may secure compliance therewith only if they are able to challenge that decision before the EU Courts. For those reasons, the EU Courts declare to be admissible an action for annulment of such a decision brought by a party who is concerned within the meaning of Article 108(2) TFEU where it seeks, by instituting proceedings, to safeguard the procedural rights available to it under the latter provision (judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 36).66Thus, it must be held that any interested party must be regarded as being directly and individually concerned by a decision finding the absence of aid at the conclusion of the preliminary examination phase (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 68), bearing in mind that, where an interested party has lodged a complaint, refusal by the Commission to uphold that complaint must in any event be regarded as a refusal to initiate the procedure laid down in Article 108(2) TFEU (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraphs 51 to 54).67In the present case, the parties agree that the second contested decision is a decision adopted after the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, and not after a formal investigation procedure. Since the applicant cannot, for the reasons already mentioned in paragraphs 55 to 57 above, be regarded as fulfilling the requirements for admissibility as laid down in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17), it is appropriate, in order to ascertain whether it has standing to bring an action for annulment of the second contested decision, to determine whether it has proven to the requisite legal standard that it is an interested party.68Under Article 1(h) of Regulation No 659/1999, any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid are to be regarded as an ‘interested party’. In other words, that term covers an indeterminate group of addressees. That provision does not rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid may be categorised as an ‘interested party’, provided that that undertaking demonstrates that its interests could be adversely affected by the granting of the aid. It is sufficient for that undertaking to show to the requisite legal standard that the aid is likely to have a specific effect on its situation (see judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 63 to 65 and the case-law cited).69It follows that, in principle, any undertaking invoking the existence of an actual or potential competitive relationship may be regarded as having the status of interested party for the purposes of Article 108(2) TFEU.70In the present case, it must be held that the applicant has proven, by participating actively, up to the final stage, in the tender process and by lodging a complaint in that regard with the Commission, its genuine desire to enter the relevant markets and, therefore, its status of potential competitor of Capricorn, which had allegedly benefited, according to the complaint and in the light of the specific circumstances of the sale of the Nürburgring assets, from State aid, the existence of which the Commission rejected in the second contested decision.71Therefore, in the light of the considerations set out in paragraphs 68 and 69 above and of all the previous findings, the applicant’s status of interested party must be recognised with regard to the second contested decision.72As to the applicant’s legal interest in bringing an action, the Commission submits, in its application for a decision that there is no need to adjudicate, that the applicant lost that interest due, inter alia, to the fact that Capricorn had paid, allegedly, the purchase price of the Nürburgring assets in full and had waived its right to terminate the sales agreement in the event that the Commission should decide to recover the aid to the sellers from it (see paragraph 63 above).73It is important to recall, however, that ‘parties concerned’ within the meaning of Article 108(2) TFEU have a legal interest in securing the annulment of a decision taken after the preliminary examination stage, since, pursuant to the provisions of Article 108 TFEU, such annulment would require the Commission to initiate the formal investigation procedure, permitting them to submit their comments and thus exert an influence on the new Commission decision (judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraphs 62 and 64). In the present case, the applicant has a legal interest in having the second contested decision annulled in so far as, by the first part of its fourth plea, it calls into question the fact that that decision, which establishes that no aid was granted to Capricorn in the tender process, was adopted without the Commission initiating the formal investigation procedure, in breach of its procedural rights as an interested party.74If the Court were to annul the second contested decision for breach of the applicant’s procedural rights, the Commission would, in principle, have to initiate the formal investigation procedure with regard to the sale of the Nürburgring assets and ask the applicant, as an interested party, to submit its comments. Consequently, the annulment of the second contested decision may, in itself, have legal consequences for the applicant, as an interested party.75It must therefore be concluded, with regard to the second contested decision, that the applicant has standing to bring an action, as an interested party, and has and maintains a legal interest in bringing an action, arising from the safeguard of the procedural rights available to it, in that same capacity, under Article 108(2) TFEU.76It follows that the Commission’s application for a decision that there is no need to adjudicate must be rejected and that the present action is admissible, in so far as it relates to the second contested decision and seeks to safeguard the procedural rights available to the applicant under Article 108(2) TFEU. 2. Substance (a) Preliminary observations on the scope of the judicial review concerning a decision that there is no aid, taken after the preliminary examination stage 77It should be made clear at the outset that Article 108(3) TFEU and Article 4 of Regulation No 659/1999 provide for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether the aid notified is compatible with the internal market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it comes within the scope of Article 107(1) TFEU. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the internal market; on the other hand, it is also possible that the measure may raise such doubts (judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 43).78When, after the preliminary examination stage, the Commission adopts a decision whereby it finds that a State measure does not constitute aid that is incompatible with the internal market, it also implicitly refuses to initiate the formal investigation procedure. That principle applies both where the decision is taken on the ground that the Commission considers that the aid is compatible with the internal market, under Article 4(3) of Regulation No 659/1999, namely ‘a decision not to raise objections’, and where it is of the opinion that the measure does not come within the scope of Article 107(1) TFEU and thus does not constitute aid pursuant to Article 4(2) of Regulation No 659/1999 (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 52, and of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 68).79According to the case-law, where an applicant seeks the annulment of a decision declaring that the measure at issue is not State aid or of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby acting in breach of the applicant’s procedural rights. In order to have its application for annulment upheld, the applicant may invoke, for the purpose of safeguarding the procedural rights available to it in the context of the formal investigation procedure, any plea capable of showing that the assessment of the information and evidence that was available to the Commission during the phase of preliminary examination of the measure at issue should have raised doubts as to its classification of that measure as State aid or its compatibility with the internal market (judgments of 13 June 2013, Ryanair v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraph 60, and of 25 November 2014, Ryanair v Commission, T‑512/11, not published, EU:T:2014:989, paragraph 31).80Proof of the existence of doubts may be furnished by, inter alia, reference to a body of consistent evidence: the question whether or not a doubt exists requires, with regard to a decision finding the measure at issue not to constitute State aid, investigation of both the circumstances in which that decision was adopted, inter alia the duration of the preliminary examination, and its content, comparing the assessments upon which the Commission relied in that decision with the information available to it when it took a view on the classification of the measure in question as State aid (see, to that effect, judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 31).81Thus, the Commission is required to initiate the formal investigation procedure if, in the light of the information obtained or available to it during the preliminary examination stage, it still faces serious difficulties in assessing the measure under consideration. That obligation follows directly from Article 108(3) TFEU, as interpreted by the case-law, and is confirmed by Article 4 of Regulation No 659/1999, when the Commission finds, after a preliminary examination, that the measure at issue raises doubts as to its classification as aid or its compatibility with the internal market (see, to that effect, judgments of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraphs 30 to 33, and of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 328). In such a case, the Commission may not decline to initiate the formal investigation procedure in reliance upon other circumstances, such as third party interests, considerations of economy of procedure or any other ground of administrative or political convenience (judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraph 90).82At the litigation stage, review by the EU Courts must focus on whether, in the light of the arguments put forward and the evidence adduced by the applicant in the case concerned, the assessments on which the Commission relied in finding that there is no aid gave rise to such difficulties as to raise doubts and, accordingly, justify the initiation of the formal investigation procedure (see, to that effect, judgments of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 31, and of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 34). (b) Preliminary observations on the subject matter of the action 83The first part of the fourth plea alleges breach of the applicant’s procedural rights, in that the Commission failed to initiate the formal investigation procedure laid down in Article 108(2) TFEU in spite of the existence of serious difficulties in assessing the measure at issue.84In that part of the fourth plea, in order to show the existence of such serious difficulties, the applicant puts forward, inter alia, errors of law, errors of assessment and a failure to state reasons that, it claims, vitiate the second contested decision. Those errors and that failure are invoked, in addition, in its first, third and fifth pleas, relating respectively to the misinterpretation of the meaning of State aid, the failure to take account of the continuation of the sales process by the transfer to a sub-purchaser of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, and a failure to state reasons.85Therefore, the Court must examine, in the first place, the first part of the fourth plea, then, in the light of that part, alleging breach of the applicant’s procedural rights, turn to the first, third and fifth pleas, in order to assess whether the arguments put forward in support thereof make it possible to identify any serious difficulties in assessing the measure concerned in the presence of which the Commission should have initiated the formal investigation procedure laid down in Article 108(2) TFEU, as the Court is allowed to do by the case-law (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 56 and 58).86The Court will examine, in the second place, the second, third and fourth parts of the fourth plea, alleging other breaches of the applicant’s procedural rights, which may also have had an impact on the Commission’s finding, in the second contested decision, that there were no such serious difficulties in assessing the measure concerned as to justify the initiation of the formal investigation procedure laid down in Article 108(2) TFEU. The second part of the fourth plea alleges breach of the second subparagraph of Article 20(2) of Regulation No 659/1999, and the third and fourth parts of the fourth plea allege a failure by the Commission to carry out a diligent and impartial examination of the tender process. It is recalled that the second plea of the application initiating proceedings, alleging the existence of economic continuity, was directed only against the first contested decision, in respect of which the applicant was found to have no standing. (c) The first part of the fourth plea in law, alleging serious difficulties in assessing the sale of the Nürburgring assets 87The applicant invokes, in the first place, the duration of the preliminary examination stage and, in the second place, the content of the second contested decision. (1) The duration of the preliminary examination stage 88The applicant submits that the Commission postponed its decision several times, particularly between 23 June and 1 October 2014, when the final decision was eventually adopted. Moreover, the corrigendum to the final decision was adopted on 13 April 2015, more than a year after its complaint had been lodged with the Commission.89The Commission contends that it encountered no serious difficulties during the preliminary examination.90It should be noted that, where the disputed State measures were not notified by the Member State concerned, the Commission is not required to carry out a preliminary examination of those measures within a specified period. However, the Commission is bound to carry out a diligent examination of a complaint alleging the existence of aid that is incompatible with the internal market, as the issue of whether or not the duration of the preliminary examination stage is reasonable must be determined in relation to the particular circumstances of each case and, especially, its context, the various procedural stages to be followed by the Commission and the complexity of the case (see, to that effect, judgment of 27 September 2011, 3F v Commission, T‑30/03 RENV, EU:T:2011:534, paragraphs 57 and 58 and the case-law cited).91In the present case, the applicant’s complaint was brought before the Commission on 10 April 2014. That complaint related to the sale of the Nürburgring assets to Capricorn at a price lower than their market price and to the issue of whether there was economic continuity between the sellers and Capricorn that would have justified extending to the latter the decision on recovery of the aid to the sellers. In addition, three more complaints were lodged in relation to the sale of the Nürburgring assets. The final decision was taken on 1 October 2014, less than six months after receipt of the applicant’s complaint. That lapse of time does not go beyond what was required of an initial examination of the questions relating to the sale of the Nürburgring assets at a price lower than their market price and thus does not show the existence of such serious difficulties in assessing the measure concerned as to justify the initiation of the formal investigation procedure.92It follows that this claim must be rejected. (2) The content of the second contested decision 93The applicant submits, in essence, that the second contested decision in itself shows the existence of serious difficulties, claiming in this regard that the examination carried out by the Commission was flawed. In its opinion, the flaws concern, in particular, the examination as to whether the tender process had been open, transparent, non-discriminatory and unconditional, that of certain facts that are allegedly relevant in that regard, such as the sale of the Nürburgring assets to a sub-purchaser, that of whether the process led to the sale of those assets to the highest bidder as well as the assessment of the fact that Capricorn was allegedly unable to fulfil the requirement for payment security with regard to the purchase price.94In addition, the applicant submits that the errors of law made by the Commission in misapplying Article 107(1) TFEU and Article 14 of Regulation No 659/1999, together with the failure to state reasons, confirm the existence of serious difficulties in assessing the measure concerned that would have justified the initiation of the formal investigation procedure.95The Commission disputes that line of argument.96It should be noted, first of all, that the Commission found in recital 285 of the final decision, after consideration of the circumstances of the case, that ‘the sale of [the Nürburgring] assets d[id] not constitute State aid’.97In recital 281 of the final decision, the Commission stated that it found ‘[no] evidence of a breach of the principles of an open, transparent, non-discriminatory and [un]conditional tender process with regards to the sale of the [Nürburgring] assets or of any offer with a higher price bid with secured financing compared to the price bid made by Capricorn’.98In recitals 240, 261, 266, 271, 276 and 280 of the final decision, the Commission took the view, in particular, that Capricorn was the tenderer which submitted the highest offer including a proof of its financing. As to that proof, the Commission established that the letter from Deutsche Bank AG of 10 March 2014 in support of Capricorn’s offer (‘the letter from Deutsche Bank of 10 March 2014’) had been available to it as early as April 2014. There is therefore no reason to doubt the Commission’s assertion that it had carried out its own assessment of that letter and considered that it amounted to proof of financing, the binding nature of which was confirmed by the German authorities.99The argument as to the proof of financing in respect of the offer submitted by Capricorn and as to whether the tender process had led to the sale of the assets to the highest bidder is therefore unfounded.100The applicant also claims that the Commission failed to investigate thoroughly the tender process. In particular, it argues, the final decision fails to mention the continuation of the sales process.101In that regard, it is apparent from the case-law that if the examination carried out by the Commission during the preliminary examination stage is insufficient or incomplete, this constitutes evidence of such serious difficulties as to justify the initiation of the formal investigation procedure (see judgment of 11 October 2016, Søndagsavisen v Commission, T‑167/14, not published, EU:T:2016:603, paragraph 24 and the case-law cited).102The case-law has also found that, generally, the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81), bearing in mind that the information ‘available’ to the Commission includes that which seemed relevant for the assessment to be carried out and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).103The fact that the Commission, in the applicant’s opinion, did not reply to certain claims raised by the latter does not imply that it was unable to take a view on the measure in question on the basis of the information it possessed and that it therefore had to initiate the formal investigation procedure in order to complete its inquiry (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 130).104In the present case, the Commission cannot be criticised for not taking a view, in the final decision, on the continuation of the sales process by the transfer to a sub-purchaser of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, which, according to the applicant, took place on 28 October 2014, on the basis of a trust agreement dated 5 October 2014, and thus after that decision had been adopted.105Lastly, the applicant maintains that the errors of law made by the Commission in misapplying Article 107(1) TFEU and Article 14 of Regulation No 659/1999, together with the failure to state reasons, confirm the existence of serious difficulties. Examination of this argument overlaps with that of the first and fifth pleas, relating to those errors of law and that failure to state reasons, which will be carried out below.106Thus, without prejudice to the claims that will be examined in the context of the first and fifth pleas, the arguments put forward in support of the first part of the fourth plea do not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure. The first part of the fourth plea must therefore be rejected. (d) The first plea in law, alleging misinterpretation of the meaning of State aid, with regard to the granting of State aid to the buyer in the tender process 107By its first plea, which consists of three parts, the applicant submits that the Commission misinterpreted the meaning of State aid for the purposes of Article 107 TFEU by finding that no State aid had been granted to the buyer in the tender process. (1) The first part of the first plea in law, on the advantage conferred on the buyer in the tender process 108By the first part of the first plea, the applicant claims that an advantage was conferred on the buyer in the tender process. According to the applicant, that process was not transparent. In particular, the applicant argues that the sellers and KPMG did not give the tenderers clear information about the deadlines applicable, and that as a result, it was misled as to the deadline for submission of the final offer. The applicant claims that the buyer did not submit its final offer until 10 March 2014, the day before it was awarded the sale of the Nürburgring assets, and that, as a result, there was a de facto extension of the time limit until that date.109In addition, the applicant submits that the tender process was discriminatory. In particular, the applicant claims that negotiations took place between representatives of the sellers and of the buyer, but not with its own representatives, during autumn 2013, despite the fact that the buyer had no secured financing. The applicant alleges, inter alia, that the buyer was permitted to attend management meetings held by the sellers. Moreover, according to the applicant, the Commission is wrong to argue that none of the tenderers had provided any proof of financing for the full purchase price and that, therefore, the sellers did not breach the principle of equal treatment by relaxing the requirement for secured financing during the tender process, in so far as that change in the terms governing the tender was not communicated to all tenderers.110Furthermore, the applicant submits that the buyer produced no proof of secured financing, since, inter alia, it had provided solely a commitment in the form of the letter from Deutsche Bank of 10 March 2014, that is a non-binding letter of intent, and that letter was only a preliminary draft, which was not binding in itself but was subject to additional conditions and to a final decision by Deutsche Bank.111Lastly, the applicant claims that it offered the highest purchase price, together with secured financing.112113It is necessary to ascertain, in view of the claims put forward in the first part of the first plea, whether the examination carried out by the Commission with regard to the proper conduct of the tender process was of such a kind as to rule out such serious difficulties in assessing the sale of the Nürburgring assets as to justify the initiation of a formal investigation procedure.114According to consistent case-law, where an undertaking that has benefited from aid that is incompatible with the internal market is bought at the market price, that is to say, at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, in particular after having enjoyed State aid, the aid element is assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage in relation to other market operators (see, to that effect, judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 80 and the case-law cited).115If, on the contrary, the assets of State aid beneficiaries are sold at a price lower than the market price, undue advantage could be conferred on the buyer (see, to that effect, judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 161).116For the purposes of checking the market price, the form of the transfer of a company, in particular, for example, public tendering, deemed to ensure that a sale takes place under market conditions, may be taken into consideration. It follows that, where an undertaking is sold by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer, provided that it is established, first, that that offer is binding and credible and, secondly, that the consideration of economic factors other than the price is not justified (see, to that effect, judgments of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraphs 93 and 94, and of 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 32).117According to the case-law, the question whether a tender procedure has been open and transparent is determined on the basis of a body of evidence specific to the circumstances of each case (see, to that effect, judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 95).118It is in the light of the case-law referred to in paragraphs 114 to 117 above that it is appropriate to examine, in the present case, the merits of the various claims raised in the context of the first part of the first plea, while bearing in mind the fact that, in that context, the Court cannot rule directly on the very lawfulness of the tender process. (i) The claim that the tender process was not transparent 119Inasmuch as the applicant alleges that the tender process was not transparent, it should be recalled (see seventh indent of paragraph 9 above) that the deadline for the submission of confirmatory offers was set successively to 11 December 2013, as is apparent from the letter from KPMG of 17 October 2013, and then to 17 February 2014, as is apparent from the letter from KPMG of 17 December 2013. That last letter stated that offers submitted after expiry of the deadline would also be considered. However, it indicated that the sellers could make the selection decision shortly after expiry of the deadline for the submission of offers.120As the Commission rightly contends, it was known to all tenderers that it was possible to submit an offer after 17 February 2014. Similarly, the fact that the buyer was able to submit its final offer on 10 March 2014, after expiry of the deadline, and be designated the successful tenderer as from 11 March 2014 is wholly consistent with the provisions of the letter from KPMG of 17 December 2013.121It follows that that claim does not make it possible to establish that the Commission ought to have had doubts as to the possible existence of an advantage conferred on the buyer in the tender process because of the non-transparent nature of that process in the light of the deadline set for the submission of a confirmatory offer. (ii) The claim that the tender process was discriminatory 122In the context of the present claim, the applicant submits that the tender process was discriminatory. In particular, the applicant claims that the buyer produced no proof of secured financing, since the letter from Deutsche Bank of 10 March 2014, in support of its offer approved on 11 March 2014, was non-binding.123The letter from KPMG of 17 October 2013 to interested investors stated that any sources of financing relying on third parties had to be supported by binding financing commitments (see ninth indent of paragraph 9 above). It is therefore necessary to ascertain whether the examination carried out by the Commission, reflecting the German authorities’ analysis, was of such a kind as to rule out any doubt as to the binding nature of the letter from Deutsche Bank of 10 March 2014.124First of all, the letter from Deutsche Bank of 10 March 2014 states that the latter was willing to underwrite a loan of EUR 45 million to the buyer. The conditions governing that financing are described in detail, which, as the Commission rightly submits, suggests careful analysis by Deutsche Bank and an exchange of information between the latter and the buyer.125Second, the letter from Deutsche Bank of 10 March 2014 refers several times to Deutsche Bank’s commitment in respect of Capricorn under that letter. Deutsche Bank thus considered itself bound by that letter.126In that regard, as the Commission rightly points out, a comparison of the letter from Deutsche Bank of 10 March 2014 with two non-binding preparatory letters from Deutsche Bank of 17 and 25 February 2014 confirms the binding nature of the letter from Deutsche Bank of 10 March 2014. Thus, the letter of 17 February 2014 states that it does not constitute a commitment on the part of Deutsche Bank, unlike the letter from Deutsche Bank of 10 March 2014, which refers to Deutsche Bank’s commitment in respect of Capricorn under that letter.127Lastly, the letter from Deutsche Bank of 10 March 2014 specifies that Deutsche Bank’s commitment is subject to three conditions. However, those conditions (execution of the transaction, no material change to the assets purchased, no illegality or unlawfulness) did not allow Deutsche Bank to withdraw its commitment unless the acquisition failed to be carried out in accordance with the conditions stipulated.128In the light of the foregoing, it does not appear that the Commission ought to have had doubts as to the binding nature of the letter from Deutsche Bank of 10 March 2014.129On the contrary, and as rightly noted by the Commission in recital 272 of the final decision, the applicant never provided proof of financing in respect of its offer.130On 30 September 2013, the applicant submitted an indicative offer for all the Nürburgring assets, amounting to EUR 150 million. That offer was not supported by proof of its financing capacity, a fact which KPMG pointed out to the applicant in its letters of 11 and 17 December 2013 and in a letter of 18 December 2013. The applicant also received the letter from KPMG of 17 October 2013 stating that any sources of financing relying on third parties had to be supported by binding financing commitment letters.131On 17 February 2014, the applicant submitted a final offer amounting to EUR 110 million for all assets. It claimed at that time that it had obtained a binding financing commitment of EUR 30 million from DRC Capital LLP. However, no document from DRC Capital was provided with the offer, a fact which KPMG pointed out to the applicant in an email of 18 February 2014.132On 21 February 2014, the applicant stated that it should have all binding financing commitments within a period of two to five weeks. On 11 March 2014, it claims to have provided an updated version of the final offer, amounting to EUR 150 million, and confirmed that it would submit all binding financing commitments by 31 March 2014. Finally, it asserts that it received a financing commitment from Jupiter Financial on 26 March 2014 but acknowledges that it never sent this to KPMG. In an email of 9 April 2014, KPMG pointed out to the applicant that it had still not received written confirmation from third-party financing sources to support its offer.133As is apparent from the foregoing, the buyer, whose offer was successful, had, first, two preparatory letters from Deutsche Bank of 17 and 25 February 2014, and then the letter from Deutsche Bank of 10 March 2014, in respect of which it does not appear that the Commission ought to have had doubts as to its binding nature, whereas the applicant, whose offer was not successful, at no time provided any proof of financing. Moreover, the requirement for a binding financing commitment was brought to the applicant’s attention on several occasions.134In view of the foregoing, it cannot be found that the Commission, in the light of the matters of fact and of law put forward by the applicant, ought to have had doubts as to the possible existence of an advantage conferred on the buyer in the tender process due to the alleged discriminatory nature of that process in the light of the requirement for a binding financing commitment. (iii) The claim relating to the amount and financing of the offers made by Capricorn and by the applicant 135In the context of the present claim, the applicant submits that it offered the highest purchase price as well as secured financing, whereas Capricorn’s offer, which was ultimately successful, was lower than its own and lacked secured financing.136Given that the final purchase price offered by the applicant amounted to EUR 110 million, whereas Capricorn’s offer amounted to EUR 77 million, the applicant is right to assert that its purchase price offer was higher than that of Capricorn.137However, in accordance with the case-law referred to in paragraph 116 above, it cannot be presumed that the market price corresponds to the highest offer submitted in an open, transparent and unconditional tender procedure unless it has been established that that offer is binding and credible.138In the present case, as set out in the letters addressed to them on 19 July and 17 October 2013 by KPMG, interested investors were to be selected, inter alia, on the basis of the requirement for transaction security (see ninth indent of paragraph 9 above).139However, the applicant is wrong to claim that it offered secured financing since at no time did it produce any proof of financing. It is apparent from recital 272 of the final decision that the German authorities could, in the absence of proof of its financial capacity and solvency, cast doubt on its capacity to raise sufficient funds to pay the purchase price that it was offering and, accordingly, on the credibility of its offer and its compliance with the requirement for payment security with regard to the sale price.140By contrast, Capricorn had, first, the two preparatory letters from Deutsche Bank of 17 and 25 February 2014, and then the letter from Deutsche Bank of 10 March 2014, the binding nature of which, it has already been noted, the Commission did not have to doubt (see paragraphs 128 and 133 above).141In addition, as stated in recital 273 of the final decision, only Bidder 2 and Capricorn, whose offers were both lower than that of the applicant but included financial pledges, participated in the final stage of the negotiations carried out in the tender process. The sellers therefore compared Capricorn’s offer with that of Bidder 2. This is confirmed by the fact that, according to the sellers’ lawyers, on 26 February 2014 the confirmatory offer of Bidder 2 was the best offer, albeit of a lower amount than that of Capricorn, and that it is precisely because of the latter’s higher bid that the sellers also attempted to finalise the sale of the Nürburgring assets with Capricorn. However, it is apparent from recital 273 of the final decision that both the offer and the financial pledge submitted in fine by Capricorn were higher than the offer and the financial pledge submitted by Bidder 2.142It has therefore not been established that the Commission ought to have doubted the fact that Capricorn was the tenderer which submitted the highest binding and credible offer, based not only on the price offered but also on the proof furnished in terms of transaction security. In other words, it has not been established that it ought to have had doubts as to whether ‘the assets in question [had] been sold to the bidder who submitted the highest bid including a proof of its financing’, as observed in recital 276 of the final decision, and as to the fact that there was ‘[no] offer with a higher price bid with secured financing compared to the price bid made by Capricorn’, as observed in recital 281 of that decision.143This claim must therefore also be rejected.144In accordance with the case-law referred to in paragraphs 114 to 117 above, the examination carried out by the Commission was therefore of such a kind as to rule out any doubt as to whether there had been any undue advantage in favour of the buyer in the tender process and, therefore, as to whether any State aid had been granted to the latter. Accordingly, it cannot be held that the first part of the first plea points to serious difficulties in assessing the sale of the Nürburgring assets that would have required the Commission to initiate the formal investigation procedure laid down in Article 108(2) TFEU.145Consequently the first part of the first plea in law must be rejected. (2) The second part of the first plea in law, alleging an advantage conferred on the buyer in the lease of the Nürburgring assets 146By the second part of the first plea, the applicant submits that an advantage was also conferred on the buyer in the lease of the Nürburgring assets. It follows from recital 56 of the final decision that that lease was concluded between a company independent of the sellers, operating in actual fact as trustee of those assets, and an operating company created by Capricorn for a period starting on 1 January 2015 with a view to structuring a temporary situation corresponding to the possible realisation of the condition to which the sale of the Nürburgring assets to Capricorn was subject, namely the adoption by the Commission of a decision ruling out any risk that the buyer of those assets might be required to reimburse the aid to the sellers. The annual lease did not exceed EUR 5 million, whereas, according to the applicant, it ought to have been at least EUR 7.7 million.147The Commission disputes that line of argument and contends, inter alia, that the lease was no more than the advance payment of portions of the sales price of the Nürburgring assets, which was itself consistent with market conditions.148For the reasons set out in paragraphs 119 to 133 above, it cannot be considered that the Commission ought to have had doubts as to whether the tender process was transparent and non-discriminatory.149For those same reasons, the Commission was justified in having no doubt as to whether an advantage had been conferred on the buyer in the tender process, including in relation to the lease of the Nürburgring assets that had been negotiated in case the conditions set for the sale to be perfected were not satisfied.150The second part of the first plea in law must therefore be rejected. (3) The third part of the first plea in law, alleging use of State resources in connection with the sale of the Nürburgring assets to the buyer 151By the third part of the first plea, the applicant submits that the Commission failed to examine whether State resources were involved in connection with the sale of the Nürburgring assets to Capricorn. According to the applicant, the Commission should have found that that was the case.152153It should be recalled that the Commission may decide to take no further action on a complaint when it is able to rule out at the outset classifying the measures in question as State aid after finding that one of the conditions that are fundamental to the application of Article 107(1) TFEU is not satisfied (see, to that effect, judgment of 5 April 2006, Deutsche Bahn v Commission, T‑351/02, EU:T:2006:104, paragraph 104).154In the present case, by examining, in recitals 266 to 281 of the final decision, whether the tender process had been open, transparent, non-discriminatory and unconditional and whether Capricorn was the tenderer which submitted the highest offer with proof of its financing, the Commission intended, in essence, to check that the Nürburgring assets had been sold at their market price, in accordance with the case-law referred to in paragraph 116 above.155If the Nürburgring assets were sold at a price lower than the market price, as recalled in paragraph 115 above, undue advantage could have been conferred on the buyer (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 161). The Commission’s examination therefore concerned the issue of whether, in the present case, such an advantage had been conferred on Capricorn in connection with the tender process.156The Commission concluded that, in the absence of such an advantage, no State aid had been granted to Capricorn in connection with the sale of the Nürburgring assets. In other words, the Commission found that one of the conditions that are fundamental to the application of Article 107(1) TFEU, relating to the existence of an advantage, was not satisfied.157Accordingly, it cannot validly be argued that the Commission failed to examine also whether the condition relating to an intervention by the State or through State resources was satisfied.158Consequently, it is appropriate to hold that the examination of the third part of the first plea and, accordingly, of the first plea in its entirety, has revealed no evidence that doubts existed as to the classification as State aid of the sale of the Nürburgring assets that would have required the initiation of the formal investigation procedure set out in Article 108(2) TFEU.159The first plea in law, read in the light of the first part of the fourth plea in law, must therefore be rejected. (e) The third plea in law, alleging a failure to take account of the continuation of the sales process by the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets 160By its third plea, the applicant maintains that the Commission was wrong to state, in the final decision, that the sales process relating to the Nürburgring assets was concluded on 11 March 2014 with the award to Capricorn.161The applicant claims that the sellers continued the sales process from July 2014, after Capricorn had made clear that it was unable to pay the second instalment of the purchase price. According to the applicant, informal negotiations took place from September 2014, during which the sellers themselves proposed the sale of the Nürburgring assets, leading to the transfer to a sub-purchaser, on 28 October 2014, of Capricorn’s shares in the acquisition vehicle for those assets. The continuation of the sales process was, it is claimed, not conducted in an open, transparent, non-discriminatory and unconditional manner either.162In the applicant’s view, the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets constituted the conclusion of the sales process relating to those assets and was carried out in the sellers’ interests and not in Capricorn’s interests. Capricorn gained no advantage from that transfer, the applicant argues, beyond that relating to the extinction of its contractual obligations. The applicant claims that the fact that the price for the transfer of those shares was identical to that of the sale of the Nürburgring assets to Capricorn did not justify the failure to launch, in the present case, a new tender process.163164For the reasons already set out in paragraphs 103 and 104 above, the Commission cannot be criticised for not taking a view, in the final decision, on the continuation of the sales process by the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, since that transfer took place, as the applicant itself recognises, after that decision had been adopted.165In addition, while it is apparent from a news article of 30 September 2014 that Deutsche Bank withdrew its financing to Capricorn and that the administrators searched for new purchasers for the Nürburgring assets, the applicant failed to establish that that information had been available to the Commission at the time of adopting the final decision.166In any event, in accordance with the case-law cited in paragraphs 114 to 117 above, and as the Commission contended in its observations of 13 December 2017 in response to the Court’s written questions, its examination was designed to ascertain whether the tender process had been carried out in an open, transparent, non-discriminatory and unconditional manner in order to determine whether or not the Nürburgring assets had been sold at their market price. Otherwise, those assets might have been sold at a price lower than the market price, and undue advantage might have been conferred on the buyer.167Consequently, it is appropriate to take the view that the aid, which, according to the applicant (see paragraph 10 above), should have been established by the Commission in the second contested decision and which would have corresponded to the difference between the price paid by Capricorn to purchase the Nürburgring assets and the market price of those assets, would have been granted to Capricorn on 11 March 2014, the date on which the Nürburgring assets were awarded to Capricorn and the sales agreement setting the purchase price for the Nürburgring assets owed by Capricorn was signed. It follows that the facts subsequent to that date, such as the difficulties faced by Capricorn for the execution of the sales agreement and the transfer to a sub-purchaser, by Capricorn, of its shares in the acquisition vehicle for the Nürburgring assets, were not relevant in assessing whether aid might have been granted to Capricorn in the tender process.168Lastly, as the Commission rightly contended in its observations of 13 December 2017 in response to the Court’s written questions, had the applicant wished that the Commission also investigated whether new aid stemmed from the alleged continuation of the sales process, subsequent to the adoption of the second contested decision, it should have lodged a new complaint in that respect.169It follows that the arguments put forward in support of the third plea, alleging a failure to take account of the continuation of the sales process after the adoption of the second contested decision, do not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure.170The third plea in law, read in the light of the first part of the fourth plea in law, must therefore be rejected. (f) The fifth plea in law, alleging a failure to state reasons 171By its fifth plea, the applicant argues that the Commission failed to respond to its claims regarding (i) the examination of the requirement for transaction security, (ii) the continuation of the sales process and the sale of the Nürburgring assets to a sub-purchaser, (iii) the use of State resources and the involvement of the State in the conclusion of the sale and of the lease relating to the Nürburgring assets, (iv) the additional granting to the buyer of State aid in the amount of EUR 6 million, corresponding to the partial payment of the purchase price out of the 2014 profits of the Nürburgring manager (see paragraph 6 above), (v) the role of the law firm representing the buyer and the sellers, (vi) the discriminatory nature of the tender process as regards the agreements relating to the operation of the Nürburgring, (vii) the lease between the buyer and the sellers and the issue of whether it amounted to State aid, and (viii) the verification of the purchase price of the Nürburgring assets on the basis of expert opinions.172The applicant also submits that the Commission failed to provide clear and unequivocal reasons concerning, on the one hand, the arrangement, referred to in recital 56 of the final decision, put in place after the conclusion of the sale of the Nürburgring assets in order to ensure the temporary operation of those assets pending a non-challengeable decision by the Commission clarifying Capricorn’s legal position with regard to the aid to the sellers and, on the other hand, the requirement for transaction security.173Lastly, the applicant claims that the Commission failed to provide more detailed reasoning in relation to alleged changes in its decision-making practice, in the context of the examination of the requirement for transaction security and the existing links between the administrators and the State.174175The statement of reasons required by the second paragraph of Article 296 TFEU must enable the parties concerned to ascertain the reasons for the measure and must enable the EU judicature to carry out its review (see, as to State aid, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraphs 88 and 89; of 22 April 2008, Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraph 56; and of 30 April 2009, Commission v Italy and Wam, C‑494/06 P, EU:C:2009:272, paragraphs 48 and 49). The Commission must provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 64, and of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 89).176In the present case, recitals 266 and 281 of the final decision, under the heading ‘Complaints on the sale of [the Nürburgring] assets’, include a detailed account of the reasons that led the Commission to decide that the sale of the Nürburgring assets to Capricorn did not constitute State aid. That account provides an adequate explanation to enable the parties concerned to ascertain the reasons for the measure and to enable the EU judicature to carry out its review and for the applicant to understand the reasons for which the facts and points of law put forward in its complaint have failed to demonstrate the existence of State aid.177In particular, and contrary to the applicant’s assertions, the Commission did not fail to reply to its claims concerning the requirement for transaction security, which were examined in recitals 272 and 273 of the final decision relating to proof of financing of the offers made by the applicant and by Capricorn, the negotiation of agreements relating to the operation of the Nürburgring by Capricorn, which is mentioned in recital 275(e) of the final decision, or the role of the law firm representing the buyer and the sellers, mentioned in recital 275(j) of the final decision.178Accordingly, even if the Commission had failed to reply to other claims raised by the applicant in its complaint, such a failure could not amount to a breach of the obligation to state reasons, since the latter does not require the Commission to set out any elements other than the facts and the legal considerations which it deems of fundamental importance in the context of the decision. The necessary correlation between the grounds relied on by the complainant and the statement of reasons for the Commission’s decision cannot mean that the Commission is obliged to reject each of the arguments put forward in support of those grounds (see judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96 and the case-law cited, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180 and the case-law cited).179This applies all the more with regard to a decision adopted after the preliminary stage of the procedure for reviewing aid which, that decision being taken in a short space of time, need contain only the reasons for which the Commission considers that it is not faced with such serious difficulties in assessing the measure concerned as to justify the initiation of the formal investigation phase (judgments of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 48, and of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 65).180It follows that the fifth plea, alleging a failure to state reasons, does not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure.181In the light of the foregoing considerations the fifth plea in law must be rejected.182It follows that neither the first part of the fourth plea in law nor the first, third and fifth pleas in law make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure. (g) The second part of the fourth plea in law, alleging infringement of the second subparagraph of Article 20(2) of Regulation No 659/1999 183By the second part of the fourth plea, the applicant maintains that the Commission infringed the second subparagraph of Article 20(2) of Regulation No 659/1999, in that it failed to inform the applicant of its intention to reject its complaint and also failed to invite it to submit further comments.184185As amended by Council Regulation (EU) No 734/2013 of 22 July 2013 amending Regulation No 659/1999 (OJ 2013 L 204, p. 15), the second subparagraph of Article 20(2) of Regulation No 659/1999 provides that ‘where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed one month’. In addition, ‘if the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn’.186As amended by Regulation No 734/2013, the third subparagraph of Article 20(2) of Regulation No 659/1999 provides that ‘the Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant’.187Article 20(2) of Regulation No 659/1999 must be read in the light of the rule in paragraph 48 of the Code of Best Practice for the conduct of State aid control procedures (OJ 2009 C 136, p. 13), which provides that, within 12 months, the Commission will, in principle, endeavour to adopt a decision for priority cases pursuant to Article 4 of Regulation No 659/1999, with a copy addressed to the complainant, or send an initial administrative letter to the complainant setting out its preliminary views on non-priority cases.188According to the second and third subparagraphs of Article 20(2) of Regulation No 659/1999, which governs the rights of the interested party, the Commission, after obtaining from the interested party information concerning alleged unlawful aid, will either consider that there are insufficient grounds for taking a view on the case and inform the interested party thereof or take a decision on a case concerning the subject matter of the information supplied (judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 55).189In the present case, the Commission took a decision by examining the information supplied by the applicant and stating its view on that information.190It is therefore appropriate to find that the Commission did not infringe the second subparagraph of Article 20(2) of Regulation No 659/1999.191The second part of the fourth plea in law must therefore be rejected.192The Court will now turn to the fourth part of the fourth plea in law, and then to the third part of the fourth plea in law. (h) The fourth part of the fourth plea in law, alleging a failure to carry out a diligent examination of the applicant’s complaint 193By the fourth part of the fourth plea, the applicant submits that the Commission failed to carry out a diligent examination of the tender process. In particular, it claims that the Commission failed to ask the sellers or the German authorities for further information, but relied solely on information provided by the administrators to the German authorities, the reliability of which it ought to have checked. Furthermore, the applicant submits that the Commission failed to act on the applicant’s request of 6 July 2014 inviting it to put further questions to the Federal Republic of Germany and to the third parties concerned.194195According to the case-law of the Court of Justice, the Commission is required to conduct a diligent and impartial examination of the complaints it receives concerning State aid, which might oblige it to extend its investigation of a complaint beyond a mere examination of the facts and points of law brought to its notice by the complainant and to examine matters not expressly raised by the complainant (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62, and of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90).196In the context of State aid control, even though a Member State must, in accordance with the duty of sincere cooperation laid down in Article 4(3) TEU, cooperate with the Commission by providing it with the information that will allow the Commission to take a decision on whether the measure at issue involves State aid, the fact remains that the Commission is under an obligation, in the interest of sound administration of the fundamental rules of the Treaty relating to State aid, to carry out a diligent and impartial examination and that that obligation requires, in particular, a careful examination of the information which the Member State provides to the Commission (see judgment of 22 October 2008, TV2/Danmark and Others v Commission, T‑309/04, T‑317/04, T‑329/04 and T‑336/04, EU:T:2008:457, paragraph 183 and the case-law cited).197Thus, the Commission, although it enjoys a discretion, cannot, however, in view of its duty to undertake a diligent and impartial investigation, omit to require the disclosure of information which appears likely to confirm or to refute other information which is relevant for the examination of the measure at issue, but the reliability of which cannot be considered to be sufficiently established (judgment of 26 June 2008, SIC v Commission, T‑442/03, EU:T:2008:228, paragraph 225).198Lastly, it is in the light of both the information notified by the State concerned and that provided by any complainants that the Commission must form its assessment in the context of the preliminary examination instituted by Article 108(3) TFEU (judgment of 3 May 2001, Portugal v Commission, C‑204/97, EU:C:2001:233, paragraph 35).199By a first claim, the applicant alleges a failure by the Commission to carry out a diligent examination of its complaint in that the Commission failed to act on its request of 6 July 2014 inviting it to put further questions to the Federal Republic of Germany and to the third parties concerned.200In that regard, it must be borne in mind that, as has been set out in paragraph 178 above, the Commission is not obliged to adopt a position on all the arguments relied on before it by the parties concerned. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision (see judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96 and the case-law cited, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180 and the case-law cited).201Therefore, since the applicant has failed to establish that the Commission omitted to search for or verify the information necessary for the adoption of the second contested decision, that claim must be rejected.202By a second claim, the applicant alleges a failure by the Commission to carry out a diligent examination of its complaint in that the Commission failed to ask the sellers or the German authorities for further information, but relied solely on information provided by the administrators to the German authorities.203In that regard, it is apparent from the documents in the case file that, after the applicant’s complaint had been lodged, the Commission requested information from the German authorities on 23 May and 4 and 7 July 2014, which was provided on 23 April, 26 May and 10 July 2014. The Commission services met with representatives of the German authorities, the administrators and KPMG on 22 July and 5 September 2014.204In recitals 272 to 276 of the final decision, the Commission examined and compared the comments of the administrators sent by the German authorities, set out in recitals 121 to 135 of the final decision, with those of the applicant, set out in recitals 115 to 120 of the final decision. The Commission provided its own findings and comments with respect to the relevant aspects, in particular proof of the applicant’s financing capacity for the acquisition of the Nürburgring assets, on the one hand, and that of Capricorn, on the other hand.205The Commission thus, in the present case, did indeed examine and assess the information provided by both the applicant and the German authorities. In that respect, there is nothing to justify the conclusion that the Commission failed to carry out an adequate investigation or that it failed to carry out a diligent examination of the complaint.206It is therefore appropriate to reject that second claim and, accordingly, to reject the fourth part of the fourth plea in law as unfounded. (i) The third part of the fourth plea in law, alleging a failure to carry out an impartial examination of the applicant’s complaint 207By the third part of the fourth plea, the applicant submits that it became impossible for the Commission to carry out an impartial examination of its complaint because of a statement by the spokesperson of the member of the Commission responsible for competition matters reported in the press on 15 May 2014 (‘the statement at issue’). According to that statement, as reported in the news article produced by the applicant, on the basis of the information allegedly available to the Commission, the German authorities followed guidance from the member of the Commission responsible for competition matters in a letter at the beginning of the sales process for the Nürburgring assets and that the latter were sold to the highest bidder in an open, transparent and non-discriminatory selection procedure, that is to say, after a lawful tender process and at the market price.208209It is settled case-law on antitrust violations and abuses of dominant position that an irregularity, such as leaks to the press not restricted to expressing the personal views of the member of the Commission responsible for competition matters regarding the compatibility with EU law of the measures under examination, may lead to annulment of the decision concerning those measures if it is established that the content of that decision would have differed if that irregularity had not occurred (judgments of 16 December 1975, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 91, and of 6 July 2000, Volkswagen v Commission, T‑62/98, EU:T:2000:180, paragraph 283).210Under that same case-law, it is for the applicant to produce at least some indicia to support such a conclusion (judgment of 15 March 2006, BASF v Commission, T‑15/02, EU:T:2006:74, paragraph 606).211That case-law, which relates to the application of Articles 101 and 102 TFEU, can be applied, by analogy, to proceedings concerning State aid relating to the application of Articles 107 and 108 TFEU, and, in particular, in the present case.212In accordance with that case-law, it is appropriate to note that the applicant had not adduced any evidence or any indicia that, had the statement at issue not been made, the content of the final decision would have differed. The Court has found that the examination of the first, third and fifth pleas and of the first part of the fourth plea do not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure. The Court has also found that the fourth part of the fourth plea did not make it possible to establish that the Commission failed to carry out an adequate investigation or that it failed to carry out a diligent examination of the complaint.213Without there being any need to rule on the nature or the scope of the statement at issue, it is thus appropriate to reject the third part of the fourth plea in law and, therefore, to reject the fourth plea in law in its entirety.214Since the pleas seeking annulment of the second contested decision for breach of the procedural rights available to the applicant under Article 108(2) TFEU have been rejected, the application for annulment of that decision must be dismissed.215The applicant has relied on various oral testimonies. Since those testimonies do not appear necessary to the outcome of the dispute and, in particular, to ascertain whether the facts and indicia put forward by the applicant should have led the Commission to have doubts, they must be rejected.216In the light of all the foregoing, it must be concluded that the action must be dismissed as inadmissible in part and unfounded as to the remainder. IV. Costs 217Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.On those grounds,THE GENERAL COURT (First Chamber, Extended Composition)hereby: 1. Orders that the application for a decision that there is no need to adjudicate on the action be considered together with the substance of the case; 2. Orders that the application for a decision that there is no need to adjudicate on the action be dismissed; 3. Dismisses the action; 4. Orders NeXovation, Inc. to bear its own costs and to pay those incurred by the European Commission. PelikánováValančiusNihoulSvenningsenÖbergDelivered in open court in Luxembourg on 19 June 2019.E. CoulonRegistrarS. GervasoniPresidentTable of contentsI. Background to the disputeA. Administrative procedure and sale of the Nürburgring assetsB. The contested decisionsII. Procedure and forms of order soughtIII. LawA. Admissibility of the application for annulment of the first contested decisionB. The application for annulment of the second contested decision1. Admissibility and the application for a decision that there is no need to adjudicate2. Substance(a) Preliminary observations on the scope of the judicial review concerning a decision that there is no aid, taken after the preliminary examination stage(b) Preliminary observations on the subject matter of the action(c) The first part of the fourth plea in law, alleging serious difficulties in assessing the sale of the Nürburgring assets(1) The duration of the preliminary examination stage(2) The content of the second contested decision(d) The first plea in law, alleging misinterpretation of the meaning of State aid, with regard to the granting of State aid to the buyer in the tender process(1) The first part of the first plea in law, on the advantage conferred on the buyer in the tender process(i) The claim that the tender process was not transparent(ii) The claim that the tender process was discriminatory(iii) The claim relating to the amount and financing of the offers made by Capricorn and by the applicant(2) The second part of the first plea in law, alleging an advantage conferred on the buyer in the lease of the Nürburgring assets(3) The third part of the first plea in law, alleging use of State resources in connection with the sale of the Nürburgring assets to the buyer(e) The third plea in law, alleging a failure to take account of the continuation of the sales process by the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets(f) The fifth plea in law, alleging a failure to state reasons(g) The second part of the fourth plea in law, alleging infringement of the second subparagraph of Article 20(2) of Regulation No 659/1999(h) The fourth part of the fourth plea in law, alleging a failure to carry out a diligent examination of the applicant’s complaint(i) The third part of the fourth plea in law, alleging a failure to carry out an impartial examination of the applicant’s complaintIV. Costs( *1 ) Language of the case: English. | 68cea-6794d52-4c57 | EN |
The German vignette for the use by passenger vehicles of federal roads is contrary to EU law | 18 June 2019 ( *1 ) ( i )(Failure of a Member State to fulfil obligations — Articles 18, 34, 56 and 92 TFEU — Legislation of a Member State prescribing an infrastructure use charge for passenger vehicles — Situation in which owners of vehicles registered in that Member State qualify for relief from motor vehicle tax in an amount corresponding to that charge)In Case C‑591/17,ACTION for failure to fulfil obligations under Article 259 TFEU, brought on 12 October 2017, Republic of Austria, represented by G. Hesse, J. Schmoll and C. Drexel, acting as Agents,applicant,supported by: Kingdom of the Netherlands, represented by J. Langer, J.M. Hoogveld and M.K. Bulterman, acting as Agents,intervener,v Federal Republic of Germany, represented by T. Henze and S. Eisenberg, acting as Agents, and by C. Hillgruber, Rechtsanwalt,defendant, Kingdom of Denmark, represented by J. Nymann-Lindegren and M. Wolff, acting as Agents,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta (Rapporteur), Vice-President, J.-C. Bonichot, A. Arabadjiev, E. Regan and C. Lycourgos, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, C.G. Fernlund, P.G. Xuereb, N. Piçarra and L.S. Rossi, Judges,Advocate General: N. Wahl,Registrar: K. Malacek, Administrator,having regard to the written procedure and further to the hearing on 11 December 2018,after hearing the Opinion of the Advocate General at the sitting on 6 February 2019,gives the following Judgment 1By its application, the Republic of Austria asks the Court to declare that the Federal Republic of Germany has infringed Articles 18, 34, 56 and 92 TFEU by introducing the infrastructure use charge for passenger vehicles by means of the Infrastrukturabgabegesetz (the law on infrastructure charges) of 8 June 2015 (BGBl. I, p. 904), in the version resulting from Article 1 of the Law of 18 May 2017 (BGBl. I, p. 1218) (‘the InfrAG’), and by providing relief from motor vehicle tax corresponding, at the least, to the amount of that charge for the owners of vehicles registered in Germany, introduced in the Kraftfahrzeugsteuergesetz (the law on motor vehicle tax) of 26 September 2002 (BGBl. I, p. 3818; ‘the KraftStG’) by means of the Zweites Verkehrsteueränderungsgesetz (the second law amending the road traffic tax) of 8 June 2015 (BGBl. I, p. 901), and latterly amended by the Gesetz zur Änderung des Zweiten Verkehrsteueränderungsgesetzes (the law amending the second law amending the road traffic tax) of 6 June 2017 (BGBl. I, p. 1493) (together, ‘the national measures at issue’). Legal context EU law 2The first subparagraph of Article 1 of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42), as amended by Directive 2011/76/EC of the European Parliament and of the Council of 27 September 2011 (OJ 2011 L 269, p. 1) (‘the Eurovignette Directive’), provides that that directive applies to vehicle taxes, tolls and user charges imposed on vehicles as defined in Article 2 thereof. Article 2(d) of that directive defines a ‘vehicle’ for the purposes of the Eurovignette Directive as ‘a motor vehicle or articulated vehicle combination intended or used for the carriage by road of goods and having a maximum permissible laden weight of over 3.5 tonnes’.3Article 7 of the Eurovignette Directive provides:‘1. Without prejudice to Article 9 paragraph 1a, Member States may maintain or introduce tolls and/or user charges on the trans-European road network or on certain sections of that network, and on any other additional sections of their network of motorways which are not part of the trans-European road network under the conditions laid down in paragraphs 2, 3, 4 and 5 of this Article and in Articles 7a to 7k. This shall be without prejudice to the right of Member States, in compliance with the Treaty on the Functioning of the European Union, to apply tolls and/or user charges on other roads, provided that the imposition of tolls and/or user charges on such other roads does not discriminate against international traffic and does not result in the distortion of competition between operators.…3. Tolls and user charges shall not discriminate, directly or indirectly, on the grounds of nationality of the haulier, the Member State or the third country of establishment of the haulier or of registration of the vehicle, or the origin or destination of the transport operation.…’4Article 7k of that directive provides:‘Without prejudice to Articles 107 and 108 of the Treaty on the Functioning of the European Union, this Directive does not affect the freedom of Member States which introduce a system of tolls and/or user charges for infrastructure to provide appropriate compensation for those charges.’ German law The InfrAG 5Paragraph 1 of the InfrAG prescribes the payment of a charge (‘the infrastructure use charge’) for the use by passenger vehicles of federal roads, within the meaning of Paragraph 1 of the Bundesfernstraßengesetz (the law on federal roads), in the version published on 28 June 2007 (BGBl. I, p. 1206), including motorways.6In accordance with Paragraphs 3 and 7 of the InfrAG, for vehicles registered in Germany, the infrastructure use charge must be paid, in the form of an annual vignette, by the vehicle owner. Under Paragraph 5(1) of the InfrAG, the amount of the charge is determined by a decision of the responsible authority. The vignette is deemed to have been acquired at the time of registration.7For vehicles registered abroad, the obligation to pay the charge, which is payable only on use of the motorways, falls on either the owner or the driver of the vehicle during that use, and arises, in accordance with Paragraph 5(4) of the InfrAG, on the first use of a road that is subject to the charge after the crossing of a border. The charge must be paid by means of purchasing a vignette. In that respect, there is a choice between a 10-day vignette, a 2-month vignette or an annual vignette.8The amount of the charge to be paid, as set out in subparagraph 1 of the Annex to Paragraph 8 of the InfrAG, is calculated on the basis of cylinder capacity, the type of engine (positive ignition or compression ignition) and the emission standard. That subparagraph is worded as follows:‘The amount of the infrastructure use charge:1.as regards the 10-day vignette for vehicles, with respect to which, for an annual vignette under point 3, an infrastructure use charge of(a)less than EUR 20 must be paid, shall be EUR 2.50(b)less than EUR 40 must be paid, shall be EUR 4(c)less than EUR 70 must be paid, shall be EUR 8(d)less than EUR 100 must be paid, shall be EUR 14(e)less than EUR 130 must be paid, shall be EUR 20 and(f)EUR 130 must be paid, shall be EUR 25.2.as regards the two-month vignette for vehicles, with respect to which, for an annual vignette under point 3, an infrastructure use charge ofless than EUR 20 must be paid, shall be EUR 7less than EUR 40 must be paid, shall be EUR 11less than EUR 70 must be paid, shall be EUR 18less than EUR 100 must be paid, shall be EUR 30less than EUR 130 must be paid, shall be EUR 40 andEUR 130 must be paid, shall be EUR 50.3.as regards the annual vignette forvehicles within the meaning of Paragraph 1(1), points 1 and 3 with reciprocating piston and rotary piston engines for every 100 cm3 of cylinder capacity or part thereof when they(aa)are propelled by positive ignition engines and(aaa)do not meet the requirements of the emission standards in points (bbb) and (ccc) or compliance with which is not correctly demonstrated, shall be EUR 6.50(bbb)meet the requirements of the Euro 4 or Euro 5 emission standards, shall be EUR 2(ccc)meet the requirements of the Euro 6 emission standard, shall be EUR 1.80(bb)are propelled by compression ignition engines anddo not meet the requirements of the emission standards in points (bbb) and (ccc) or compliance with which is not correctly demonstrated, shall be EUR 9.50meet the requirements of the Euro 4 or Euro 5 emission standards, shall be EUR 5meet the requirements of the Euro 6 emission standard, shall be EUR 4.80vehicles within the meaning of Paragraph 1(1), point 2, for every 200 kg of maximum laden weight or part thereof, shall be EUR 16provided that the total amount shall not exceed EUR 130.’9If the roads subject to the charge are used without a valid vignette or if the vignette has been calculated at a level that is too low, the charge is collected a posteriori by decision, in accordance with Paragraph 12 of the InfrAG. In that case, the charge to be paid corresponds to the amount of the annual vignette or the difference between the amount already paid and the amount of the annual vignette.10Paragraph 11 of the InfrAG provides for random inspections to verify compliance with the obligation to pay the charge. In accordance with Paragraph 11(7) of the InfrAG, the authorities may, at the place of inspection, require payment of the cost of the annual vignette and of a security of an amount equivalent to the fine to be imposed under Paragraph 14 of the InfrAG, as well as the procedural costs. In addition, the driver may be prohibited from continuing his journey if the charge is not paid at the place of inspection despite a request to do so and if there are reasonable doubts whether it will be paid later, or if the documents necessary for the inspection are not presented, if the information requested is not provided or if a security imposed is not paid, wholly or in part.11Paragraph 14 of the InfrAG states that non-payment or incomplete payment of the infrastructure charge, failure to provide information or provision of incorrect information and failure to comply with an order to stop the vehicle in the context of an inspection with respect to the obligation to pay the charge are administrative offences punishable by a fine. The KraftStG 12Paragraph 9(6) of the KraftStG states the following:‘With respect to national vehicles, the annual tax [on motor vehicles] shall be reduced (relief) for(1)passenger vehicles, for every 100 cm3 of cylinder capacity or part of that volume,when they comply with the obligatory limit values of Table 2 of Annex I to Regulation (EC) No 715/2007 [of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1),] and are propelled by:positive-ignition engines, by EUR 2.32,compression-ignition engines, by EUR 5.32,when they comply with the obligatory limit values of Table 1 of Annex I to [Regulation 715/2007] or line B of vehicle category M of the tables in point 5.3.1.4 of Annex I to [Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles (OJ 1970 L 76, p. 1),] in the version in force until 1 January 2013 and are propelled bypositive ignition engines, by EUR 2,compression ignition engines, by EUR 5,when they do not comply with the requirements under points (a) and (b) and are propelled bypositive ignition engines, by EUR 6.50,compression ignition engines, by EUR 9.50provided that the total does not exceed EUR 130;(2)motor homes for every 200 kg of maximum laden weight or part of that weight, by EUR 16, provided that the total does not exceed EUR 130;(3)passenger vehicles and motor homes witha registration number issued with respect to vintage cars, by EUR 130,a seasonal registration number issued with respect to each day of the period of use, by the proportion of the corresponding annual amount under points 1 to 3(a).The amount of the relief due under the first sentence shall be limited to the annual tax due under subparagraph 1, points 2 and 2a, and under subparagraph 4, point 2, in the case of seasonal registrations to the proportion of the annual amount corresponding to the period of use.’13In accordance with Paragraph 3(2) of the law amending the second law amending the road traffic tax, the entry into force of that legislation is dependent on commencement of the collection of the infrastructure use charge, in accordance with the InfrAG. Pre-litigation procedure and proceedings before the Court 14By letter of formal notice dated 18 June 2015, the European Commission initiated infringement proceedings against the Federal Republic of Germany, challenging, first, the combined effects of the national measures at issue and, second, the cost of short-term vignettes. That letter of formal notice, supplemented by a second letter of formal notice dated 10 December 2015, drew the attention of the German authorities to a possible infringement by those measures of Articles 18, 34, 45, 56 and 92 TFEU. Following correspondence with the German authorities and having issued a reasoned opinion on 28 April 2016, the Commission decided, on 29 September 2016, to bring proceedings before the Court in accordance with Article 258 TFEU.15However, after amendments were made to the provisions of the German legislation criticised by it, the Commission decided, on 17 May 2017, to terminate the infringement procedure.16By a letter dated 7 July 2017, the Republic of Austria brought before the Commission, under Article 259 TFEU, the possibility of an infringement by the Federal Republic of Germany of Articles 18, 34, 45, 56 and 92 TFEU resulting from the combined effects of the infrastructure use charge and the relief from motor vehicle tax for the proprietors of vehicles registered in Germany.17By letter dated 14 July 2017, the Commission acknowledged receipt of the letter from the Republic of Austria.18By letter dated 11 August 2017, the Federal Republic of Germany rejected the arguments of the Republic of Austria and justified the national measures at issue essentially by reference to a change in system, moving from financing by means of taxation to financing by users, and to the contention that the measures providing compensation are lawful on the basis of the Eurovignette Directive.19On 31 August 2017 a hearing was held at the offices of the Commission, at which the Republic of Austria and the Federal Republic of Germany each submitted their arguments.20The Commission did not issue a reasoned opinion within the three-month period provided for in Article 259 TFEU.21On 12 October 2017 the Republic of Austria therefore brought the present action.22By decisions of the President of the Court of 15 January and 14 February 2018, the Kingdom of the Netherlands and the Kingdom of Denmark were granted leave to intervene in support of the Republic of Austria and of the Federal Republic of Germany respectively. The action 23In support of its action, the Republic of Austria relies on four grounds of complaint with respect to the national legislation at issue, on the understanding that the legislation, although adopted, has not yet entered into force. The first and second grounds of complaint concern an infringement of Article 18 TFEU resulting, on the one hand, from the combined effect of the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany, and, on the other, the structuring and application of the infrastructure use charge. The third ground of complaint concerns an infringement of Articles 34 and 56 TFEU by the measures criticised within the first and second grounds of complaint, taken as a whole. The fourth ground of complaint concerns an infringement of Article 92 TFEU arising from the combined effect of the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany. The first ground of complaint: the infringement of Article 18 TFEU resulting from the combined effect of the national measures at issue Arguments of the parties 24The Republic of Austria claims that the combined effect of the infrastructure use charge and the concomitant relief from motor vehicle tax, in an amount at least equivalent to the amount of that charge, for which owners of vehicles registered in Germany qualify, has the consequence, de facto, that the burden of that charge falls only on the owners and drivers of vehicles registered in Member States other than Germany, the vast majority of whom are nationals of those States. That fact therefore entails indirect discrimination on the grounds of nationality, contrary to Article 18 TFEU.25That discrimination is a consequence of the absolute and inseverable link, both in terms of their substance and their temporal application, between the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany, a link which entails that the national measures at issue must be considered and assessed together from the perspective of EU law.26The Republic of Austria states, further, that the aim of the national measures at issue is to implement an electoral promise made during the Bundestag election campaign in 2013 in Germany, concerning the foreign drivers of motor vehicles being required to participate in the costs of financing the German infrastructure without imposing an additional burden on German owners of vehicles.27Last, the Republic of Austria refers to paragraph 23 of the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), as support for the existence of the indirect discrimination claimed.28The Federal Republic of Germany, while accepting that the national measures at issue form a unit both in terms of their subjective aims and of their objective content, disputes the existence of any discrimination resulting from the introduction of the infrastructure use charge, even considered in combination with the relief from motor vehicle tax.29In that regard, the Federal Republic of Germany observes, first, that, while the introduction of the infrastructure use charge alters the status quo to the disadvantage of owners and drivers of vehicles registered abroad, it does not entail treatment that is to the disadvantage of or that penalises those owners and drivers in comparison with owners of vehicles registered in Germany. On the contrary, the owners and drivers of vehicles registered in Member States other than Germany are placed, with respect to the contribution to the financing of the federal transport infrastructure, in a situation that is more favourable than that of owners of vehicles registered in Germany, since the former must pay the infrastructure use charge only when they use the German motorways, whereas the latter are, in any event, subject to that charge and must, in addition, bear the motor vehicle tax, even if the latter tax may be reduced. Further, the burden on the owners and drivers of vehicles registered in Member States other than Germany, with respect to the infrastructure use charge, corresponds at its maximum to the burden which falls in that respect, in any event, on the owners of vehicles registered in Germany.30Second, the Federal Republic of Germany states that the fact that the relief from motor vehicle tax is to the benefit only of owners of vehicles registered in Germany is based on EU law, in particular Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (OJ 1983 L 105, p. 59), which itself establishes the distribution of rights to tax vehicles in accordance with the place of registration and, thereby, in accordance with the place of habitual residence. The restriction on the national powers to tax motor vehicles brought about by that directive, which is intended to prevent double taxation of market participants and EU citizens, given the absence of harmonisation in that area, means that, for each vehicle, the only tax of importance is the vehicle tax of the Member State where that vehicle is registered. The amount of the German motor vehicle tax, which affects only the owners of vehicles registered in Germany, is therefore, for the owners of vehicles registered in the other Member States, of no relevance.31Third, the Federal Republic of Germany argues that the introduction of an infrastructure use charge the proceeds of which are transferred to the transport budget and are wholly used for its earmarked purpose, namely the improvement of the federal transport infrastructure, meets the objective of increasing the extent to which that infrastructure is financed by its users. That objective led that Member State to a change of system, the aim being to move from financing by means of taxation to financing by users. Against that background, the Federal Republic of Germany, in exercising its competence to determine direct taxes, decided to adjust the motor vehicle tax, by introducing a relief from part of that tax, in order to maintain the overall financial burden on the owners of vehicles registered in that Member State at the previous level and to prevent disproportionate double taxation.32Fourth, the possibility of offsetting the infrastructure use charge by reducing the motor vehicle tax emerges from the history of Article 7(3) and Article 7k of the Eurovignette Directive, which serves as a template for rules on charges for the use of the road network by passenger vehicles. The recent practice of some Member States, such as the United Kingdom or the Kingdom of Belgium, which, with respect to heavy goods vehicles, make use of that possibility, confirms that the national measures at issue are compatible with EU law.33Fifth and last, the Federal Republic of Germany argues that statements made during an election campaign are of no relevance to the issue of whether there is any difference in treatment that constitutes discrimination.34In the alternative, the Federal Republic of Germany refers, as grounds justifying any indirect discrimination that may result from the combination of the national measures at issue, to considerations linked to the protection of the environment, the distribution of the burden between the national and foreign users of the infrastructure and to the change in the system of financing the federal transport infrastructure.35The Kingdom of the Netherlands essentially concurs with the arguments put forward by the Republic of Austria and emphasises that, in this case, the situation of owners of vehicles registered in Germany is comparable with that of owners and drivers of vehicles registered in a Member State other than Germany, who make use of German motorways.36The Kingdom of Denmark, on the other hand, endorses the position of the Federal Republic of Germany that the national measures at issue are not discriminatory and emphasises, in particular, the competence of the Member States to establish, amend and remove direct taxes and national charges that are not harmonised at the EU level. Findings of the Court 37The Republic of Austria claims in essence, in its first ground of complaint, that the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany, although not formally based on a distinction on grounds of nationality, result, through their combined effect, in German nationals being accorded more favourable treatment than that accorded to nationals of other Member States, and are, therefore, in breach of the first paragraph of Article 18 TFEU.38The first paragraph of Article 18 TFEU provides that, within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality is prohibited.39In that regard, first, it must be observed that, in accordance with settled case-law, Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific rules on non-discrimination (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 25 and the case-law cited).40The principle of non-discrimination on the grounds of nationality has been given effect, in particular, in the area of the free movement of goods, in Article 34 TFEU, read together with Article 36 TFEU (see, to that effect, judgment of 8 June 2017, Medisanus, C‑296/15, EU:C:2017:431, paragraph 65), in the area of free movement of workers, in Article 45 TFEU (see, to that effect, judgment of 22 June 2017, Bechtel, C‑20/16, EU:C:2017:488, paragraph 32 and the case-law cited) and, in the area of freedom to provide services, in Articles 56 to 62 TFEU (see, to that effect, judgment of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 32 and the case-law cited).41It follows that, in the present case, the national measures at issue can be examined having regard to the first paragraph of Article 18 TFEU only to the extent that they apply to situations which do not fall within the scope of such specific rules on non-discrimination laid down by the FEU Treaty.42Second, it must be recalled that the general principle of non-discrimination on the grounds of nationality, as enshrined in the first paragraph of Article 18 TFEU, prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, judgment of 13 April 2010, Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 40 and the case-law cited).43In order to determine whether the first ground of complaint of the Republic of Austria is well founded, it is necessary, in the first place, to ascertain whether the national measures at issue are sufficiently connected with one another that they can be the subject of a joint assessment with regard to EU law.44In that regard, first, it must be observed that, as is apparent from the documents submitted to the Court, the infrastructure use charge and the relief from motor vehicle tax were introduced on the same date, namely 8 June 2015, then amended on dates that were very close, namely 18 May 2017 and 6 June 2017 respectively, and that the application of that relief was dependent on the commencement of collection of that charge. Further, the amount of the relief enjoyed by the owners of vehicles registered in Germany corresponds to the amount of the infrastructure use charge that those owners were first required to pay, except as regards Euro 6 emissions standard vehicles, the owners of which qualify for relief from the motor vehicle tax in an amount that is greater than that of the charge which they were required to pay. It follows that the effect of the relief from motor vehicle tax is, in all circumstances, to provide, at the very least, compensation, to the owners of vehicles registered in Germany, for the new charge constituted by the infrastructure use charge.45Further, with respect to the collection of the infrastructure use charge from the owners of vehicles registered in Germany, the Federal Republic of Germany has provided that that charge is to be payable, in the same way as the motor vehicle tax, by virtue of the fact that the vehicle is registered.46It is therefore clear that, both in terms of their substance and their temporal application, there is such a sufficiently close connection between the national measures at issue that it is justifiable to undertake a joint assessment of them with regard to EU law, in particular Article 18 TFEU. The existence of such a connection is, moreover, recognised by the Federal Republic of Germany, as is apparent from paragraph 28 of the present judgment.47In the second place, it is necessary to ascertain whether the national measures at issue, assessed jointly, establish a difference in treatment on the ground of nationality.48In that regard, it is undisputed that, pursuant to those measures, all the users of German motorways are subject to the infrastructure use charge, irrespective of where their vehicles are registered. However, the owners of vehicles registered in Germany qualify for the relief from motor vehicle tax in an amount that is at least equivalent to the amount of the charge that they have had to pay, so that the economic burden of that charge rests, de facto, only on the owners and drivers of vehicles registered in a Member State other than Germany.49It is accordingly apparent that, because of the combination of the national measures at issue, the treatment of owners and drivers of vehicles registered in a Member State other than Germany, who make use of German motorways, is less favourable than that of the owners of vehicles registered in Germany, with regard to the use of those motorways, notwithstanding that they are in comparable situations with respect to that use.50Such unequal treatment is particularly plain with respect to Euro 6 emissions standard vehicles. Whereas the owners of that type of vehicle registered in Germany receive overcompensation for the infrastructure use charge, the owners and drivers of Euro 6 emissions standard vehicles registered in a Member State other than Germany, who make use of German motorways, must, in any event, bear that charge. Accordingly, the latter are treated less favourably not only in comparison with the owners of Euro 6 emissions standard vehicles registered in Germany but also in comparison with the owners of vehicles registered in Germany that are more polluting.51Last, while the difference in treatment that has been identified is not directly based on nationality, the fact remains that the vast majority of owners and drivers of vehicles registered in Member States other than Germany are not German nationals, whereas the vast majority of owners of vehicles registered in Germany are German nationals, so that such a difference has in fact the same outcome as a difference in treatment based on nationality.52The fact that, on the one hand, the owners of vehicles registered in Germany are liable to pay the infrastructure use charge and are, in addition, subject to motor vehicle tax, and that, on the other, the amount which has to be paid by the owners and drivers of vehicles registered in Member States other than Germany, with respect to that charge, corresponds, at its maximum, to the amount which has to be paid by the owners of vehicles registered in Germany, with respect to the same charge, in no way affects, contrary to what is argued by the Federal Republic of Germany, the finding made in paragraph 49 of the present judgment. Accordingly, the unequal treatment that has been identified, which is to the disadvantage of owners and drivers of vehicles registered in Member States other than Germany, is due to the fact that, because of the relief for which the owners of vehicles registered in Germany qualify, those persons are not, de facto, subject to the economic burden represented by the infrastructure use charge.53Nor can that finding be invalidated by the arguments put forward by the Federal Republic of Germany, summarised in paragraphs 30 to 32 of the present judgment.54First, as regards the argument that it is compatible with EU law that the relief from motor vehicle tax benefits solely owners of vehicles registered in Germany, the Court has indeed held that, since the taxation of motor vehicles has not been harmonised, the Member States are free to exercise their powers of taxation in that area, registration being the natural corollary of the exercise of those powers of taxation (see, to that effect, judgment of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraphs 40 and 41). That explains why the motor vehicle tax affects only the owners of vehicles registered in Germany, with the consequence that only they can qualify for the tax relief concerned.55However, that fact does not mean that the amount of that tax is of no relevance to the assessment of whether there is discrimination affecting the owners and drivers of vehicles registered in Member States other than Germany.56It must be recalled that, according to settled case-law, the Member States must exercise their competence in the area of direct taxation in a way that is compatible with EU law and, in particular, with the fundamental freedoms guaranteed by the FEU Treaty (judgments of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraph 40, and of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 44 and the case-law cited).57It follows that, when they establish taxes on motor vehicles, the Member States must have due regard for, inter alia, the principle of equal treatment, so that the arrangements made for the imposition of those taxes do not constitute a means of discrimination.58In this case, the effect of the relief from motor vehicle tax which is to the benefit of owners of vehicles registered in Germany is to offset entirely the infrastructure use charge paid by those persons, with the result that, as stated in paragraph 48 of the present judgment, the economic burden of that charge falls, de facto, solely on the owners and drivers of vehicles registered in Member States other than Germany, which constitutes a discriminatory measure which is to the disadvantage of the latter.59Accordingly, the amount of the motor vehicle tax is relevant with respect to owners and drivers of vehicles registered in Member States other than Germany in so far as the rules applicable for its determination give rise, in reality, to a difference in treatment that is to their disadvantage.60Second, as maintained by the Federal Republic of Germany, it is open to the Member States to alter the system for the financing of their road infrastructure by replacing a system of financing by means of taxation with a system of financing by all users, including the owners and drivers of vehicles registered in other Member States who use that infrastructure, so that all those users contribute in an equitable and proportionate way to that financing, provided that any such alteration complies with EU law, including the principle of non-discrimination enshrined in the first paragraph of Article 18 TFEU. Such an alteration is consistent with the freedom of each Member State to choose how to define the means of financing its public infrastructure, in a way that is compatible with EU law.61In this case, it is apparent from the written pleadings of the Federal Republic of Germany that that Member State decided, with respect to its federal transport infrastructure, to move in part from a system of financing by means of taxation to a system of financing based on the ‘user pays’ and ‘polluter pays’ principles.62That change in system rests on the introduction of the infrastructure use charge, to which all users of German motorways are subject, whether or not their vehicle is registered in Germany, and the revenue from which is entirely allocated to financing the road infrastructure, the Federal Republic of Germany having structured the rates of that charge to correspond to the emissions standard of the vehicles concerned.63It has, however, to be said that the national measures at issue do not appear to be consistent with the objective pursued by the Federal Republic of Germany when it introduced the infrastructure use charge, as stated in paragraph 61 of the present judgment.64In that regard, the Federal Republic of Germany, in parallel with the introduction of that charge, designed a mechanism to provide individual compensation for that charge, to benefit the owners of vehicles registered in Germany, by means of a relief from motor vehicle tax in an amount that is at least equivalent to the amount paid in respect of that charge.65It is not, however, possible to agree with the argument of the Federal Republic of Germany that that relief is a reflection of movement to a system of financing of road infrastructure by all users, pursuant to the ‘user pays’ and ‘polluter pays’ principles.66The Federal Republic of Germany has itself accepted in its written pleadings that, because of the relief from motor vehicle tax for which they qualify, the owners of vehicles registered in Germany, notwithstanding the fact that they are subject to payment of the infrastructure use charge, have not in reality incurred any additional financial burden since the introduction of that charge.67Admittedly, that Member State argues that those owners were already contributing to the financing of the road infrastructure before the introduction of that charge, through the motor vehicle tax, and that the mechanism for providing compensation is intended to avoid a disproportionate tax burden. However, other than the Federal Republic of Germany itself stating, in general terms, that the federal infrastructure is financed from taxation, it has produced no details of the extent of that contribution and has therefore in no way established that the compensation granted to those owners, in the form of a relief from that tax in an amount at least equivalent to the amount of the infrastructure use charge, does not exceed that contribution and is therefore appropriate.68Further, with respect to owners of vehicles registered in Germany, it must be observed that the infrastructure use charge is designed in such a way that it is not at all dependent on those owners actually using federal roads. Accordingly, first, that charge is payable even by such an owner who never makes use of those roads. Second, an owner of a vehicle registered in Germany is automatically subject to the annual charge and therefore has no opportunity to choose a vignette for a shorter period if that better corresponds to the frequency of his use of those roads. Those factors, coupled with the fact that those owners qualify moreover for a relief from the motor vehicle tax in an amount that is at least equivalent to the amount paid with respect to that charge, demonstrate that movement to a system of financing based on the ‘user pays’ and ‘polluter pays’ principles in reality affects exclusively the owners and drivers of vehicles registered in Member States other than Germany, whereas the principle of financing by means of taxation continues to apply with respect to owners of vehicles registered in Germany.69In those circumstances, it must be concluded that the mechanism for providing compensation at issue in this case is discriminatory with respect to owners and drivers of vehicles registered in Member States other than Germany, since the Federal Republic of Germany has been unable to establish that that mechanism corresponds to the objective, declared by that Member State, of moving from a system of financing of infrastructure by means of taxation to a system of financing by all users, the consequence of the reduction in motor vehicle tax introduced by that Member State being, in fact, that the owners of vehicles registered in Germany obtain relief from the infrastructure use charge.70Third, the combination of the national measures at issue cannot in any event find any justification, even by analogy, in the Eurovignette Directive.71Suffice it to state, in that regard, that there is no provision of that directive which permits, in connection with the taxation of heavy good vehicles for the use of infrastructure, a mechanism for providing compensation for the infrastructure use charge such as that at issue in this case. Apart from the fact that Article 7k of that directive concerns only ‘appropriate compensation’, that compensation must, in any event, comply with EU law.72Further, nor can the supposed existence, in the context of the Eurovignette Directive, of templates for offsetting the motor vehicle tax in other Member States that resemble the template at issue in this case support the argument that the combination of the national measures at issue is compatible with Article 18 TFEU.73Third and last, it must be recalled that, according to settled case-law, indirect discrimination on grounds of nationality can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate objective of the national provisions (judgment of 4 October 2012, Commission v Austria, C‑75/11, EU:C:2012:605, paragraph 52 and the case-law cited).74In that context, the Federal Republic of Germany, in order to justify any indirect discrimination resulting from the combination of the national measures at issue, relies on considerations linked to the protection of the environment, the distribution of the burden between German users and foreign users in order to preserve the coherence of the national tax system, and the change in the system for financing infrastructure.75With respect to, first, environmental considerations, while, in accordance with the Court’s case-law, the protection of the environment constitutes a legitimate objective for the purposes of justifying a difference in treatment on ground of nationality (see, by analogy, with respect to the justification of restrictions on fundamental freedoms, judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 36 and the case-law cited), the Federal Republic of Germany fails however to establish in what way the introduction of an infrastructure use charge that affects, de facto, only the owners and drivers of vehicles registered in Member States other than Germany would be appropriate to the achievement of that objective.76As regards, second, the objective of moving from a system of financing infrastructure by means of taxation to a system of financing by users, even if that objective were capable of justifying a difference in treatment, it is clear from paragraphs 64 to 69 of the present judgment that the combination of the national measures at issue is not, however, appropriate to the attainment of that objective.77With respect to, last, the argument of the Federal Republic of Germany that it is necessary to ensure the coherence of the national tax system by means of an equitable distribution of the burden represented by the infrastructure use charge, that argument cannot be accepted. As stated in paragraph 69 of the present judgment, the effect of the combination of the national measures at issue is, de facto, to exempt from that charge the owners of vehicles registered in Germany and, therefore, to confine the burden represented by that charge solely to the owners and drivers of vehicles which are not registered in that Member State.78In the light of the foregoing, the first ground of complaint must be upheld and the Court must declare that the Federal Republic of Germany, by introducing the infrastructure use charge and by providing, simultaneously, for a relief from motor vehicle tax in an amount that is at least equivalent to the amount of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Article 18 TFEU. The second ground of complaint: infringement of Article 18 TFEU resulting from the structuring and application of the infrastructure use charge 79The Republic of Austria claims that the structuring of the infrastructure use charge is in itself discriminatory and, therefore, contrary to the first paragraph of Article 18 TFEU. In that regard, the Republic of Austria states that the InfrAG makes in a number of respects a distinction between vehicles registered in Germany and vehicles registered abroad.80In particular, the powers to intervene provided for in Paragraphs 11, 12 and 14 of the InfrAG, namely random inspections, the collection of a security and the prohibition on continuing the journey, and the recovery a posteriori of the infrastructure use charge to the amount of the annual vignette or the difference between the amount already paid and the amount of the annual vignette, under Article 12 of the InfrAG, are applicable only to vehicles registered abroad.81The vast majority of those affected by the imposition of fines in accordance with Paragraph 14 of the InfrAG are also, according to the Republic of Austria, the owners and drivers of vehicles registered in Member States other than Germany. The fact that the constitutive elements of certain offences, such as ‘incomplete payment of the charge’, can be imputed only to those owners and drivers supports that assertion.82The judgment of 19 March 2002, Commission v Italy (C‑224/00, EU:C:2002:185, paragraphs 16 to 19), confirms the existence of the difference in treatment that the Federal Republic of Germany has established.83The Republic of Austria recognises that the objective of ensuring payment of the infrastructure use charge payable by the owners and drivers of vehicles registered in Member States other than Germany could possibly justify the difference in treatment at issue, with respect to the powers to intervene and the imposition of fines. Such an objective could not, however, justify such a difference with respect to the recovery a posteriori of the infrastructure use charge, under Article 12 of the InfrAG. In relation to the latter, the Republic of Austria again refers to the judgment of 19 March 2002, Commission v Italy (C‑224/00, EU:C:2002:185, paragraph 26).84In any event, the specific arrangements for the payment of the infrastructure use charge are disproportionate.85As regards, in particular, the payment of a fine, the Republic of Austria states that, as the Court held in paragraph 43 of the judgment of 26 January 2006, Commission v Spain (C‑514/03, EU:C:2006:63), provided that there is the possibility of enforcing fines on the basis of the provisions of EU law or international treaties, the lodging of a security goes beyond what is necessary to ensure the payment of the fine. In that regard, the Republic of Austria refers to the treaty on judicial cooperation in administrative matters between the Republic of Austria and the Federal Republic of Germany.86The Federal Republic of Germany states that the rules relating to enforcement and monitoring of payment of the infrastructure use charge are applicable without distinction to the owners of vehicles registered in Germany and to the owners and drivers of vehicles registered in Member States other than Germany.87While it is true that the collection of a security, provided for in Paragraph 11(7) of the InfrAG, concerns only the owners and drivers of vehicles registered in Member States other than Germany, such a collection is justified since a foreign national who is liable to pay the infrastructure use charge is beyond the reach of both the administrative authority responsible for that charge and the administrative inspection authority, when he leaves German territory. Further, the collection of a security is not obligatory and its amount is not, moreover, disproportionate.88As regards the judgment of 26 January 2006, Commission v Spain (C‑514/03, EU:C:2006:63), referred to by the Republic of Austria, the Federal Republic of Germany states that, in that judgment, the Court did not hold in general that the requirement of a security is disproportionate in the light of the current state of development of cross-border cooperation in the area of justice, but rather insisted, on grounds of proportionality, that account should be taken of the constitution of a security already paid in the Member State of origin, which has not taken place in this case.89The Federal Republic of Germany contends that the recovery a posteriori of the infrastructure use charge to the amount of the annual vignette or the difference between the amount already paid and the amount of the annual vignette is intended to ensure that the charge payable will in fact be paid, and is proportionate with respect to that objective. In that context, the Federal Republic of Germany observes that the owners and drivers of vehicles registered in Member States other than Germany are not treated differently from the owners of vehicles registered in Germany who, in any event, must pay the price of an annual vignette.90Last, as regards the fine prescribed in the event of non-compliance with obligations concerning the infrastructure use charge, such a fine, in the view of the Federal Republic of Germany, is neither discriminatory nor disproportionate. In that regard, the Federal Republic of Germany states that the imposition of such a fine is not automatic and that it is subject to the principle that the adoption of excessive measures is prohibited.91It must be ascertained whether the provisions of the InfrAG relating to random inspections, the prohibition on continuing the journey using the vehicle concerned, the recovery a posteriori of the infrastructure use charge, the possible imposition of a fine and the payment of a security give rise to discrimination that is to the disadvantage of owners and drivers of vehicles registered in Member States other than Germany and, if so, whether that discrimination can be justified.92In that regard, as far as concerns, in the first place, the provisions of the InfrAG relating to random inspections, the prohibition on continuing the journey and the possible imposition of a fine in the event of an infringement of the obligation to pay the infrastructure use charge that is due, it must be stated, as the Advocate General observed in points 80 and 81 of his Opinion, that there is nothing in the documents submitted to the Court from which it can be concluded that those provisions are applicable solely to the owners and drivers of vehicles registered in Member States other than Germany.93On the contrary, it is clear from the wording of those provisions that both the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany are liable to be the subjects of random inspections, with a view to verifying that they have complied with the obligation to pay the infrastructure use charge that is due and, if not, liable to be prohibited from continuing their journey using the vehicle concerned and required to pay a fine, as the Federal Republic of Germany argued in its observations.94Moreover, the Republic of Austria has failed to establish that the provisions of the InfrAG in that respect, although drafted in neutral terms, place at a particular disadvantage the owners and drivers of vehicles registered in Member States other than Germany.95On the latter point, with respect to the provisions relating to the imposition of fines, it must be observed, first, that, contrary to what is claimed by the Republic of Austria, the circumstance that only owners and drivers of vehicles registered in Member States other than Germany can be found to satisfy the constituent elements of certain offences, such as incomplete payment of the charge or failure to provide correct information, does not support the assertion that those provisions principally affect those owners and drivers.96That circumstance is an inevitable consequence of the objective differences between the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany with respect to both the determination of the amount of the infrastructure use charge and its payment. In that regard, whereas the owners of vehicles registered in Germany are obliged to pay the charge in advance, in the form of an annual vignette purchased when the vehicles are registered, in an amount determined automatically by the competent authority, the owners and drivers of vehicles registered in Member States other than Germany have to pay that charge only when they use the German motorways, after the crossing of a border, in the form of a vignette of variable duration, as chosen by the user concerned, and in an amount determined according to the information supplied by the user himself.97Second, the Republic of Austria has provided no information as to the amount of the possible fines that might be imposed for offences that can be committed only by the owners and drivers of vehicles registered in Member States other than Germany, so that there is nothing in the documents submitted to the Court to permit a finding that such an amount is disproportionate in comparison with the seriousness of the offences.98As regards, in the second place, recovery a posteriori, provided for in Paragraph 12 of the InfrAG, of the unpaid infrastructure use charge, to the amount of the annual vignette, in the event of use of the German motorways without a valid vignette, or the difference between the amount already paid and the amount of the annual vignette, in the event of use of German motorways with a vignette the period of validity of which is too short, such a provision does not appear to be discriminatory, since the owners of vehicles registered in Germany must also pay the amount corresponding to the cost of an annual vignette.99Moreover, even if that provision were to establish a difference in treatment that places owners and drivers of vehicles registered in Member States other than Germany at a disadvantage, the difference would be justified by the objective of ensuring actual payment of the infrastructure use charge payable. Apart from the fact that such a provision ensures that that objective can be achieved, the obligation imposed on the owners and drivers of vehicles registered in Member States other than Germany to pay, in the event of an offence, the infrastructure use charge to the amount of the annual vignette or the difference between the amount of the annual vignette and the amount already paid does not appear disproportionate, taking into consideration the fact that the German authorities who find, in the course of a random inspection, that the obligation to purchase a vignette in order to use the German motorways has been infringed cannot in general know for how long the offender has driven on those roads without having the requisite vignette.100As regards, third, the possibility, provided for in Paragraph 11(7) of the InfrAG, that those authorities which find, in the course of a random inspection, that the obligation to pay the infrastructure use charge that is due has been infringed, may collect a sum of money by way of security in an amount equivalent to the fine imposed and the costs of the administrative procedure, it is true, as the Federal Republic of Germany confirmed in its observations, that that possibility is available only with respect to offenders using a vehicle registered in a Member State other than Germany. Consequently, that provision establishes a difference in treatment that places the latter at a disadvantage.101The Federal Republic of Germany argues however that such a difference is justified by the need to ensure payment of the fines imposed on offenders using a vehicle registered in a Member State other than Germany, taking account of the difficulty in recovering such debts when those offenders have left German territory.102In that regard, it must be recalled that the Court has previously held that the absence of any treaty instruments to secure the enforcement of a court decision in a Member State other than that in which it was delivered objectively justifies a difference in treatment between resident and non-resident offenders and that the obligation to pay a sum of money by way of security, imposed solely on non-resident offenders, is appropriate to prevent them from avoiding an effective penalty simply by declaring that they do not consent to the immediate collection of the fine (judgment of 19 March 2002, Commission v Italy, C‑224/00, EU:C:2002:185, paragraph 21).103Having regard to that case-law, it is clear that the objective of ensuring the payment of the fines imposed on offenders using a vehicle registered in a Member State other than Germany, pursued by the possibility of requiring them to provide a security, justifies the consequent difference in treatment that arises between those offenders and offenders using a vehicle registered in Germany.104The existence of a bilateral agreement on judicial and administrative cooperation between the Republic of Austria and the Federal Republic of Germany is of no significance in that regard, since, as the Advocate General stated in point 97 of his Opinion, the Federal Republic of Germany has not concluded similar agreements with all the other Member States.105Given that the possibility of requiring payment of a sum of money by way of security makes it possible to achieve the objective pursued, it remains to be determined whether such a requirement goes beyond what is necessary to attain that objective.106In that regard, it must be noted that, on the one hand, as is apparent from the wording of Paragraph 11(7) of the InfrAG, and as the Federal Republic of Germany has stated in its observations, in the event that, during a random inspection, the provisions of national law concerning the infrastructure use charge have been infringed, the German authorities may, but are not obliged to, require offenders using a vehicle registered in a Member State other than Germany and refusing to pay immediately the fine imposed to pay a sum as security in order to guarantee payment of that fine.107Since the payment of a sum as security is not required automatically of all offenders, it is reasonable to presume that the competent authorities will impose that requirement only when, having regard to the individual circumstances, there is a risk that the fine imposed may not be collected or may be collected only with great difficulty. In any event, the Republic of Austria has provided no reason to call into question that presumption.108On the other hand, it must be noted that the amount fixed for that sum as security is limited to the fine imposed and to the costs of the administrative procedure.109In those circumstances, it is not apparent that the difference in treatment resulting from the possibility of requiring offenders using a vehicle registered in a Member State other than Germany to pay a sum as security in order to ensure payment of the fine imposed is disproportionate to the objective pursued.110In the light of the foregoing, the second ground of complaint must be rejected. The third ground of complaint: infringement of Articles 34 and 56 TFEU 111The Republic of Austria argues that the national measures at issue are liable to have effects on cross-border supplies of goods made using passenger vehicles weighing up to 3.5 tonnes which are subject to the infrastructure use charge and on the supplies of services made by non-residents as well as supplies of services made to non-residents, and consequently those measures are in breach of the principles of the free movement of goods and the freedom to provide services.112Referring to its arguments developed in the context of the first and second grounds of complaint, the Republic of Austria claims that the national measures at issue are discriminatory and also constitute unlawful restrictions on the fundamental freedoms mentioned in the preceding paragraph.113The Federal Republic of Germany contends that the infrastructure use charge affects the sales distribution channel of products and constitutes, accordingly, a selling arrangement, within the meaning of the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), which does not fall within the scope of Article 34 TFEU, provided that it is not overtly or covertly discriminatory.114The relief from motor vehicle tax cannot, moreover, according to the Federal Republic of Germany, be characterised as ‘cross-border’ since it affects only national citizens and is therefore not a measure having equivalent effect to quantitative restrictions on imports.115In any event, the link between the introduction of an infrastructure use charge for passenger vehicles and any restrictions on access to the market of goods carried in those vehicles is, in accordance with the case-law of the Court, in particular the judgment of 13 October 1993, CMC Motorradcenter (C‑93/92, EU:C:1993:838), too uncertain and indirect to warrant the conclusion that there is a restriction on the free movement of goods, within the meaning of Article 34 TFEU.116In addition, the Federal Republic of Germany contends that nor does the infrastructure use charge impinge on the freedom to provide services, within the meaning of Article 56 TFEU. There is no actual restriction on the access to the German market of service providers and service recipients from other Member States of the Union, since the impact of the measures at issue on the cost of the services concerned is marginal.117The Federal Republic of Germany states that measures whose only effect is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State are not covered by Article 56 TFEU (judgment of 8 September 2005, Mobistar andBelgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31). In that regard, the Federal Republic of Germany states that service providers and service recipients from other Member States do not suffer, because of the introduction of the infrastructure use charge and the simultaneous relief from motor vehicle tax, any indirect discrimination in comparison with German providers and recipients of the same services.118Last, the Kingdom of Denmark states that Article 7k of the Eurovignette Directive necessarily presupposes that the introduction of user charges for heavy goods vehicles, with concomitant compensation for national transport undertakings liable to have an indirect effect on the free movement of goods and the freedom to provide services, is not in breach of Articles 34 and 56 TFEU. It would be fundamentally in breach of the principles underpinning Article 7k that any system of compensation of that kind could be established outside its area of application.– Whether there is a restriction on the free movement of goods 119It must be recalled that the free movement of goods between Member States is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect (judgment of 27 April 2017, Noria Distribution, C‑672/15, EU:C:2017:310, paragraph 17 and the case-law cited).120In accordance with settled case-law, the prohibition of measures having equivalent effect to quantitative restrictions on imports laid down in Article 34 TFEU covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Union trade (judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 26 and the case-law cited).121Further, a measure, even if it has neither the object nor the effect of treating goods coming from other Member States less favourably, also falls within the scope of the concept of a ‘measure having equivalent effect to quantitative restrictions’, within the meaning of Article 34 TFEU, if it hinders access to the market of a Member State of products originating in other Member States (judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 29 and the case-law cited).122Last, it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified on one of the grounds of public interest laid down in Article 36 TFEU or by imperative requirements. In either case, the provision of national law must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (judgments of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 53 and the case-law cited, and of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 110).123That case-law must guide the Court in determining whether the national measures at issue adversely affect the free movement of goods.124For the purposes of that determination, it must be recalled that, as was stated in paragraph 46 of the present judgment, the link between those measures justifies their being assessed jointly with regard to EU law and, consequently, Article 34 TFEU.125In that regard, it must, first, be stated that, even though the infrastructure use charge is not levied on goods carried as such, it is nonetheless capable of affecting goods that are delivered using passenger vehicles weighing up to 3.5 tonnes registered in a Member State other than Germany, on the crossing of the border, and it must therefore be examined, in combination with the relief from motor vehicle tax, in the light of the applicable provisions concerning the free movement of goods.126Second, the considerations mentioned in paragraphs 48 and 49 of the present judgment permit the finding that, although the infrastructure use charge is formally applicable both with respect to goods delivered using vehicles registered in Germany and with respect to goods delivered using vehicles registered in a Member State other than Germany, it turns out that, because of the relief from motor vehicle tax, applicable with respect to the former category of goods, that charge is capable of affecting, in fact, only the latter category of goods. Consequently, because of the combined application of the national measures at issue, the latter goods are treated less favourably than goods delivered using vehicles registered in Germany.127It follows from the foregoing that the national measures at issue are liable to restrict the access to the German market of goods from other Member States. The infrastructure use charge to which, in reality, only the vehicles that carry those goods are subject is liable to increase the costs of transport and, as a consequence, the price of those goods, thereby affecting their competitiveness.128The argument of the Federal Republic of Germany that the infrastructure use charge constitutes merely a selling arrangement, within the meaning of the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), cannot be accepted.129Since, as the Advocate General stated in point 118 of his Opinion, the concept of ‘selling arrangements’ covers only provisions of national law that regulate the manner in which goods may be marketed, rules concerning the manner in which goods may be transported are not within the scope of that concept.130Nor is it possible to accept the argument of the Federal Republic of Germany that any restrictive effects of the infrastructure use charge are too uncertain and indirect to infringe Article 34 TFEU, in accordance with the Court’s case-law, in particular the judgment of 13 October 1993, CMC Motorradcenter (C‑93/92, EU:C:1993:838).131In that regard, suffice it to state that, having regard to the consequences of the national measures at issue described in paragraph 127 of the present judgment, it cannot reasonably be maintained that the restrictive effects of those measures are too uncertain and indirect to infringe Article 34 TFEU.132In those circumstances, it must be concluded that the national measures at issue constitute a restriction on the free movement of goods, contrary to Article 34 TFEU, unless the restriction is objectively justified.133In that regard, the Federal Republic of Germany has not sought to rely on any ground capable of justifying such a restriction. In any event, the considerations relied on by that Member State, in response to the first ground of complaint, in order to justify the difference in treatment between the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany, cannot serve as appropriate justification for that restriction, for the same reasons as are stated in paragraphs 75 to 77 of the present judgment.134Consequently, the national measures at issue constitute a restriction on the free movement of goods, contrary to Article 34 TFEU.– Whether there is a restriction on the freedom to provide services 135It must be recalled that, in accordance with the Court’s case-law, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (judgment of 28 April 1998, Kohll, C‑158/96, EU:C:1998:171, paragraph 33 and the case-law cited).136National measures which prohibit, impede or render less attractive the exercise of the freedom to provide services are restrictions on that freedom (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 46 and the case-law cited).137On the other hand, measures the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State do not fall within the scope of Article 56 TFEU (judgment of 8 September 2005, Mobistar and Belgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31 and the case-law cited).138It must also be recalled that, in accordance with settled case-law, the freedom to provide services includes not only the active aspect of the freedom to provide services, where the service provider travels to the recipient of the services, but also the passive aspect of the freedom to provide services, that is, the freedom of the recipients of services to travel to another Member State where the service provider is located in order to receive the services there (see, to that effect, judgments of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 15, and of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 36 and the case-law cited).139Last, it follows from the Court’s case-law that a restriction on the freedom to provide services is warranted only if it pursues a legitimate objective compatible with the FEU Treaty and is justified by overriding reasons in the public interest; if that is the case, it must be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain that objective (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 52 and the case-law cited).140That case-law must guide the Court in determining whether the national measures at issue, assessed jointly, are in breach of the freedom to provide services.141In that regard, it is undisputed that the service providers who travel to Germany in order to supply their services there, using a vehicle weighing up to 3.5 tonnes registered in a Member State other than Germany, are subject to the infrastructure use charge, and that the majority of those service providers are established in a Member State other than Germany, whereas the majority of providers of services in Germany, who, in order to supply the service, travel using a vehicle registered in that Member State, are established in Germany.142Nor is it disputed that the recipients of services who, using a vehicle registered in a Member State other than Germany, travel into Germany in order to receive there the services concerned are subject to that charge and that the majority of those recipients come from a Member State other than Germany, whereas the recipients of services supplied in Germany, who, in order to receive those services, travel in a vehicle registered in Germany, normally come from that Member State.143Further, on the basis of the considerations mentioned in paragraphs 48 and 49 of the present judgment, it can be concluded that, because of the relief from motor vehicle tax to which service providers and service recipients established in Germany are entitled, the infrastructure use charge affects, in reality, only the service providers and service recipients coming from another Member State.144It follows from the foregoing that the national measures at issue are liable to restrict the access to the German market of service providers and service recipients from a Member State other than Germany. The infrastructure use charge is liable, because of the relief from motor vehicle tax that is part of the national measures at issue, either to increase the cost of services supplied in Germany by those service providers, or to increase the cost for those service recipients inherent in travelling into Germany in order to be supplied with a service there.145The Federal Republic of Germany cannot validly rely on the case-law cited in paragraph 117 of the present judgment in order to deny the existence of a restriction in this case.146That case-law is applicable only where the national measures at issue affect in the same way the provision of services between Member States and that within one Member State, which is not the position in this case.147In those circumstances, it must be concluded that the national measures at issue constitute a restriction on the freedom to provide services, contrary to Article 56 TFEU, unless the restriction is objectively justified.148In that regard, the Federal Republic of Germany has not sought to rely on any ground capable of justifying such a restriction. In any event, the considerations relied on by that Member State, in response to the first ground of complaint, in order to justify the difference in treatment between the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany, cannot serve as appropriate justifications for that restriction, for the same reasons as are stated in paragraphs 75 to 77 of the present judgment.149Consequently, the national measures at issue constitute a restriction on the freedom to provide services, contrary to Article 56 TFEU.150In the light of the foregoing, the third ground of complaint must be upheld and it must be declared that the Federal Republic of Germany, by introducing the infrastructure use charge, and by providing, simultaneously, for relief from motor vehicle tax in an amount at least equivalent to that of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Articles 34 and 56 TFEU. The fourth ground of complaint: infringement of Article 92 TFEU 151The Republic of Austria claims that the German legislation infringes Article 92 TFEU, which prohibits any discrimination in the area of transport, which excludes any possibility of justification and the scope of which covers commercial bus transportation or the transportation of goods by passenger vehicles weighing up to 3.5 tonnes.152The Republic of Austria states that the prerequisite of Article 92 TFEU not being applicable is the adoption of provisions of secondary law. There are, however, no binding rules of secondary law with respect to passenger vehicles weighing up to 3.5 tonnes.153The Republic of Austria considers, consequently, that the legal principle which stems from paragraph 23 of the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), can be transposed to the present case.154The Federal Republic of Germany contends, in the first place, that the scope of Article 92 TFEU does not extend to the infrastructure use charge, even considered in combination with the relief from motor vehicle tax, since, having regard to the fact that the charge is limited to certain categories of vehicles, commercial transport is largely exempted from the obligation to pay the charge.155In the second place, contrary to the interpretation of Article 92 TFEU as a standstill clause, adopted by the Court in the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), the Federal Republic of Germany considers that the prohibition on altering existing rules laid down in Article 92 TFEU does not prescribe the protection of the status quo with respect to the competitive situation, but prohibits solely direct or indirect discrimination against foreign transport undertakings, a prohibition that has not been infringed in this case.156In the third place, even if Article 92 TFEU must be interpreted as being a guarantee of the status quo, the Federal Republic of Germany considers that that provision is no longer applicable since the Eurovignette Directive contains criteria with respect to national legislation which may also be applied to vehicles weighing up to 3.5 tonnes when road use charges are levied. In particular, Article 7(1) and Article 7k of that directive permit national measures such as those at issue in this case.157The Kingdom of Denmark states that the subject matter of the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), on which the Republic of Austria relies, was exclusively and specifically the standstill clause now to be found in Article 92 TFEU, taking account of the state of the law preceding the adoption of the specific EU legislation on the imposition of charges on heavy good vehicles, now to be found in the Eurovignette Directive, a directive from which it is clear that the national measures at issue, established at the same time, are compatible with Article 92 TFEU.158According to Article 92 TFEU, until the provisions referred to in Article 91(1) TFEU have been laid down, no Member State may, unless the Council has unanimously adopted a measure granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, on the date of their accession, less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.159In this case, it is, first, undisputed that the transport activity subject to the infrastructure use charge can be carried out using vehicles weighing up to 3.5 tonnes. That being the case, the activity is commonly known as ‘light transport’.160Second, while the road transport sector is to a great extent covered by EU legislation, it remains the case that light transport is not the subject of any legislation at the EU law level. In particular, no legislation on charging for the use of roads by vehicles weighing up to 3.5 tonnes has been enacted, in accordance with Article 91 TFEU. It follows accordingly from Article 1 of the Eurovignette Directive, read together with Article 2(d) of that directive, that the harmonisation of the legislation of Member States effected by that directive concerns solely vehicles weighing more than 3.5 tonnes.161Last, taking account of the considerations set out in paragraphs 141 and 143 of the present judgment, it is clear that, because of the combination of the national measures at issue, only those carriers who use a vehicle weighing up to 3.5 tonnes registered in a Member State other than Germany (‘the foreign carriers’) are, in fact, affected by the infrastructure use charge, since carriers who use a vehicle weighing less than 3.5 tonnes registered in Germany (‘the German carriers’) are eligible for compensation for that charge.162It is therefore clear that, by offsetting in its entirety the new tax burden constituted by the infrastructure use charge, payable by all carriers, by means of a relief from motor vehicle tax in an amount at least equivalent to the charge paid, a relief to the benefit of the German carriers from which the foreign carriers are excluded, the effect of the national measures at issue is to alter, unfavourably, the situation of the foreign carriers in relation to that of the German carriers (see, to that effect, judgment of 19 May 1992, Commission v Germany, C‑195/90, EU:C:1992:219, paragraph 23).163The fourth ground of complaint must therefore be upheld and it must be declared that the Federal Republic of Germany, by introducing the infrastructure use charge and by providing, simultaneously, a relief from motor vehicle tax in an amount at least equivalent to that of the charge paid, to the benefit of the owners of vehicles registered in Germany, failed to fulfil its obligations under Article 92 TFEU.164It follows from all the foregoing that the Federal Republic of Germany, by introducing the infrastructure use charge for passenger vehicles and by providing, simultaneously, a relief from motor vehicle tax in an amount at least equivalent to the amount of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Articles 18, 34, 56 and 92 TFEU. Costs 165Under Article 138(1) of the Court’s Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(3) of those Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs unless, if it appears justified in the circumstances of the case, the Court orders that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.166In this case, both the Republic of Austria and the Federal Republic of Germany applied for costs against the other party. Further, the Federal Republic of Germany failed on the first, third and fourth grounds of complaint relied on by the Republic of Austria, and the latter failed in its second ground of complaint.167In the light of the foregoing, the Federal Republic of Germany must be ordered to pay three quarters of the costs incurred by the Republic of Austria and it must be decided that, for the remainder, each party is to bear its own costs.168In accordance with Article 140(1) of those Rules of Procedure, under which Member States which have intervened in the proceedings are to bear their own costs, the Kingdom of the Netherlands and Kingdom of Denmark shall bear their own costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that the Federal Republic of Germany, by introducing the infrastructure use charge for passenger vehicles and by providing, simultaneously, a relief from motor vehicle tax in an amount at least equivalent to the amount of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Articles 18, 34, 56 and 92 TFEU; 2. Dismisses the action as to the remainder; 3. Orders the Federal Republic of Germany to pay three quarters of the costs incurred by the Republic of Austria and to bear its own costs; 4. Orders the Republic of Austria to bear one quarter of its own costs; 5. Orders the Kingdom of the Netherlands and the Kingdom of Denmark to bear their own costs. [Signatures]( *1 ) Language of the case: German.( i ) The wording of paragraph 40 of this judgment has been amended since it was first put online. | 029d3-dcacc28-4366 | EN |
Advocate General Hogan: EU law requires, for a product originating in a territory occupied by Israel since 1967, the indication of the geographical name of this territory and, where it is the case, the indication that the product comes from an Israeli settlement | 12 November 2019 ( *1 )(Reference for a preliminary ruling — Regulation (EU) No 1169/2011 — Provision of food information to consumers — Mandatory indication of the country of origin or place of provenance of a foodstuff where failure to indicate this might mislead the consumer — Requirement that foodstuffs originating in territories occupied by the State of Israel bear the indication of their territory of origin, accompanied, where those foodstuffs come from an Israeli settlement within that territory, by the indication of that provenance)In Case C‑363/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 30 May 2018, received at the Court on 4 June 2018, in the proceedings Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l’Économie et des Finances, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský (Rapporteur), D. Šváby, C. Lycourgos and N. Piçarra, Judges,Advocate General: G. Hogan,Registrar: V. Giacobbo‑Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 9 April 2019,after considering the observations submitted on behalf of:–Organisation juive européenne, by J. Buk Lament, avocate,Vignoble Psagot Ltd, by F.‑H. Briard, Y.‑A. Benizri and E. Weiss, avocats,the French Government, by D. Colas, B. Fodda, S. Horrenberger, L. Legrand, A.‑L. Desjonquères, C. Mosser and E. de Moustier, acting as Agents,Ireland, by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by S. Kingston, Barrister-at-law,the Netherlands Government, by M.K. Bulterman and P. Huurnink, acting as Agents,the Swedish Government, by A. Falk, C. Meyer‑Seitz and H. Shev, acting as Agents,the European Commission, by A. Bouquet, B. De Meester, F. Clotuche‑Duvieusart and K. Herbout‑Borczak, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).2The request has been made in proceedings between, on the one hand, Organisation juive européenne and Vignoble Psagot Ltd and, on the other hand, the ministre de l’Économie et des Finances (the French Minister for the Economy and Finance) in relation to the legality of a notice concerning the indication of origin of goods originating in the territories occupied by the State of Israel since June 1967. Legal context European Union law Legislation concerning foodstuffs 3Recitals 3, 4 and 29 of Regulation No 1169/2011 state:‘(3)In order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.(4)According to Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [OJ 2002 L 31, p. 1] it is a general principle of food law to provide a basis for consumers to make informed choices in relation to food they consume and to prevent any practices that may mislead the consumer.…(29)The indication of the country of origin or of the place of provenance of a food should be provided whenever its absence is likely to mislead consumers as to the true country of origin or place of provenance of that product. In all cases, the indication of country of origin or place of provenance should be provided in a manner which does not deceive the consumer …’4Article 1 of that regulation, entitled ‘Subject matter and scope’ provides, in paragraph 1:‘This Regulation provides the basis for the assurance of a high level of consumer protection in relation to food information, taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market.’5Article 2(2)(g) of Regulation No 1169/2011 provides that, for the purposes of that regulation, the ‘place of provenance’ means any place where a food is indicated to come from, and that is not the ‘country of origin’ as determined in accordance with Articles 23 to 26 of Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Community Customs Code’), before specifying that the name, business name or address of the food business operator on the label shall not constitute an indication of the country of origin or place of provenance of food. In addition, paragraph 3 of that article provides that the ‘country of origin’ of a food shall refer to the origin of a food as determined in accordance with Articles 23 to 26 of the Community Customs Code.6Article 3 of that regulation, entitled ‘General objectives’, provides, in paragraph 1:‘The provision of food information shall pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.’7Under Article 9 of Regulation No 1169/2011, entitled ‘List of mandatory particulars’:‘1. In accordance with Articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory:(i)the country of origin or place of provenance where provided for in Article 26;…’8Article 26 of that regulation, entitled ‘Country of origin or place of provenance’, provides, in paragraph 2:‘Indication of the country of origin or place of provenance shall be mandatory:(a)where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance; Customs legislation 9The Community Customs Code was repealed by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1 and corrigendum OJ 2013 L 287, p. 90; ‘the Union Customs Code’), the relevant provisions of which have been applicable since 1 May 2016, in accordance with Article 288(2) thereof.10Since that date, references to the Community Customs Code in other Union acts, such as Regulation No 1169/2011, must be construed as references to the corresponding provisions of the Union Customs Code, as is clear from Article 286(3) of the latter.11Article 60 of the Union Customs Code, which corresponds to Articles 23(1) and 24 of the Community Customs Code, provides:‘1. Goods wholly obtained in a single country or territory shall be regarded as having their origin in that country or territory.2. Goods the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture.’ The Commission Notice 12On 12 November 2015, the European Commission published, in the Official Journal of the European Union, a notice entitled ‘Interpretative Notice on indication of origin of goods from the territories occupied by [the State of] Israel since June 1967’ (OJ 2015 C 375, p. 4; ‘the Commission Notice’).13In paragraph 1 of that notice, the Commission states that ‘the European Union, in line with international law, does not recognise Israel’s sovereignty over the territories occupied by Israel since June 1967, namely the Golan Heights, the Gaza Strip and the West Bank, including East Jerusalem, and does not consider them to be part of Israel’s territory’.14In paragraph 2 of that notice, the Commission states that there is ‘a demand for clarity from consumers, economic operators and national authorities about existing Union legislation on origin information of products from Israeli-occupied territories’ and that ‘the aim is also to ensure the respect of Union positions and commitments in conformity with international law on the non-recognition by the Union of Israel’s sovereignty over the territories occupied by Israel since June 1967’.15In paragraph 3 of that notice, the Commission states that ‘this Notice does not create any new legislative rules’ and ‘reflects the Commission’s understanding of the relevant Union legislation’, ‘without prejudice to … the interpretation which the Court of Justice may provide’.16After referring, in paragraphs 4 to 6 of its notice, to several provisions of EU legislation which require that the origin of various types of products be indicated on those products, the Commission states the following in paragraphs 7 to 10 of that notice:‘(7)Since the Golan Heights and the West Bank (including East Jerusalem) are not part of the Israeli territory according to international law, the indication “product from Israel” is considered to be incorrect and misleading in the sense of the referenced legislation.(8)To the extent that the indication of the origin is mandatory, another expression will have to be used, which takes into account how these territories are often known.(9)For products from Palestine that do not originate from settlements, an indication which does not mislead about the geographical origin, while corresponding to international practice, could be “product from the West Bank (Palestinian product)”, “product from Gaza” or “product from Palestine”.(10)For products from the West Bank or the Golan Heights that originate from settlements, an indication limited to “product from the Golan Heights” or “product from the West Bank” would not be acceptable. Even if they would designate the wider area or territory from which the product originates, the omission of the additional geographical information that the product comes from Israeli settlements would mislead the consumer as to the true origin of the product. In such cases the expression “Israeli settlement” or equivalent needs to be added, in brackets, for example. Therefore, expressions such as “product from the Golan Heights (Israeli settlement)” or “product from the West Bank (Israeli settlement)” could be used.’ French law 17The notice to economic operators concerning the indication of origin of goods originating in the territories occupied by the State of Israel since June 1967 (‘Avis aux opérateurs économiques relatifs à l’indication de l’origine des marchandises issues des territoires occupés par [l’État d’]Israël depuis juin 1967’), published by the French Minister for the Economy and Finance on 24 November 2016 (JORF 2016, No 273, text No 81; ‘the Ministerial Notice’), reads as follows:‘Regulation [No 1169/2011] provides that the labelling particulars must be fair. They must not risk misleading the consumer, particularly as to origin of the products. Foodstuffs from the territories occupied by Israel must therefore be labelled to reflect this origin.Consequently, the [Direction générale de la Concurrence, de la consommation et de la répression des fraudes (Directorate-General for Competition, Consumer Affairs and Fraud Control) (DGCCRF) of the French Ministry of the Economy and Finance] draws the attention of operators to [the Commission Notice].In particular, it specifies that under international law the Golan Heights and the West Bank, including East Jerusalem, are not part of Israel. Consequently, in order not to mislead the consumer, the labelling of food products must accurately indicate the exact origin of the products, whether their indication is mandatory under Community rules or voluntarily affixed by the operator.For products from the West Bank or the Golan Heights which originate in settlements, an indication limited to “product originating in the Golan Heights” or “product originating in the West Bank” is not acceptable. Although these terms do refer to the wider area or territory in which the product originates, the omission of the additional geographical information that the product originates from Israeli settlements is likely to mislead the consumer as to the true origin of the product. In such cases, it is necessary to add, in brackets, the term “Israeli settlement” or equivalent terms. Thus, terms such as “product originating in the Golan Heights (Israeli settlement)” or “product originating in the West Bank (Israeli settlement)” may be used.’ The disputes in the main proceedings and the questions referred for a preliminary ruling 18By two applications lodged on 24 and 25 January 2017, Organisation juive européenne and Vignoble Psagot each brought an action before the Conseil d’État (Council of State, France) seeking the annulment of the Ministerial Notice. In support of their respective claims, they both relied on various pleas in law alleging, inter alia, that that notice did not take into account Regulation No 1169/2011.19The Conseil d’État (Council of State) considered, in essence, that the questions raised by the examination of the pleas alleging that the Ministerial Notice disregarded Regulation No 1169/2011 were decisive for the outcome of the two disputes pending before it and that they raised serious difficulties.20In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does EU law and in particular Regulation No 1169/2011, where indication of the origin of a product falling within the scope of that regulation is mandatory, require, for a product from a territory occupied by the State of Israel since 1967, an indication of that territory and an indication that the product comes from an Israeli settlement if that is the case?(2)If not, do the provisions of the regulation, in particular those in Chapter VI thereof, allow a Member State to require those indications?’ Consideration of the questions referred The first question 21By its first question, the national court asks, in essence, whether Article 9(1)(i) of Regulation No 1169/2011, read in conjunction with Article 26(2)(a) of that regulation, must be interpreted as meaning that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from an Israeli settlement within that territory, the indication of that provenance.22In that respect, it should be noted, first, that it follows from Article 9(1)(i) of Regulation No 1169/2011 that the indication of the country of origin or the place of provenance of a food is mandatory where provided for in Article 26 of that regulation.23Article 26(2)(a) provides that that indication is mandatory where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of a food, in particular if the information accompanying the food or the label as a whole would otherwise imply that the food has a different country of origin or place of provenance.24In addition, recital 29 of Regulation No 1169/2011, in the light of which that provision must be read, states that, in all cases, an indication of origin or provenance should not deceive consumers.25It follows that the country of origin or the place of provenance of a foodstuff must be indicated where failure to indicate this might mislead consumers into believing that that foodstuff has a country of origin or a place of provenance different from its true country of origin or place of provenance. Furthermore, where the origin or provenance is indicated on that foodstuff, it must not be deceptive.26Secondly, the concept of ‘country of origin’ in Article 26(2)(a) of Regulation No 1169/2011 is defined in Article 2(3) of that regulation by reference to the Community Customs Code, which was succeeded by the Union Customs Code, as indicated in paragraph 9 above.27Under Article 60 of the Union Customs Code, goods which have either been wholly obtained in a particular ‘country’ or ‘territory’ or have undergone their last substantial processing or working in that country or territory are to be regarded as having their origin in that country or territory.28As regards the term ‘country’, it should be noted that it is used numerous times in the TEU and the TFEU as a synonym for the term ‘State’. Therefore, in order to ensure the consistent interpretation of EU law, the same meaning should be given to that term in the Union Customs Code and in Regulation No 1169/2011.29In addition, the notion of ‘State’ must itself be understood as referring to a sovereign entity exercising, within its geographical boundaries, the full range of powers recognised by international law (see, to that effect, judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 95).30As regards the term ‘territory’, it follows from the alternative nature of the wording in Article 60 of the Union Customs Code that that term refers to entities other than ‘countries’ and, therefore, other than ‘States’.31As the Court has already held, such entities include, inter alia, geographic spaces which, whilst being under the jurisdiction or the international responsibility of a State, nevertheless have a separate and distinct status from that State under international law (see, to that effect, judgments of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraphs 92 and 95, and of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 62 to 64).32In the light of the content of Article 60 of the Union Customs Code, the obligation laid down in Article 26(2) of Regulation No 1169/2011 to indicate the country of origin of a foodstuff, where failure to indicate this might mislead the consumer, thus applies not only to foodstuffs originating in ‘countries’, as described in paragraphs 28 and 29 above, but also to those originating in ‘territories’, as referred to in paragraph 31 above.33In the present case, the referring court states that the foodstuffs at issue in the main proceedings originate in ‘territories occupied by the State of Israel since 1967’ and, more specifically, as stated in the Ministerial Notice, in the West Bank, including East Jerusalem, and the Golan Heights.34Under the rules of international humanitarian law, these territories are subject to a limited jurisdiction of the State of Israel, as an occupying power, while each has its own international status distinct from that of that State.35The West Bank is a territory whose people, namely the Palestinian people, enjoy the right to self-determination, as noted by the International Court of Justice in its Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Reports 2004, p. 136, paragraphs 118 and 149). The Golan Heights form part of the territory of a State other than the State of Israel, namely the Syrian Arab Republic.36In the light of the foregoing, it must be held that displaying, on foodstuffs such as those at issue in the main proceedings, the indication that the State of Israel is their ‘country of origin’, when those foodstuffs actually originate in one of the territories referred to in paragraph 33 above, would be liable to deceive consumers.37In addition, in order to prevent consumers being misled as to the fact that the State of Israel is present in those territories as an occupying power and not as a sovereign entity within the meaning of paragraph 29 above, it appears necessary to inform them that those foodstuffs do not originate in that State.38Consequently, the indication of the territory of origin of foodstuffs such as those at issue in the main proceedings cannot be omitted and must therefore be regarded as mandatory under Articles 9 and 26 of Regulation No 1169/2011.39Thirdly and lastly, the concept of ‘place of provenance’ in Article 26(2)(a) of Regulation No 1169/2011 refers — according to the first sentence of Article 2(2)(g) of that regulation — to the place from which a food comes, but which is not the ‘country of origin’ of that food. The latter provision specifies, however, that the indication of the name, business name or address of the producer cannot act as an indication of the provenance of that foodstuff.40Moreover, in view of the considerations in paragraphs 26 to 32 above, a place of provenance likewise cannot correspond to the ‘territory of origin’ of a foodstuff.41In view of these elements, the concept of ‘place of provenance’ must be understood as referring to any specific geographical area within the country or territory of origin of a foodstuff, with the exception of a producer’s address.42In the present case, the question raised by the national court involves, first, determining whether Regulation No 1169/2011 must be interpreted as meaning that the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the territories referred to in paragraph 33 above may be regarded as an indication of the place of provenance within the meaning of that regulation.43The term ‘settlement’, because of its generic nature, is likely to refer not to a single place, but to a number of localities. Moreover, that term, in its usual sense, has a demographic dimension beyond its geographical meaning, since it refers to a population of foreign origin.44However, these factors do not prevent the term ‘settlement’ from contributing to the designation of a ‘place of provenance’ within the meaning of Regulation No 1169/2011, provided that, in a given case, it refers to a specific geographical area, as defined in paragraph 41 above.45It follows, in the present case, that the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the territories referred to in paragraph 33 above may be regarded as an indication of ‘place of provenance’ within the meaning of Article 26(2)(a) of Regulation No 1169/2011.46In those circumstances, it must be determined, secondly, whether the indication ‘Israeli settlement’ is mandatory, in the case of foodstuffs such as those at issue in the main proceedings. More specifically, since, as follows from paragraph 38 above, such foodstuffs must bear the indication of their territory of origin, the Court must determine whether they must also bear the indication ‘Israeli settlement’.47As stated in paragraph 25 above, it is necessary, for that purpose, to verify whether the omission of that indication, with the result that only the territory of origin is mentioned, might mislead consumers as to the true place of provenance of the foodstuffs concerned.48In that regard, it should be noted that the settlements established in some of the territories occupied by the State of Israel are characterised by the fact that they give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law, as codified in the sixth paragraph of Article 49 of the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949 (United Nations Treaty Series, vol. 75, No 973, p. 287), as noted by the International Court of Justice, with respect to the Occupied Palestinian Territory, in its Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Reports 2004, p. 136, paragraph 120). Moreover, that policy has been repeatedly condemned by the United Nations Security Council, as the Advocate General noted in points 53 and 54 of his Opinion, and by the European Union itself. In that context, it should be underlined that, in accordance with Article 3(5) TEU, the European Union is to contribute to the strict observance of international law, including the principles of the United Nations Charter.49It should be pointed out that, if a foodstuff from an Israeli settlement bore the indication of one of the territories referred to in paragraph 33 above, without however mentioning that place of provenance, consumers could be led to believe that it comes, in the case of the West Bank, from a Palestinian producer or, in the case of the Golan Heights, from a Syrian producer.50Consumers cannot be expected to guess, in the absence of any information capable of enlightening them in that respect, that that foodstuff comes from a locality or a set of localities constituting a settlement established in one of those territories in breach of the rules of international humanitarian law.51To that extent, the omission of the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the territories referred to in paragraph 33 above is likely to mislead consumers, by suggesting that that food has a place of provenance other than its true place of provenance.52That conclusion is supported by the objective of Regulation No 1169/2011, which is, as stated in Article 1(1) thereof, to ensure a high level of consumer protection in relation to food information, taking into account the differences in perception of consumers.53It follows from Article 3(1) of Regulation No 1169/2011, and from recitals 3 and 4 of that regulation, in the light of which that provision must be read, that the provision of information to consumers must enable them to make informed choices, with particular regard to health, economic, environmental, social and ethical considerations.54However, given the non-exhaustive nature of this list, it should be emphasised that other types of considerations, such as those relating to the observance of international law, may also be relevant in that context.55In the present case, it must be acknowledged — as the Advocate General noted, in essence, in points 51 and 52 of his Opinion — that consumers’ purchasing decisions may be informed by considerations relating to the fact that the foodstuffs in question in the main proceedings come from settlements established in breach of the rules of international humanitarian law.56In addition, the fact that a foodstuff comes from a settlement established in breach of the rules of international humanitarian law may be the subject of ethical assessments capable of influencing consumers’ purchasing decisions, particularly since some of those rules constitute fundamental rules of international law (Advisory Opinion of the International Court of Justice of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, paragraphs 155 to 159).57Thus, although Articles 9(1)(i) and 26(2)(a) of Regulation No 1169/2011 refer to the indication of the country of origin ‘or’ the place of provenance, those provisions require, in a situation such as that at issue in the main proceedings, both the indication that a foodstuff originates in one of the territories referred to in paragraph 33 above and the indication that it comes from an ‘Israeli settlement’, where that foodstuff comes from a settlement within one of those territories, since the omission of that second indication is liable to mislead consumers as to the place of provenance of that foodstuff.58In the light of all the foregoing considerations, the answer to the first question must be that Article 9(1)(i) of Regulation No 1169/2011, read in conjunction with Article 26(2)(a) of that regulation, must be interpreted as meaning that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance. The second question 59In the light of the answer given to the first question, there is no need to answer the second question. Costs 60Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 9(1)(i) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, read in conjunction with Article 26(2)(a) of that regulation, must be interpreted as meaning that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance. [Signatures]( *1 ) Language of the case: French. | c50f8-624fa12-40fc | EN |
According to Advocate General Szpunar, Facebook can be ordered to seek and identify all comments identical to a defamatory comment that has been found to be illegal, and equivalent comments in so far as the latter originate from the same user | 3 October 2019 ( *1 )(Reference for a preliminary ruling — Information society — Free movement of services — Directive 2000/31/EC — Liability of intermediary service providers — Article 14(1) and (3) — Hosting services provider — Possibility of requiring the service provider to terminate or prevent an infringement — Article 18(1) — Personal, material and territorial limits on the scope of an injunction — Article 15(1) — No general obligation to monitor)In Case C‑18/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 25 October 2017, received at the Court on 10 January 2018, in the proceedings Eva Glawischnig-Piesczek v Facebook Ireland Limited, THE COURT (Third Chamber),composed of A. Prechal, President of the Chamber, F. Biltgen, J. Malenovský (Rapporteur), C.G. Fernlund and L.S. Rossi, Judges,Advocate General: M. Szpunar,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 13 February 2019,after considering the observations submitted on behalf of:–Ms Glawischnig-Piesczek, by M. Windhager and W. Niklfeld, Rechtsanwälte,Facebook Ireland Limited, by G. Kresbach, K. Struckmann and A. Tauchen, Rechtsanwälte,the Austrian Government, by G. Hesse, G. Kunnert and A. Jurgutyte-Ruez, acting as Agents,the Latvian Government, by I. Kucina, E. Petrocka-Petrovska and V. Soņeca, acting as Agents,the Portuguese Government, by L. Inez Fernandes and M. Figueiredo, acting as Agents, and T. Rendas, Legal Adviser.the Finnish Government, by J. Heliskoski, acting as Agent,the European Commission, by G. Braun, F. Wilman, S.L. Kalėda, and P. Costa de Oliveira, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 June 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).2The request has been made in proceedings between Ms Eva Glawischnig-Piesczek and Facebook Ireland Limited whose registered address is in Ireland, concerning the publication on the page of a hosted user on the social network Facebook of a message containing statements harmful to the reputation of Ms Glawischnig-Piesczek. Legal context EU law 3Recitals 6, 7, 9, 10, 40, 41, 45 to 48, 52, 58 and 60 of Directive 2000/31 state:‘(6)… by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty.(7)In order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market.…(9)The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, [signed in Rome on 4 November 1950,] which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.(10)In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market; where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as electronic commerce is concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular the protection of minors and human dignity, consumer protection and the protection of public health; …(40)Both existing and emerging disparities in Member States’ legislation and case-law concerning liability of service providers acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development of cross-border services and producing distortions of competition; service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities; this Directive should constitute the appropriate basis for the development of rapid and reliable procedures for removing and disabling access to illegal information; …(41)This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based.(45)The limitations of the liability of intermediary service providers established in this directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.(46)In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.(47)Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.(48)This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.(52)The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means.(58)This Directive should not apply to services supplied by service providers established in a third country; in view of the global dimension of electronic commerce, it is, however, appropriate to ensure that the Community rules are consistent with international rules; this Directive is without prejudice to the results of discussions within international organisations (amongst others WTO, OECD, Uncitral) on legal issues.(60)In order to allow the unhampered development of electronic commerce, the legal framework must be clear and simple, predictable and consistent with the rules applicable at international level so that it does not adversely affect the competitiveness of European industry or impede innovation in that sector.’4Article 14 of Directive 2000/31, entitled ‘Hosting’, states:‘1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:(a)the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;or(b)the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.’5Article 15(1) of that directive provides:‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’6Article 18(1) of that directive provides:‘Member States shall ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.’ Austrian law 7In accordance with Paragraph 1330(1) of the Allgemeines Bürgerliches Gesetzbuch (General Civil Code), anyone who has sustained actual harm or loss of profit owing to damage to his reputation is entitled to claim compensation. Under subparagraph 2 of that paragraph, the same is to apply when a person reports facts prejudicial to the reputation, material situation and future prospects of a third party which he knew or ought to have known to be inaccurate. In that case, a denial and publication of that denial may be required.8According to Paragraph 78(1) of the Urheberrechtsgesetz (Law on copyright), images representing a person must not be displayed publicly or disseminated in another way that makes them accessible to the public if such publication or dissemination harms the legitimate interests of the person concerned or, where that person has deceased without having authorised or ordered such publication, the legitimate interests of a close relative.9Under Paragraph 18(1) of the E-Commerce-Gesetz (Law on electronic commerce), hosting services providers are under no general obligation to monitor the information which they store, transmit or make available, or actively to seek facts or circumstances indicating illegal activity. The dispute in the main proceedings and the questions referred for a preliminary ruling 10Ms Eva Glawischnig-Piesczek was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party ‘die Grünen’ (The Greens) and federal spokesperson for that party.11Facebook Ireland operates a global social media platform (‘Facebook Service’) for users located outside the United States of America and Canada.12On 3 April 2016, a Facebook Service user shared on that user’s personal page an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’, which had the effect of generating on that page a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of Ms Glawischnig-Piesczek. That user also published, in connection with that article, a comment which the referring court found to be harmful to the reputation of the applicant in the main proceedings, and which insulted and defamed her. This post could be accessed by any Facebook user.13By letter of 7 July 2016, Ms Glawischnig-Piesczek, inter alia, asked Facebook Ireland to delete that comment.14Because Facebook Ireland did not withdraw the comment in question, Ms Glawischnig-Piesczek brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) which, by interim order of 7 December 2016, directed Facebook Ireland, with immediate effect and until the proceedings relating to the action for a prohibitory injunction have been finally concluded, to cease and desist from publishing and/or disseminating photographs showing the applicant [in the main proceedings] if the accompanying text contained the assertions, verbatim and/or using words having an equivalent meaning as that of the comment referred to in paragraph 12 above.15Facebook Ireland disabled access in Austria to the content initially published.16On appeal, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld the order made at first instance as regards the identical allegations. However, it also held that the dissemination of allegations of equivalent content had to cease only as regards those brought to the knowledge of Facebook Ireland by the applicant in the main proceedings, by third parties or otherwise.17The Handelsgericht Wien (Commercial Court, Vienna) and the Oberlandesgericht Wien (Higher Regional Court, Vienna) based their decisions on Paragraph 78 of the Law on copyright and Paragraph 1330 of the General Civil Code, on the ground, inter alia, that the published comment contained statements which were excessively harmful to the reputation of Ms Glawischnig-Piesczek and, in addition, gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard.18Each of the parties in the main proceedings lodged appeals on a point of law at the Oberster Gerichtshof (Supreme Court, Austria).19Having been called on to adjudicate whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended to statements with identical wording and/or having equivalent content of which it is not aware, the Oberster Gerichtshof (Supreme Court) states that, in accordance with its own case-law, such an obligation must be considered to be proportionate where the host provider was already aware that the interests of the person concerned had been harmed on at least one occasion as a result of a user’s post and the risk that other infringements may be committed is thus demonstrated.20However, considering that the dispute before it raises questions of the interpretation of EU law, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:worldwide;in the relevant Member State;of the relevant user worldwide;of the relevant user in the relevant Member State?(2)In so far as Question 1 is answered in the negative: does this also apply in each case for information with an equivalent meaning?(3)Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance?’ Consideration of the questions referred The first and second questions 21By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it precludes a court of a Member State from:ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be illegal, or to block access to that information, irrespective of who requested the storage of that information;ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information, andextending the effects of that injunction worldwide.22As a preliminary point, it is common ground that Facebook Ireland provides the services of a host provider for the purposes of Article 14 of Directive 2000/31.23In that respect, it should be recalled that Article 14(1) of that directive is intended to exempt the host provider from liability where it satisfies one of the two conditions listed in that provision, that is to say, not having knowledge of the illegal activity or information, or acting expeditiously to remove or to disable access to that information as soon as it becomes aware of it.24In addition, it is apparent from Article 14(3) of Directive 2000/31, read in conjunction with recital 45, that that exemption is without prejudice to the power of the national courts or administrative authorities to require the host provider concerned to terminate or prevent an infringement, including by removing the illegal information or by disabling access to it.25It follows that, as the Advocate General stated in point 32 of his Opinion, a host provider may be the addressee of injunctions adopted on the basis of the national law of a Member State, even if it satisfies one of the alternate conditions set out in Article 14(1) of Directive 2000/31, that is to say, even in the event that it is not considered to be liable.26Furthermore, Article 18 of Directive 2000/31, which is part of Chapter III of that directive entitled ‘Implementation’, provides in paragraph 1 that Member States must ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.27In the present case, as follows from paragraph 13 above and from the actual wording of the questions raised, Facebook Ireland, first of all, did have knowledge of the illegal information at issue. Next, that company did not act expeditiously to remove or to disable access to that information, as laid down in Article 14(1) of Directive 2000/31. In the end, the applicant in the main proceedings brought an action before a national court for an injunction like the one referred to in Article 18.28Recital 52 of that directive states that the specific character arising from the fact that the damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent, and also by the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, led the legislature of the European Union to request Member States to ensure that appropriate court actions are available.29Thus, when implementing Article 18(1) of Directive 2000/31, Member States have a particularly broad discretion in relation to the actions and procedures for taking the necessary measures.30Moreover, given that those measures, according to a number of linguistic versions of that provision, including the English, Spanish and French-language versions, are expressly intended to terminate ‘any’ alleged infringement and to prevent ‘any’ further impairment of the interests involved, no limitation on their scope can, in principle, be presumed for the purposes of their implementation. That interpretation is not called into question by the fact that other linguistic versions of that provision, including the German version, provide that those measures are intended to terminate ‘an alleged infringement’ and to prevent ‘further impairment of the interests involved’.31Article 15(1) of Directive 2000/31 states that Member States must not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity.32It is by taking all of those provisions into consideration that the Court will reply to the questions raised by the referring court.33In the first place, the referring court asks, in essence, whether Article 15(1) of Directive 2000/31 precludes a court of a Member State from ordering a host provider to remove or block access to information which it stores, the content of which is identical to the content of information which was previously declared to be illegal.34In that regard, although Article 15(1) prohibits Member States from imposing on host providers a general obligation to monitor information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity, as is clear from recital 47 of that directive, such a prohibition does not concern the monitoring obligations ‘in a specific case’.35Such a specific case may, in particular, be found, as in the main proceedings, in a particular piece of information stored by the host provider concerned at the request of a certain user of its social network, the content of which was examined and assessed by a court having jurisdiction in the Member State, which, following its assessment, declared it to be illegal.36Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.37In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.38In the second place, the referring court asks, in essence, whether Article 15(1) of Directive 2000/31 precludes a court of a Member State from ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information.39It is apparent from the information set out in the order for reference that, in using the words ‘information with an equivalent meaning’, the referring court intends to refer to information conveying a message the content of which remains essentially unchanged and therefore diverges very little from the content which gave rise to the finding of illegality.40In that regard, it should be made clear that the illegality of the content of information does not in itself stem from the use of certain terms combined in a certain way, but from the fact that the message conveyed by that content is held to be illegal, when, as in the present case, it concerns defamatory statements made against a specific person.41It follows therefore that, in order for an injunction which is intended to bring an end to an illegal act and to prevent it being repeated, in addition to any further impairment of the interests involved, to be capable of achieving those objectives effectively, that injunction must be able to extend to information, the content of which, whilst essentially conveying the same message, is worded slightly differently, because of the words used or their combination, compared with the information whose content was declared to be illegal. Otherwise, as the referring court made clear, the effects of such an injunction could easily be circumvented by the storing of messages which are scarcely different from those which were previously declared to be illegal, which could result in the person concerned having to initiate multiple proceedings in order to bring an end to the conduct of which he is a victim.42However, it must also be observed that, in this context, as is apparent from Article 15(1) of Directive 2000/31 and as was observed in paragraph 34 above, a court of a Member State may not, first, grant an injunction against a host provider requiring it to monitor generally the information which it stores or, second, require that host provider actively to seek facts or circumstances underlying the illegal content.43In that regard, it should be pointed out in particular that, as is apparent from recital 41 of Directive 2000/31, in adopting that directive, the EU legislature wished to strike a balance between the different interests at stake.44Thus, Article 15(1) of Directive 2000/31 implies that the objective of an injunction such as the one referred to in Article 18(1) of that directive, read in conjunction with recital 41, consisting, inter alia, of effectively protecting a person’s reputation and honour, may not be pursued by imposing an excessive obligation on the host provider.45In light of the foregoing, it is important that the equivalent information referred to in paragraph 41 above contains specific elements which are properly identified in the injunction, such as the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal. Differences in the wording of that equivalent content, compared with the content which was declared to be illegal, must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.46In those circumstances, an obligation such as the one described in paragraphs 41 and 45 above, on the one hand — in so far as it also extends to information with equivalent content — appears to be sufficiently effective for ensuring that the person targeted by the defamatory statements is protected. On the other hand, that protection is not provided by means of an excessive obligation being imposed on the host provider, in so far as the monitoring of and search for information which it requires are limited to information containing the elements specified in the injunction, and its defamatory content of an equivalent nature does not require the host provider to carry out an independent assessment, since the latter has recourse to automated search tools and technologies.47Thus, such an injunction specifically does not impose on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.48In the third place, although the referring court does not provide any explanations in that regard in the grounds for its order for reference, the wording of the questions which it addressed to the Court suggests that its doubts also concern the issue whether Article 15(1) of Directive 2000/31 precludes injunctions such as those referred to in paragraphs 37 and 46 above from being able to produce effects which extend worldwide.49In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive.50Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide.51However, it is apparent from recitals 58 and 60 of that directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level.52It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules.53In the light of all the foregoing, the answer to the first and second questions is that Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from:ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, orordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. The third question 54In the light of the reply given to the first and second questions, it is not necessary to consider the third question referred. Costs 55Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from: ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information; ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, and ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. [Signatures]( *1 ) Language of the case: German. | d6392-17298ed-41e2 | EN |
German public prosecutor’s offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing a European arrest warrant | 27 May 2019 ( *1 )(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 6(1) — Concept of ‘issuing judicial authority’ — European arrest warrant issued by a public prosecutor’s office of a Member State — Legal position — Whether subordinate to a body of the executive — Power of a Ministry of Justice to issue an instruction in a specific case — No guarantee of independence)In Joined Cases C‑508/18 and C‑82/19 PPU,REQUESTS for a preliminary ruling under Article 267 TFEU from the Supreme Court (Ireland), made by decision of 31 July 2018, received at the Court on 6 August 2018, and from the High Court (Ireland), made by decision of 4 February 2019, received at the Court on 5 February 2019, in proceedings relating to the execution of European arrest warrants issued in respect of OG (C‑508/18), PI (C‑82/19 PPU),THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, A. Prechal, M. Vilaras, T. von Danwitz, C. Toader, F. Biltgen, K. Jürimäe (Rapporteur) and C. Lycourgos, Presidents of Chambers, L. Bay Larsen, M. Safjan, D. Šváby, S. Rodin and I. Jarukaitis, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: L. Hewlett, Principal Administrator,having regard to the High Court’s request of 4 February 2019, received at the Court on 5 February 2019, that the reference for a preliminary ruling in Case C‑82/19 PPU be dealt with under the urgent procedure, pursuant to Article 107 of the Rules of Procedure of the Court,having regard to the decision of 14 February 2019 of the Fourth Chamber to grant that request,having regard to the written procedure and further to the hearing on 26 March 2019,after considering the observations submitted on behalf of:–OG, by E. Lawlor, Barrister-at-Law, and R. Lacey, Senior Counsel, instructed by M. Moran, Solicitor,PI, by D. Redmond, Barrister, and R. Munro, Senior Counsel, instructed by E. King, Solicitor,the Minister for Justice and Equality, by J. Quaney, M. Browne, G. Hodge and A. Joyce, acting as Agents, and by B.M. Ward, A. Hanrahan, J. Benson, Barristers-at-Law, and P. Caroll, Senior Counsel,the Danish Government, by P.Z.L. Ngo and J. Nymann-Lindegren, acting as Agents,the German Government, initially by T. Henze, J. Möller, M. Hellmann and A. Berg, acting as Agents, and subsequently by M. Hellmann, J. Möller and A. Berg, acting as Agents,the French Government, by D. Colas, D. Dubois and E. de Moustier, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and by S. Faraci, avvocato dello Stato,the Lithuanian Government, by V. Vasiliauskienė, J. Prasauskienė, G. Taluntytė and R. Krasuckaitė, acting as Agents,the Hungarian Government, by M.Z. Fehér and Z. Wagner, acting as Agents,the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,the Austrian Government, by G. Hesse, K. Ibili and J. Schmoll, acting as Agents,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by R. Troosters, J. Tomkin and S. Grünheid, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,gives the following Judgment 1These requests for a preliminary ruling concern the interpretation of Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).2The requests have been made in proceedings in Ireland concerning the execution of two European arrest warrants issued respectively in Case C‑508/18 on 13 May 2016 by the Staatsanwaltschaft bei dem Landgericht Lübeck (Office of the Public Prosecutor at the Regional Court, Lübeck, Germany) (‘the Public Prosecutor’s Office in Lübeck’) for the purposes of the prosecution of OG and in Case C‑82/19 PPU on 15 March 2018 by the Staatsanwaltschaft Zwickau (Office of the Public Prosecutor, Zwickau, Germany) (‘the Public Prosecutor’s Office in Zwickau’) for the purposes of the prosecution of PI. Legal context European Union law 3Recitals 5, 6, 8 and 10 of Framework Decision 2002/584 read as follows:‘(5)The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.(6)The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.…(8)Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender....(10)The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [EU], determined by the Council pursuant to Article 7(1) [EU] with the consequences set out in Article 7(2) [EU].’4Article 1 of Framework Decision 2002/584, under the heading ‘Definition of the European arrest warrant and obligation to execute it’, provides:‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [EU].’5Articles 3, 4 and 4a of Framework Decision 2002/584 list the grounds for mandatory and optional non-execution of the European arrest warrant. Article 5 of the framework decision sets out guarantees to be given by the issuing Member State in particular cases.6Under Article 6 of Framework Decision 2002/584, under the heading ‘Determination of the competent judicial authorities’:‘1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.’ Irish law 7The European Arrest Warrant Act 2003, in the version applicable to the cases in the main proceedings (‘the EAW Act’), transposes Framework Decision 2002/584 into Irish law. The first paragraph of section 2(1) of the EAW Act provides:‘“judicial authority” means the judge, magistrate or other person authorised under the law of the Member State concerned to perform functions the same as or similar to those performed under section 33 by a court in the State.’8Section 20 of the EAW Act provides:‘(1) In proceedings to which this Act applies the High Court [(Ireland)] may, if of the opinion that the documentation or information provided to it is not sufficient to enable it to perform its functions under this Act, require the issuing judicial authority or the issuing state, as may be appropriate, to provide it with such additional documentation or information as it may specify, within such period as it may specify.(2) The Central Authority in the State may, if of the opinion that the documentation or information provided to it under this Act is not sufficient to enable it or the High Court to perform functions under this Act, require the issuing judicial authority or the issuing state, as may be appropriate, to provide it with such additional documentation or information as it may specify, within such period as it may specify. …’ German law 9Under Paragraph 146 of the Gerichtsverfassungsgesetz (Law on the Judicial System; ‘the GVG’):‘The officials of the public prosecutor’s office must comply with service-related instructions of their superiors.’10Paragraph 147 of the GVG provides:‘The power of supervision and direction shall lie with:1. the Bundesminister der Justiz und für Verbraucherschutz [(Federal Minister for Justice and Consumer Protection)] in respect of the Federal Prosecutor General and the federal prosecutors;2. the Landesjustizverwaltung [(Land authority for the administration of justice)] in respect of all the officials of the public prosecutor’s office of the Land concerned;3. the highest-ranking official of the public prosecutor’s office at the Higher Regional Courts and the Regional Courts in respect of all the officials of the public prosecutor’s office of the given court’s area of jurisdiction.’ The disputes in the main proceedings and the questions referred for a preliminary ruling Case C‑508/18 11OG is a Lithuanian national residing in Ireland. On 13 May 2016 his surrender was sought pursuant to a European arrest warrant issued by the Public Prosecutor’s Office in Lübeck for the prosecution of a criminal offence which OG allegedly committed in 1995 which that public prosecutor’s office identifies as ‘murder, grievous bodily injury’.12OG brought an action before the High Court challenging the validity of that European arrest warrant, on the ground, inter alia, that the Public Prosecutor’s Office in Lübeck is not a ‘judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584.13In support of that contention, OG relied on a legal opinion of a German lawyer which stated, inter alia, that under German law the public prosecutor’s office does not enjoy the autonomous or independent status of a court of law, but is subject to an administrative hierarchy headed by the Minister for Justice, so that there is a risk of political involvement in surrender proceedings. Furthermore, the public prosecutor’s office is not a judicial authority with competence to order detention or arrest of any person except in exceptional circumstances. Only a judge or court has those powers. It is the public prosecutor’s office which is responsible for executing a national arrest warrant issued by a judge or court, where appropriate, by issuing a European arrest warrant. Accordingly, no ‘judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, was involved in the issuing of the European arrest warrant in respect of OG.14In those circumstances, the High Court sought further information from the Public Prosecutor’s Office in Lübeck, via the Central Authority for Ireland, in relation to the evidence presented by OG as to whether that public prosecutor’s office is a ‘judicial authority’, having regard, in particular, to the judgments of 10 November 2016, Poltorak (C‑452/16 PPU, EU:C:2016:858), and of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860).15On 8 December 2016 the Public Prosecutor’s Office in Lübeck replied to that request and stated that under German law the public prosecutor’s office is a body within the criminal justice system (as are the national courts) which is responsible for the prosecution of criminal offences, and also participation in criminal proceedings. Its role is, inter alia, to ensure the legality, objectivity and proper conduct of investigations. The public prosecutor’s office prepares the ground for the exercise of judicial power and enforces judicial decisions. It has the right to initiate investigations, which the courts do not.16As regards its relationship to the Schleswig-Holsteinischer Minister für Justiz (Minister for Justice of the Land of Schleswig-Holstein, Germany), the Public Prosecutor’s Office in Lübeck stated that that minister has no power to issue instructions to it. It added that under national law only the Staatsanwaltschaft beim Schleswig-Holsteinischen Oberlandesgericht (Public Prosecutor General’s Office at the Higher Regional Court of the Land of Schleswig-Holstein, Germany) (‘the Public Prosecutor General’s Office’), at the head of the public prosecutor’s office of that Land, can issue instructions to the Leitender Oberstaatsanwalt der Staatsanwaltschaft Lübeck (Senior Public Prosecutor of the Public Prosecutor’s Office in Lübeck, Germany). In addition, the power to issue instructions is circumscribed by the Basic Law of the Federal Republic of Germany and by the principle of legality, which governs criminal proceedings, that principle being itself derived from the principle of the rule of law. Although that minister could, where relevant, exercise an ‘external’ power to issue instructions in respect of the Public Prosecutor General’s Office, he would be bound to comply with those principles. In addition, in the Land of Schleswig-Holstein, the minister is required to inform the President of the Landtag (State Parliament) whenever instructions have been issued to the Public Prosecutor General’s Office. In the present case, as regards OG, no instructions were issued by that minister to the Public Prosecutor General’s Office or by the Public Prosecutor General’s Office to the Public Prosecutor’s Office in Lübeck.17On 20 March 2017 the High Court rejected OG’s submission that the Public Prosecutor’s Office in Lübeck is not a ‘judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584. In an appeal brought before the Court of Appeal (Ireland), the judgment of the High Court was upheld.18The referring court, the Supreme Court (Ireland), granted leave to appeal against the judgment of the Court of Appeal.19On the evidence before it, the referring court is uncertain whether the Public Prosecutor’s Office in Lübeck meets the test of independence or the test of administering criminal justice in the sense required by the Court’s case-law resulting from the judgments of 29 June 2016, Kossowski (C‑486/14, EU:C:2016:483), of 10 November 2016, Poltorak (C‑452/16 PPU, EU:C:2016:858), of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860), and of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861), in order to be capable of being considered a ‘judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584.20According to that court, as regards the institutional status of the public prosecutor’s office in Germany, the Public Prosecutor’s Office in Lübeck appears to be subordinate to the authority and to the instructions of the executive. The referring court is therefore uncertain whether the principles identified in the abovementioned case-law can be met by such a public prosecutor’s office and whether the independence of the latter, in the case before the referring court, can be established solely on the ground that no direction or instruction was given by the executive in relation to the European arrest warrant issued in respect of OG.21In addition, the referring court states that, although the public prosecutor’s office in Germany has an essential role in relation to the administration of justice, its responsibilities are distinct from those of the courts or the judges. Thus, even if the independence test is met, it is unclear whether that public prosecutor’s office meets the test of administering justice or participating in the administration of justice in order that it may be classified as a ‘judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584.22In those circumstances the Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Is the independence from the executive of a public prosecutor to be decided in accordance with his position under the relevant national legal system? If not, what are the criteria according to which independence from the executive is to be decided?(2)Is a public prosecutor who, in accordance with national law, is subject to a possible direction or instruction either directly or indirectly from a Ministry of Justice, sufficiently independent of the executive to be considered a “judicial authority”, within the meaning of Article 6(1) of Framework Decision 2002/584?(3)If so, must the public prosecutor also be functionally independent of the executive and what are the criteria according to which functional independence is to be decided?(4)If independent of the executive, is a public prosecutor who is confined to initiating and conducting investigations and assuring that such investigations are conducted objectively and lawfully, the issuing of indictments, executing judicial decisions and conducting the prosecution of criminal offences, and does not issue national warrants and may not perform judicial functions a “judicial authority”, for the purposes of Article 6(1) of Framework Decision 2002/584?(5)Is the [Public Prosecutor’s Office in Lübeck] a “judicial authority” within the meaning of Article 6(1) of Framework Decision 2002/584?’ Case C‑82/19 PPU 23On 15 March 2018, PI, a Romanian national, was the subject of a European arrest warrant issued by the Public Prosecutor’s Office in Zwickau (Germany) for the prosecution of a criminal offence identified as ‘organised or armed robbery’. That arrest warrant was endorsed for execution by the referring court, the High Court, on 12 September 2018. PI was arrested on 15 October 2018 pursuant to that arrest warrant and has remained in custody since that date.24The referring court states that it is confronted with the same difficulties raised by the Supreme Court in Case C‑508/18.25PI objected to his surrender in execution of the European arrest warrant issued in respect of him on the ground, inter alia, that the Public Prosecutor’s Office in Zwickau is not a ‘judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, which is competent to issue such a European arrest warrant.26In support of that contention, PI relied on the same legal opinion referred to in paragraph 13 of the present judgment concerning the Public Prosecutor’s Office in Lübeck and on a legal opinion of the same lawyer as regards the Public Prosecutor’s Office in Zwickau.27In those circumstances, the referring court sought further information from the Public Prosecutor’s Office in Zwickau, via the Central Authority for Ireland, in relation to the evidence presented by PI as regards the status of that public prosecutor’s office.28In a response of 24 January 2019, the Public Prosecutor’s Office in Zwickau sent the referring court the national arrest warrant issued by the Amtsgericht Zwickau (Local Court, Zwickau, Germany) on which the European arrest warrant in respect of PI is based, and made clear that the national arrest warrant was issued by an independent judge. In addition, the Public Prosecutor’s Office in Zwickau stated that it was, in accordance with Article 6(1) of Framework Decision 2002/584, the competent authority for issuing a European arrest warrant.29A further request was sent to the Office of the Public Prosecutor’s Office in Zwickau asking whether it was adopting the same stance as that of the Public Prosecutor’s Office in Lübeck in Case C‑508/18. The Public Prosecutor’s Office in Zwickau replied on 31 January 2019 as follows:‘I refer to your message of 28 January 2019 and the enclosed documents of the [Public Prosecutor’s Office in Lübeck (Germany)]. With regard to the position of the [public prosecutor’s office] within the legal system of the Federal Republic of Germany, I share the opinion of the [Public Prosecutor’s Office in Lübeck]. I would like to add that the investigations by the [Public Prosecutor’s Office in Zwickau] [concerning the prosecuted] person are carried out independently and without any political interference. Neither the [Generalstaatsanwaltschaft Dresden (Public Prosecutor General in Dresden, Germany)] nor the [Justizminister des Freistaats Sachsen (Minister for Justice of the Free State of Saxony, Germany)] have issued any instructions at any time.’30In that context, the High Court seeks to ascertain, as does the Supreme Court in Case C‑508/18, what criteria a national court must apply in order to determine whether or not a public prosecutor’s office is a ‘judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584.31In those circumstances, the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:Is a public prosecutor who, in accordance with national law, is subject to a possible direction or instruction either directly or indirectly from a Ministry of Justice, sufficiently independent of the executive to be considered a “judicial authority” within the meaning of Article 6(1) of Framework Decision 2002/584?If independent of the executive, is a public prosecutor who is confined to initiating and conducting investigations and assuring that such investigations are conducted objectively and lawfully, the issuing of indictments, executing judicial decisions and conducting the prosecution of criminal offences, and does not issue national warrants and may not perform judicial functions a “judicial authority” for the purposes of Article 6(1) of Framework Decision 2002/584?Is the [Public Prosecutor’s Office in Zwickau] a “judicial authority” within the meaning of Article 6(1) of Framework Decision 2002/584?’ Procedure before the Court 32The referring court requested that Case C‑508/18 be dealt with pursuant to the expedited procedure under Article 105(1) of the Rules of Procedure of the Court.33That request was dismissed by order of the President of the Court of 20 September 2018, Minister for Justice and Equality (C‑508/18 and C‑509/18, not published, EU:C:2018:766).34By decision of the President of the Court, Case C‑508/18 was given priority over others.35The referring court requested that Case C‑82/19 PPU be dealt with pursuant to the urgent preliminary ruling procedure under Article 107 of the Rules of Procedure.36In support of that request, it relied on, inter alia, the fact that PI is at present in custody, pending his being actually surrendered to the German authorities.37It should be noted, in the first place, that the reference for a preliminary ruling in this case concerns the interpretation of Framework Decision 2002/584, which falls within the scope of the fields referred to in Title V of Part Three of the FEU Treaty on the area of freedom, security and justice. It may therefore be dealt with under the urgent preliminary ruling procedure.38In the second place, according to the case-law of the Court, it is appropriate to take into account the fact that the person concerned in the main proceedings is currently deprived of his liberty and that the question of whether he remains in custody depends on the outcome of the dispute in the main proceedings (see, to that effect, judgment of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraph 21 and the case-law cited). According to the explanations provided by the referring court, the detention measure to which PI is subject was ordered in the context of the execution of the European arrest warrant issued in respect of him.39In those circumstances, on 14 February 2019 the Fourth Chamber of the Court, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to accede to the referring court’s request that Case C‑82/19 PPU be dealt with under the urgent preliminary ruling procedure.40It was also decided to remit Case C‑82/19 PPU to the Court in order for it to be assigned to the Grand Chamber.41Given the connection between Cases C‑508/18 and C‑82/19 PPU, it is appropriate that they be joined for the purposes of the judgment. Consideration of the questions referred 42By their respective questions, which it is appropriate to consider together, the referring courts ask, in essence, whether the concept of an ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, must be interpreted as including the public prosecutors’ offices of a Member State which are responsible for the prosecution of criminal offences and are subordinate to a body of the executive of that Member State, such as a Minister for Justice, and may be subject, directly or indirectly, to directions or instructions in a specific case from that body in connection with the adoption of a decision to issue a European arrest warrant.43As a preliminary matter, it should be noted that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 36 and the case-law cited).44In particular, as far as concerns Framework Decision 2002/584, it is clear from recital 6 thereof that the European arrest warrant established by that framework decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition.45That principle has been applied in Article 1(2) of Framework Decision 2002/584, which lays down the rule that Member States are required to execute any European arrest warrant on the basis of that principle and in accordance with the provisions of that framework decision. Executing judicial authorities may therefore, in principle, refuse to execute such a European arrest warrant only on the grounds for non-execution exhaustively listed in Articles 3, 4 and 4a of the framework decision. Similarly, execution of the arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5. Accordingly, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 41 and the case-law cited).46However, the principle of mutual recognition proceeds from the assumption that only European arrest warrants, within the meaning of Article 1(1) of Framework Decision 2002/584, must be executed in accordance with the provisions of that decision. It follows from that article that such an arrest warrant is a ‘judicial decision’, which requires that it be issued by a ‘judicial authority’ within the meaning of Article 6(1) of that framework decision (see, to that effect, judgments of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraph 28, and of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 29).47Under Article 6(1) of Framework Decision 2002/584, the issuing judicial authority is to be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.48Although, in accordance with the principle of procedural autonomy, the Member States may designate, in their national law, the ‘judicial authority’ with the competence to issue a European arrest warrant, the meaning and scope of that term cannot be left to the assessment of each Member State (see, to that effect, judgments of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraphs 30 and 31, and of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraphs 31 and 32).49That term requires, throughout the European Union, an autonomous and uniform interpretation, which, in accordance with the settled case-law of the Court, must take into account the wording of Article 6(1) of Framework Decision 2002/584, its legislative scheme and the objective of that framework decision (see, to that effect, judgments of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraph 32, and of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 33).50In the first place, in that regard, it should be noted that the Court has previously held that the words ‘judicial authority’, contained in that provision, are not limited to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia, ministries or police services which are part of the executive (see, to that effect, judgments of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraphs 33 and 35, and of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraphs 34 and 36).51It follows that the concept of a ‘judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice in that Member State.52That interpretation is borne out, first, by the legislative scheme of Article 6(1) of Framework Decision 2002/584. In that regard, it must be stated that that framework decision is a measure governing judicial cooperation in criminal matters, which concerns mutual recognition not only of final judgments delivered by the criminal courts, but more broadly of decisions adopted by the judicial authorities of the Member States in criminal proceedings, including the phase of those proceedings relating to criminal prosecution.53Judicial cooperation in criminal matters, as provided for in Article 31 EU, which is the legal basis for Framework Decision 2002/584, referred, inter alia, to cooperation between judicial authorities of the Member States both in relation to proceedings and the enforcement of decisions.54The word ‘proceedings’, which should be understood in a broad sense, is capable of encompassing the entirety of criminal proceedings, namely the pre-trial phase, the trial itself and the enforcement of a final judgment delivered by a criminal court in respect of a person found guilty of a criminal offence.55That interpretation is supported by the wording of Article 82(1)(d) TFEU, which replaced Article 31 EU, and which now states that judicial cooperation in criminal matters in the Union covers cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.56Second, the above interpretation is also supported by the objective of Framework Decision 2002/584, which, as is clear from recital 5 thereof, is to establish a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.57Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or accused of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice, founded on the high level of trust which should exist between the Member States in accordance with the principle of mutual recognition (judgment of 22 December 2017, Ardic, C‑571/17 PPU, EU:C:2017:1026, paragraph 69 and the case-law cited).58The issuing of a European arrest warrant may thus have two distinct aims, as laid down in Article 1(1) of Framework Decision 2002/584. It may be issued either for the purposes of conducting a criminal prosecution in the issuing Member State or for the purposes of executing a custodial sentence or detention order in that Member State (see, to that effect, judgment of 21 October 2010, B., C‑306/09, EU:C:2010:626, paragraph 49).59Therefore, in so far as the European arrest warrant facilitates free movement of judicial decisions, prior to judgment, in relation to conducting a criminal prosecution, it must be held that those authorities which, under national law, are competent to adopt such decisions are capable of falling within the scope of the framework decision.60It follows from the considerations set out in paragraphs 50 to 59 of the present judgment that an authority, such as a public prosecutor’s office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court, must be regarded as participating in the administration of justice of the relevant Member State.61In the present case, it is clear from the information in the case file before the Court that, in Germany, public prosecutors’ offices have an essential role in the conduct of criminal proceedings.62In that regard, in its observations to the Court, the German Government stated that, in accordance with the provisions of German law governing criminal proceedings, the public prosecutors’ offices have the power to issue an indictment, such that only they are competent to initiate criminal prosecutions. In addition, by virtue of the principle of legality, the public prosecutor’s office is, in principle, required to open an investigation in respect of any person suspected of having committed a criminal offence. Thus, it follows from that information that, in general, the part played by the public prosecutor’s office is to prepare the ground, in relation to criminal proceedings, for the exercise of judicial power by the criminal courts of that Member State.63In those circumstances, such public prosecutors’ offices are capable of being regarded as participating in the administration of criminal justice in the Member State in question.64In the second place, in the light of the requirement that courts must be independent, the referring courts harbour doubts as to whether the public prosecutors’ offices at issue in the main proceedings satisfy that requirement, in so far as they belong to a hierarchical structure subject to the Minister for Justice of the Land in question and in which that minister may exercise a power of supervision and direction, or even instruction, in relation to bodies, such as those public prosecutors’ offices, which are subordinate to him.65In that regard, it must be borne in mind that Framework Decision 2002/584 aims to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of cooperation between sovereign States — which involves the intervention and assessment of the executive — in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice (see, to that effect, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 41).66In that context, where a European arrest warrant is issued with a view to the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution, that person must have already had the benefit, at the first stage of the proceedings, of procedural safeguards and fundamental rights, the protection of which it is the task of the judicial authorities of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant (judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 55).67The European arrest warrant system therefore entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person, since, in addition to the judicial protection provided at the first level, at which a national decision, such as a national arrest warrant, is adopted, there is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision (judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 56).68As regards a measure, such as the issuing of a European arrest warrant, which is capable of impinging on the right to liberty of the person concerned, enshrined in Article 6 of the Charter of Fundamental Rights of the European Union, that protection means that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection.69It follows that, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not a judge or a court, the national judicial decision, such as a national arrest warrant, on which the European arrest warrant is based, must, itself, meet those requirements.70Where those requirements are met, the executing judicial authority may therefore be satisfied that the decision to issue a European arrest warrant for the purpose of criminal prosecution is based on a national procedure that is subject to review by a court and that the person in respect of whom that national arrest warrant was issued has had the benefit of all safeguards appropriate to the adoption of that type of decision, inter alia those derived from the fundamental rights and fundamental legal principles referred to in Article 1(3) of Framework Decision 2002/584.71The second level of protection of the rights of the person concerned, referred to in paragraph 67 of the present judgment, means that the judicial authority competent to issue a European arrest warrant by virtue of domestic law must review, in particular, observance of the conditions necessary for the issuing of the European arrest warrant and examine whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant (see, to that effect, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 47).72It is for the ‘issuing judicial authority’, referred to in Article 6(1) of Framework Decision 2002/584, namely the entity which, ultimately, takes the decision to issue the European arrest warrant, to ensure that second level of protection, even where the European arrest warrant is based on a national decision delivered by a judge or a court.73Thus, the ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, must be capable of exercising its responsibilities objectively, taking into account all incriminatory and exculpatory evidence, without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive (see, to that effect, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 42).74Accordingly, the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant. That independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive.75In addition, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection.76In the present case, it is, on the one hand, clear from the information set out in the orders for reference, which were confirmed by the German Government at the hearing before the Court, that German public prosecutors’ offices are required to act objectively and must investigate not only incriminating but also exculpatory evidence. Nevertheless, the fact remains that, according to that same information, in accordance with Paragraphs 146 and 147 of the GVG, the Minister for Justice has an ‘external’ power to issue instructions in respect of those public prosecutors’ offices.77As that government confirmed at the hearing before the Court, that power to issue instructions enables that minister to have a direct influence on a decision of a public prosecutor’s office to issue or, in some cases, not to issue a European arrest warrant. That government made clear that that power to issue instructions could be exercised, in particular, at the stage when the proportionality of issuing a European arrest warrant is examined.78Admittedly, it should be noted that, as is argued by the German Government, German law provides safeguards which are capable of circumscribing the power to issue instructions enjoyed by the Minister for Justice in respect of the public prosecutor’s office, so that the situations in which that power could be exercised are extremely rare.79Thus, first, that government stated that the effect of the principle of legality which applies to the actions of the public prosecutor’s office is to ensure that any instructions in a specific case which it may receive from the Minister for Justice cannot in any event exceed the limits of the law, statutory or otherwise. It stated that the public prosecutors’ offices of the Länder of Schleswig-Holstein and of Saxony are, in addition, staffed by officials who cannot be dismissed from their positions simply on account of failure to comply with an instruction. Second, the German Government stated that, in the Land of Schleswig-Holstein, instructions from the minister to the public prosecutor’s office must be made in writing and notified to the President of the State Parliament. According to the German Government, in the Land of Saxony, the coalition agreement for the government of that Land provides that the minister for justice’s power to issue instructions is not to be exercised in a certain number of specific cases for the duration of that agreement.80However, it is clear that such safeguards, assuming that their existence were to be established, cannot wholly rule out the possibility, in all circumstances, that a decision of a public prosecutor’s office, such as those at issue in the cases in the main proceedings, to issue a European arrest warrant may, in a given case, be subject to an instruction from the minister for justice of the relevant Land.81First of all, although, in accordance with the principle of legality, an instruction from the minister which is manifestly unlawful should not, in principle, be followed by the relevant public prosecutor’s office, it should be noted that, as is clear from paragraph 75 of the present judgment, that minister’s power to issue instructions is laid down in the GVG, and the GVG does not specify the conditions governing the exercise of that power. The existence of that principle is not therefore, in itself, capable of preventing the minister for justice of a Land from influencing the discretion enjoyed by the public prosecutors’ offices of that Land in deciding to issue a European arrest warrant, which the German Government did moreover confirm at the hearing before the Court.82Second, although in certain Länder, such as the Land of Schleswig-Holstein, instructions from the minister must be given in writing, the fact remains that, as stated in the previous paragraph, such instructions are nevertheless authorised by the GVG. In addition, it is clear from the submissions made at the hearing before the Court that, in the light of the fact that that law is couched in general terms, it cannot, in any event, be ruled out that such instructions may be given orally.83Last, as regards the Land of Saxony, although, at this particular point in time, the executive has decided not to exercise the power to issue instructions in certain specific cases, the fact remains that that safeguard does not appear to cover all cases. In any event, that safeguard has not been enacted in statutory form, so that it cannot be ruled out that the situation may be changed in the future by political decision.84As set out in paragraph 73 of the present judgment, the risk that the executive may influence a public prosecutor’s office in such a way in a specific case means that it cannot be ensured that, in fulfilling its responsibilities for the purposes of the issuing of a European arrest warrant, that public prosecutor’s office satisfies the guarantees referred to in paragraph 74 of the present judgment.85That finding cannot be called into question by the fact that, as argued by the German Government at the hearing before the Court, the decision of public prosecutors’ offices, such as those at issue in the main proceedings, to issue a European arrest warrant may be the subject of an action brought by the person concerned before the relevant German court having jurisdiction.86As regards the information provided by that government, it does not appear that the existence of such an action is capable per se of protecting public prosecutors’ offices from the risk that their decisions may be the subject of an instruction, in a specific case, from the minister for justice in connection with the issuing of a European arrest warrant.87Although the effect of that legal remedy is to ensure that the exercise of the responsibilities of a public prosecutor’s office is subject to the possibility of review by a court a posteriori, any instruction in a specific case from the minister for justice to the public prosecutors’ offices concerning the issuing of a European arrest warrant remains nevertheless, in any event, permitted by the German legislation.88It follows from the foregoing that, in so far as the public prosecutors’ offices at issue in the main proceedings are exposed to the risk of being influenced by the executive in their decision to issue a European arrest warrant, those public prosecutors’ offices do not appear to meet one of the requirements of being regarded as an ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, namely the requirement that it be guaranteed that they act independently in issuing such an arrest warrant.89In the present case, it is, in that regard, irrelevant, for the reasons stated in paragraph 73 of the present judgment, that, in connection with the issuing of the European arrest warrants at issue in the main proceedings, no instruction in a specific case was issued to the public prosecutor’s office in Lübeck or in Zwickau from the ministers for justice of the Länder concerned.90In the light of all the foregoing, the answer to the questions referred is that the concept of an ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, must be interpreted as not including public prosecutors’ offices of a Member State which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant. Costs 91Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national courts, the decision on costs is a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. Cases C‑508/18 and C‑82/19 PPU are joined for the purposes of the judgment. 2. The concept of an ‘issuing judicial authority’, within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as not including public prosecutors’ offices of a Member State which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant. [Signatures]( *1 ) Language of the case: English. | 00df0-02a5034-4d38 | EN |
The General Court rejects the action for compensation brought against the ECB by private investors who suffered losses as a result of the restructuring of the Greek public debt in 2012 | 23 May 2019 ( *1 )(Non-contractual liability – Economic and monetary policy – ECB – National central banks – Restructuring of the Greek public debt – Involvement of the private sector – Collective action clauses – Mandatory exchange of Greek bonds – Private creditors – Opinion of the ECB – Sufficiently serious breach of a rule of law conferring rights on individuals – Principle of pacta sunt servanda – Article 17(1) and (2) of the Charter of Fundamental Rights – Article 63(1) TFEU – Article 124 TFEU)In Case T‑107/17, Frank Steinhoff, residing in Hamburg (Germany), Ewald Filbry, residing in Dortmund (Germany), Vereinigte Raiffeisenbanken Gräfenberg-Forchheim-Eschenau-Heroldsberg eG, established in Gräfenberg (Germany), Werner Bäcker, residing in Rodgau (Germany), EMB Consulting SE, established in Mühltal (Germany),represented by O. Hoepner and D. Unrau, lawyers,applicants,v European Central Bank (ECB), represented by O. Heinz and G. Várhelyi, acting as Agents, and H.-G. Kamann, lawyer,defendant,APPLICATION on the basis of Article 268 TFEU seeking restitution of the loss allegedly suffered by the applicants due to the fact that the ECB failed, in its Opinion of 17 February 2012 (CON/2012/12), to draw the attention of the Hellenic Republic to the unlawful nature of the proposed restructuring of the Greek public debt by a mandatory exchange of bonds,THE GENERAL COURT (Third Chamber),composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,Registrar: S. Bukšek Tomac, Administrator,having regard to the written part of the procedure and further to the hearing on 29 May 2018,gives the following Judgment Background to the dispute 1In October 2009, the Greek public debt crisis was triggered when the Greek Government announced that the public deficit stood at 12.5% of the gross domestic product (GDP), not 3.7% as had been previously stated. That announcement severely compounded the uncertainties surrounding the Hellenic Republic’s economic fundamentals and therefore precipitated several successive downgrades of its financial rating and a steady increase in interest rates charged by the financial markets to finance the Greek public debt.2At the end of April 2010, a rating agency downgraded the rating of Greek bonds from BBB– to BB+, a category regarded by the markets as indicating a high-risk debt. Accordingly, on 27 April 2010, the rating agency Standard & Poor’s (S&P) warned the holders of Greek bonds that their chance of recovering their money in the event of a restructuring of the Greek public debt or of a payment default on the part of the Greek State was on average only 30 to 50%.3Having regard to the fact that the Greek debt crisis threatened to affect other Member States in the euro area and endangered the stability of that area as a whole, at the European Council summit of 25 March 2010, the Heads of State or Government of the euro area agreed to put into place an intergovernmental mechanism to assist the Hellenic Republic, consisting of bilateral loans coordinated with non-concessionary interest rates, that is to say, without any element of subsidy. The disbursement of the loans was subject to strict conditions and its activation was to take place following a request from the Hellenic Republic. The aid mechanism also included a substantial level of participation by the International Monetary Fund (IMF).4On 2 May 2010, under the abovementioned aid mechanism, the euro area Member States agreed to supply the Hellenic Republic with EUR 80 billion as part of a financial package of EUR 110 billion allocated together with the IMF.5On 9 May 2010, in the context of the ECOFIN Council, a decision was taken to adopt a package of measures, including the adoption of Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ 2010 L 118, p. 1), based on Article 122(2) TFEU, and the creation of the European Financial Stability Facility (EFSF). On 7 June 2010, the EFSF was created and the euro area Member States and the EFSF signed a framework agreement laying down the conditions under which the EFSF would provide stability support.6In mid-2011, the Hellenic Republic, the euro area Member States and various creditors of the Greek State entered into discussions with a view to establishing a new financial assistance programme. The overarching objective of those discussions was to enable the Hellenic Republic to regain financial viability. One of the planned measures was to restructure the Greek public debt, under which the Hellenic Republic’s private creditors would contribute to reducing the burden of that debt, thereby avoiding a payment default.7In June and July 2011, the euro area Member States and various private creditors of the Greek State submitted proposals for the restructuring of the Greek public debt.8In a press release of 1 July 2011, the Institute of International Finance (IIF) stated, inter alia:‘The Board of Directors of the Institute of International Finance is committed to working with its membership and other financial sectors, the public sector, and the Greek authorities to deliver substantial cash-flow to [the Hellenic Republic], as well as to lay the basis for a more sustainable debt position.The private financial community is ready to engage in a voluntary, cooperative, transparent and broad-based effort to support [the Hellenic Republic] given its unique and exceptional circumstances …The involvement of private investors will complement parallel official financing and liquidity support and will be based on a small number of options …’9On 21 July 2011, the Heads of State or Government of the euro area and EU institutions met to consider measures to be taken in order to overcome the difficulties facing the euro area.10Their joint statement of 21 July 2011 includes, in particular, the following:‘1. We welcome the measures undertaken by the Greek Government to stabilise public finances and [to] reform the economy as well as the new package of measures including privatisation recently adopted by the Greek Parliament. These are unprecedented, but necessary, efforts to bring the Greek economy back on a sustainable growth path. We are conscious of the efforts that the adjustment measures entail for the Greek citizens, and are convinced that these sacrifices are indispensable for economic recovery and will contribute to the future stability and welfare of the country.2. We agree to support a new programme for [the Hellenic Republic] and, together with the IMF and the voluntary contribution of the private sector, to fully cover the financing gap. The total official financing will amount to an estimated [EUR] 109 billion … This programme will be designed, notably through lower interest rates and extended maturities, to decisively improve the debt sustainability and refinancing profile of [the Hellenic Republic]. We call on the IMF to continue to contribute to the financing of the new Greek programme. We intend to use the EFSF as the financing vehicle for the next disbursement. We will monitor very closely the strict implementation of the programme based on the regular assessment by the [European] Commission in liaison with the ECB and the IMF.…5. The financial sector has indicated its willingness to support [the Hellenic Republic] on a voluntary basis through a menu of options further strengthening overall sustainability. The net contribution of the private sector is estimated at [EUR] 37 billion …’11As regards private sector involvement, point 6 of the joint statement of 21 July 2011 indicates that:‘As far as our general approach to private sector involvement in the euro area is concerned, we would like to make it clear that [the Hellenic Republic] requires an exceptional and unique solution.’12At their summit of 26 October 2011, the Heads of State or Government of the euro area declared, in particular, as follows:‘12. The Private Sector Involvement (PSI) has a vital role in establishing the sustainability of the Greek debt. Therefore we welcome the current discussion between [the Hellenic Republic] and its private investors to find a solution for deeper PSI. Together with an ambitious reform programme for the Greek economy, the PSI should secure the decline of the Greek debt to GDP ratio with an objective of reaching 120% by 2020. To this end, we invite [the Hellenic Republic], private investors and all parties concerned to develop a voluntary bond exchange with a nominal discount of 50% on notional Greek debt held by private investors. The euro [area] Member States would contribute to the PSI package up to [EUR] 30 [billion]. On that basis, the official sector stands ready to provide additional programme financing of up to [EUR] 100 [billion] until 2014, including the required recapitalisation of Greek banks. The new programme should be agreed by the end of 2011 and the exchange of bonds should be implemented at the beginning of 2012. We call on the IMF to continue to contribute to the financing of the new Greek programme.15. As far as our general approach to private sector involvement in the euro area is concerned, we reiterate our decision taken on 21 July 2011 that [the Hellenic Republic] requires an exceptional and unique solution.’13According to a press release of the Greek Ministry of Finance of 17 November 2011, that ministry had commenced consultations with holders of Greek bonds in preparation for a voluntary exchange of those bonds with a notional haircut of 50% of the nominal value of Greek debt held by private investors, as provided for in point 12 of the statement of 26 October 2011.14On 2 February 2012, the Hellenic Republic submitted to the European Central Bank (ECB), pursuant to Article 127(4) TFEU, read in conjunction with Article 282(5) TFEU, a request for an opinion on draft Greek Law No 4050/2012 introducing rules amending the terms applicable to marketable securities issued or guaranteed by the Greek State under agreements with their holders for the purpose of restructuring the Greek public debt, based, in particular, on the application of collective action clauses (‘CACs’).15On 17 February 2012, the ECB issued Opinion CON/2012/12 on the terms of securities issued or guaranteed by the Greek State (‘the contested opinion’). It is apparent from that opinion, inter alia, that, first, ‘it is important that the Member States preserve their ability to honour at all times their commitments, also with a view to ensuring financial stability’; secondly, ‘the case of the Hellenic Republic is exceptional and unique’ (point 2.1); thirdly, the aim of the draft law is to promote private sector involvement and in particular to introduce a procedure to facilitate, in accordance with CACs, negotiation with holders of Greek bonds and the securing of their agreement to an exchange offer by the Hellenic Republic for its bonds and, therefore, a possible restructuring of the Greek public debt (point 2.2); fourthly, ‘the ECB welcomes that the terms of such exchange is the result of negotiations held between the Hellenic Republic and the institutions representing its bondholders’ (point 2.3); fifthly, ‘the use of CACs as a procedure to achieve an exchange of bonds is broadly aligned with general practice …’ (point 2.4); and sixthly, ‘it remains the sole responsibility of the Government of the Hellenic Republic to take the necessary action that will ultimately ensure its debt sustainability’ (point 2.6).16In a press release of 21 February 2012, the Greek Ministry of Finance disclosed the essential characteristics of the proposed voluntary bond exchange operation and announced that legislation would be prepared and adopted for that purpose. That transaction was to include a consent solicitation and an invitation to private holders of certain Greek bonds to exchange those bonds for new bonds having a face value equal to 31.5% of the face value of the debt exchanged and for notes of the EFSF maturing within 24 months having a face value equal to 15% of the face value of the debt exchanged, each to be delivered by the Hellenic Republic at settlement. In addition, each participating private holder would also receive detachable GDP-linked securities of the Hellenic Republic with a notional amount equal to the face amount of the new bonds.17Also on 21 February 2012, the Eurogroup issued a statement in which it ‘acknowledge[d] the common understanding … reached between the Greek authorities and the private sector on the general terms of the PSI exchange offer, covering all private sector bondholders’ and stated that ‘a successful PSI operation [wa]s a necessary condition for a successor programme’. In addition, the Eurogroup confirmed the provision of further financial assistance from the euro area Member States via the EFSF and pointed out that ‘the respective contributions from the private and the official sector should ensure that [the Hellenic Republic]’s public debt ratio is brought on a downward path reaching 120.5% of GDP by 2020’.18On 23 February 2012, the Greek Parliament adopted nomós 4050, Kanónes tropopoiíseos títlon, ekdóseos í engyíseos tou Ellinikoú Dimosíou me symfonía ton Omologioúchon (Law No 4050/2012 on the amendment of bonds issued or guaranteed by the Greek State with the consent of their holders and introducing the CACs mechanism) (FEK A’ 36 of 23 February 2012). Under the CACs mechanism, the proposed amendments would become legally binding on all holders of bonds governed by Greek law issued before 31 December 2011, as identified in the act of the Ministerial Council approving private sector involvement (‘PSI’) invitations, if the amendments were, collectively and without distinction by series, approved by a quorum of bondholders representing at least two thirds of the face value of those bonds. Furthermore, the preamble to Law No 4050/2012 states, in particular, that ‘the [ECB] and the other members of the Eurosystem have concluded special agreements with [the Hellenic Republic] in order to ensure that their task and their institutional role, and the [ECB’s] role in drawing up monetary policy, as laid down in the Treaty, are not compromised’.19In a press release of 24 February 2012, the Greek Ministry of Finance specified the conditions governing the voluntary bond exchange transaction involving private investors, referring to Law No 4050/2012. Public invitations to participate in bond exchanges were subsequently issued.20In a press release dated 9 March 2012, the Greek Ministry of Finance stated that, in principle, the conditions laid down by Law No 4050/2012 had been fulfilled and announced the proportions in which private creditors had accepted the exchange offer. In that regard, the press release stated, inter alia:‘Holders of approximately [EUR] 172 billion principal amount of bonds issued or guaranteed by the [Hellenic] Republic have tendered their bonds for exchange or consented to proposed amendments in response to the invitations and consent solicitations announced by the [Hellenic] Republic on 24 February 2012.Of the approximately [EUR] 177 billion of bonds issued by the [Hellenic] Republic and governed by Greek law and subject to the invitations, the [Hellenic] Republic has received tenders for exchange and consents from holders of approximately [EUR] 152 billion face amount of bonds, representing 85.8% of the outstanding face amount of these bonds. Holders of 5.3% of the outstanding face amount of these bonds participated in the consent solicitation and opposed the proposed amendments. The [Hellenic] Republic has advised its official sector creditors that upon confirmation and certification by the [Central] Bank of Greece as process manager under … Law [No] 4050/2012 …, it intends to accept the consents received and amend the terms of all of its Greek law governed bonds, including those not tendered for exchange pursuant to the invitations, in accordance with the terms of [Law No 4050/2012]. Accordingly the [Hellenic] Republic will not extend the invitation period for its bonds governed by Greek law.… If the consents to the proposed amendments to the [Hellenic] Republic’s Greek law bonds are accepted, the sum of the face amount of those bonds that will be exchanged and of the other bonds [governed by law other than Greek law] subject to the invitations for which the [Hellenic] Republic has received tenders for exchange and consents to the proposed amendments will total approximately [EUR] 197 billion, or 95.7% of the total face amount of the bonds subject to the invitations.’21The applicants, Mr Frank Steinhoff, Mr Ewald Filbry, Vereinigte Raiffeisenbanken Gräfenberg-Forchheim-Eschenau-Heroldsberg eG, Mr Werner Bäcker and EMB Consulting SE, as holders of Greek bonds, participated in the restructuring of the Greek public debt in accordance with the PSI and the CACs implemented pursuant to Law No 4050/2012, having refused the offer to exchange their bonds. Procedure and forms of order sought 22By application lodged at the Court Registry on 16 February 2017, the applicants brought the present action.23On a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral part of the procedure.24At the hearing on 29 May 2018, the parties presented oral argument and replied to oral questions put by the Court.25The applicants claim that the Court should:–order the ECB to pay EUR 314000 to Mr Steinhoff, EUR 54950 to Mr Filbry, EUR 2355000 to Vereinigte Raiffeisenbanken Gräfenberg-Forchheim-Eschenau-Heroldsberg, EUR 303795 to Mr Bäcker and EUR 750460 to EMB Consulting;increase those sums by a rate of interest of 5% above the base rate from the date on which the action was commenced.26The ECB contends that the Court should:dismiss the action as inadmissible or, in the alternative, as unfounded;order the applicants to pay the costs. Law Admissibility 27The ECB submits that the applicants’ action is inadmissible on four grounds: (i) the action is time-barred; (ii) the Court does not have jurisdiction to grant the forms of order sought; (iii) the ECB cannot be held liable in the absence of a power to adopt a legally binding act; and (iv) there is no non-contractual liability for omission where there is no duty to act.28The applicants deny that their action is inadmissible. Time bar of the action and admissibility of the annexes 29The ECB states that the damage alleged by the applicants derives from the PSI, published on 9 March 2012, and that the applicants’ action, lodged at the Court Registry on 16 February 2017, was the subject of requests for regularisation which they complied with on 15 March 2017. The ECB infers from this that the applicants’ action was not brought before the Court until 15 March 2017, with the result that it is time-barred under Article 46 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 76 of the Rules of Procedure of the General Court.30Article 46 of the Statute of the Court of Justice of the European Union provides that proceedings against the Union in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation is interrupted by the lodging of an application before the Court. Article 46 of the Statute states that that article also applies to actions against the ECB regarding non-contractual liability.31In the instant case, the applicants argue that the contested opinion, delivered on 17 February 2012, is the event giving rise to the non-contractual liability of the ECB. On 16 February 2017, the applicants brought their action for damages. Consequently, their action was brought within five years from the adoption of that opinion and cannot be regarded as time-barred.32That conclusion is not called into question by the fact that the application was subject to requests for regularisation from the Court Registry concerning, first, the production of annexes with consecutive page numbering, but separately from the procedural document to which they are annexed (see Annex 2(k) to the Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2015 L 152, p. 1), in the version applicable when those requests were made (‘the practice rules’)), and, secondly, the production of a certified copy of the procedural document and the annexes thereto (see Annex 2(h), (j) and (m) to the practice rules), or by the fact that the applicants did not rectify those irregularities until 15 March 2017.33Contrary to the ECB’s claims, the regularisation of an application does not, in principle, affect either the date on which the matter was brought before the Court or the assessment that the application was lodged within the time limits laid down in the sixth paragraph of Article 263 TFEU or Article 46 of the Statute of the Court of Justice of the European Union. Under point 111 of the practice rules, an application vitiated by procedural irregularities as referred to in Annex 2 of those rules may result only in a delay in its service. Where an application is rectified, the date of its lodging before the Court thus remains unchanged. An application should be regarded as inadmissible only when it does not contain the essential elements mentioned in Article 76 of the Rules of Procedure and those elements are not produced before the expiry of the period allowed for bringing an action (see, to that effect, judgments of 27 November 1984, Bensider and Others v Commission, 50/84, EU:C:1984:365, paragraph 8, and of 16 December 2011, Enviro Tech Europe and Enviro Tech International v Commission, T‑291/04, EU:T:2011:760, paragraph 95), or where it is the subject of a request for regularisation in so far as it does not comply with the requirements laid down in Annex I to the practice rules and the applicant does not carry out the requested regularisation (see point 110 of the practice rules).34The ECB also noted that several annexes to the application had not been translated from Greek into the language of the case, German. At the hearing, in response to a question from the Court, the ECB stated that it inferred from the lack of translation of those annexes into the language of the case that they had to be rejected as inadmissible.35It should be recalled that, under Article 46(2) of the Rules of Procedure, any material produced or annexed that is expressed in another language must be accompanied by a translation into the language of the case. Paragraph 3 of that article provides, however, that in the case of lengthy documents, translations may be confined to extracts. The translation of annexes to the application into the language of the case is not, therefore, a requirement that must be met as a matter of course. Consequently, the fact that those annexes were not translated may not automatically entail their inadmissibility.36Moreover, it is apparent from point 108 of the practice rules (now point 99 following the Amendments to the Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2018 L 294, p. 40)), that where the material annexed to a procedural document is not accompanied by a translation into the language of the case, the Registrar is to require the party concerned to make good the irregularity if such a translation appears necessary for the purposes of the efficient conduct of the proceedings. No such demand was made in this case, so that the lack of translation was not considered to affect the efficient conduct of the proceedings.37In the light of the above clarifications, it must be concluded that the fact that the annexes at issue were not translated into the language of the case does not constitute an irregularity entailing their inadmissibility and, furthermore, does not affect the date of lodging of the application or, therefore, the absence of time bar.38For all of the above reasons, the ECB’s claims that the applicants’ action is time-barred and the annexes which were not translated into the language of the case are inadmissible must be rejected. Jurisdiction of the Court 39The ECB contends that the alleged loss was caused by a purely national measure. Consequently, its non-contractual liability cannot be incurred and the Court does not have jurisdiction.40In support of that assertion, the ECB argues, first, that the losses which the applicants claim to have sustained are the result not of its conduct, but the conduct of the Greek Parliament, which adopted Law No 4050/2012, and the decision of a majority of holders of the bonds concerned. Secondly, the restructuring of the public debt of a Member State falls exclusively within the competence of the Member States. Thus, by adopting Law No 4050/2012, the Hellenic Republic was not implementing Union law within the meaning of Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Thirdly, irrespective of whether Law No 4050/2012 implements Union law, responsibility for compensating the applicants for all of the alleged losses lies with the Hellenic Republic, not the ECB, since, under Article 4(3) TEU, Member States are to take all appropriate measures to ensure fulfilment of their obligations under EU law, including the obligation to nullify the unlawful consequences of a breach of EU law. Fourthly, the contested opinion does not – and could not – concern the specific characteristics of the PSI. The decision to propose the PSI and its design was exclusively a matter for the authorities of the Hellenic Republic. Moreover, the decision to accept the terms of the PSI was taken by a qualified majority of private creditors.41The applicants submit that the contested opinion was a decisive factor in the adoption and implementation by the Greek State of Law No 4050/2012.42In the light of those arguments, it should be recalled that under Article 268 TFEU, read in conjunction with the third paragraph of Article 340 TFEU, the Court has jurisdiction to hear disputes relating to damage caused by the ECB, in accordance with the general principles common to the laws of the Member States.43Since the applicants claim that the damage caused to them was the result of the ECB adopting the contested opinion, the Court has jurisdiction to examine that claim on the basis of Articles 268 and 340 TFEU.44The fact that the ECB contends that such damage was caused not by the contested opinion, but by the conduct of the Hellenic Republic and the other holders of Greek bonds, does not invalidate that conclusion.45That question relates to the examination of the conditions necessary for the non-contractual liability of the Union to be incurred, namely, in this case, the existence of an event giving rise to liability and of a causal link between that event and the alleged damage, which fall to be reviewed when the substance of the case is considered (see, to that effect, judgments of 29 January 1998, Dubois et Fils v Council and Commission, T‑113/96, EU:T:1998:11, paragraph 34, and of 3 May 2017, Sotiropoulou and Others v Council, T‑531/14, not published, EU:T:2017:297, paragraphs 58 to 61).46If the Court finds that the alleged damage was not caused by the contested opinion, that finding will not alter either the scope of the subject matter of the present action, which seeks an order against the ECB requiring it to compensate the applicants, or the Court’s jurisdiction to hear the case. In that situation, the Court has jurisdiction to rule that the ECB cannot be held liable for the loss at issue and to dismiss the action as unfounded.47Consequently, the ECB’s argument that the Court does not have jurisdiction to rule on the non-contractual liability alleged by the applicants must be rejected. No non-contractual liability in the absence of a power to issue legally binding instructions 48The ECB submits that the applicants’ action is inadmissible because, by issuing its opinion pursuant to Article 127(4) and Article 282(5) TFEU, it did not exercise a power entitling it to give legally binding instructions. Therefore, it could not incur non-contractual liability by issuing such an opinion.49In support of that claim, the ECB asserts that it is apparent from settled case-law that the European Union cannot incur non-contractual liability towards individuals on the basis of cooperation between the EU institutions and national authorities or non-binding technical assistance provided by the EU institutions. An action for damages is inadmissible where the measure taken by the EU institution is purely political. Moreover, in the instant case, the Hellenic Republic acted in a purely national sphere of competence. Finally, the ECB denies, first, that according to more recent case-law, non-binding legal acts of EU institutions may incur the non-contractual liability of the European Union where those acts have resulted in unlawful conduct on the part of national authorities and, secondly, that its opinions are legally binding on Member States.50The applicants dispute those arguments.51It should be recalled that an action for damages is an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose. Whereas actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action for damages seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to an EU institution or body (judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 61).52According to settled case-law on the European Union’s non-contractual liability for damage caused to individuals by a breach of EU law attributable to an EU institution or body, which is applicable mutatis mutandis to the non-contractual liability of the ECB provided for in the third paragraph of Article 340 TFEU, a right to reparation is afforded where three conditions are met: the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious; actual damage must be shown to have occurred; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see, to that effect, judgments of 10 July 2003, Commission v Fresh Marine, C‑472/00 P, EU:C:2003:399, paragraph 25; of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 49 and the case-law cited; and of 4 April 2017, EuropeanOmbudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 31).53Therefore, only the unlawful conduct of an institution constituting a sufficiently serious breach is capable of establishing the non-contractual liability of the European Union. The decisive test for finding that a breach of EU law is sufficiently serious is whether the institution manifestly and gravely disregarded the limits on its discretion (see judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 43 and the case-law cited, and of 4 April 2017, European Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 31 and the case-law cited). It is solely where that institution or body has only considerably reduced, or even no, discretion, that the mere infringement of EU law may suffice to establish the existence of a sufficiently serious breach (judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 67 and the case-law cited). Moreover, the criterion of a sufficiently serious breach of a rule of law applies not only in the case of an individual act, but also in the case of an individual omission (see, to that effect, judgment of 16 November 2017, Acquafarm v Commission, T‑458/16, not published, EU:T:2017:810, paragraph 44 and the case-law cited).54Consequently, in order to establish whether an institution has incurred non-contractual liability, it is necessary to assess its conduct causing the alleged damage (see, to that effect, judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 60), in other words, in this case, whether the adoption by the ECB of the contested opinion constitutes a sufficiently serious breach of a rule of EU law causing the damage claimed by the applicants.55Unlike actions for annulment, the admissibility of actions for damages does not depend on whether the measure causing the alleged damage was in the nature of a decision or was binding. All conduct causing damage is capable of establishing non-contractual liability (see, to that effect, judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraphs 50 to 52 and 60; see also, concerning the breach of an obligation to do or to refrain from doing something, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 55 to 59, 67 and 68; concerning a reasoned opinion, judgment of 18 December 2009, Arizmendi and Others v Council and Commission, T‑440/03, T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04, EU:T:2009:530, paragraphs 66 to 69; and, concerning an individual omission, judgment of 16 November 2017, Acquafarm v Commission, T‑458/16, not published, EU:T:2017:810, paragraph 44 and the case-law cited). Indeed, if an EU Court were unable to assess the legality of the conduct of an EU institution or body, the procedure provided for in Article 268 and the second and third paragraphs of Article 340 TFEU would be rendered ineffective (see, to that effect, judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 61).56Consequently, the ECB cannot rely on the case-law prior to the judgment of 23 March 2004, Ombudsman v Lamberts (C‑234/02 P, EU:C:2004:174, paragraphs 31 to 94), in which the EU Courts had dismissed actions for damages as inadmissible on the sole ground that the unlawfulness pleaded was based on a measure with no legal effects (orders of 13 June 1991, Sunzest v Commission, C‑50/90, EU:C:1991:253, paragraphs 17 to 20; of 4 October 1991, Bosman v Commission, C‑117/91, EU:C:1991:382, paragraph 20; and of 10 December 1996, Söktas v Commission, T‑75/96, EU:T:1996:183, paragraph 49). The admissibility of an action for damages brought against an opinion of the ECB cannot therefore depend on whether or not that opinion was legally binding. To declare an action for damages to be inadmissible solely on the ground that the measure causing the alleged damage is not binding would be at odds with the purpose and effectiveness of that remedy.57Similarly, the fact that the contested opinion is of a political nature and that the ECB was not bound to adopt such an opinion does not affect the admissibility of the present action. The discretion conferred on an institution does not have the consequence of releasing it from its obligation to act in conformity both with the higher rules of law, such as the Treaty and the general principles of EU law, and with the applicable secondary legislation. Where the legality of that measure is challenged in an action for compensation, the measure is therefore capable of being assessed against the yardstick of the obligations borne by that institution (judgment of 18 December 2009, Arizmendi and Others v Council and Commission, T‑440/03, T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04,EU:T:2009:530, paragraph 66). Finally, the ECB’s claim that the Hellenic Republic acted in a purely national sphere of competence does not affect the fact that the applicants are challenging the conduct of the ECB in this case and that the Court has jurisdiction to examine the substance of that complaint.58Accordingly, the Court must reject the ECB’s argument that the applicants’ action is inadmissible because, by adopting the contested opinion, it did not exercise a power entitling it to issue legally binding instructions to the Hellenic Republic. No non-contractual liability for omission in the absence of a legal duty to act 59The ECB states that the applicants’ action is inadmissible because, by means of the alleged failure to act, it did not infringe a duty to act capable of triggering its non-contractual liability. In particular, it denies that it has any duty to protect the applicants’ right to property for the following reasons. First, in accordance with Article 127(4) TFEU, read in conjunction with the fifth paragraph of Article 288 TFEU, opinions issued by the ECB are not legally binding. Since Member States are not bound by its opinions, the ECB cannot ensure, by means of that mechanism, the effective protection of the fundamental rights of the applicants. Furthermore, those provisions do not require it to publish its opinions. Secondly, the ECB states that, under Article 17(1) TEU, it has no duty to promote the general interest of the Union and to oversee the application of EU law. According to the ECB, the purpose of the consultation and contested opinion was not to determine whether or not the PSI as such was desirable; rather, it was concerned with the technical details for introducing CACs applicable to Greek bonds. Thirdly, neither the Hellenic Republic nor, by analogy, the ECB is subject to any obligation to protect the investments and property of the applicants.60The applicants dispute that assessment.61In the light of those arguments, it is clear that the question whether or not the ECB could be held liable for failing, in the contested opinion, to notify the Hellenic Republic of possible illegalities vitiating draft Law No 4050/2012 on the ground that it had no duty to act concerns the substance of the action for damages, not its admissibility.62Indeed, the question whether the ECB committed a wrongful act by not informing the Hellenic Republic of the alleged unlawfulness of draft Law No 4050/2012 relates to the requirement of the existence of a sufficiently serious breach by the ECB of a rule of law conferring rights on individuals on account of that omission.63Consequently, the ECB’s claim that the applicants’ action is inadmissible in the absence of a legal duty to act and of non-contractual liability for failure to act must be rejected. Substance Preliminary observations 64According to the applicants, the ECB is bound to respect fundamental rights in all its activities, so that it is required, in an opinion on a draft law of a Member State, to highlight breaches of fundamental rights associated with the adoption and implementation of the proposed law. In the present case, the applicants assert that the ECB failed to state in the contested opinion that Law No 4050/2012 infringed, first, the principle of pacta sunt servanda; secondly, Article 17(1) and (2) of the Charter; thirdly, Article 63 TFEU; and, fourthly, Article 124 TFEU. Those omissions caused damage in the amount of EUR 314000 to Mr Steinhoff, EUR 54950 to Mr Filbry, EUR 2355000 to Vereinigte Raiffeisenbanken Gräfenberg-Forchheim-Eschenau-Heroldsberg, EUR 303795 to Mr Bäcker, and EUR 750460 to EMB Consulting.65The ECB contends that none of the necessary conditions for establishing its non-contractual liability is met in the present case.66Before examining each of those alleged breaches and the causal link between them and the alleged damage, it should be borne in mind that the non-contractual liability of the ECB provided for in the third paragraph of Article 340 TFEU presupposes that three cumulative conditions are satisfied: the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious; actual damage must be shown to have occurred; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see paragraphs 52 to 54 above).67Furthermore, it is important to draw attention to the scope of the ECB’s power to issue opinions.68Article 127(4) TFEU provides that the ECB is to be consulted by national authorities regarding any draft legislative provision in its fields of competence, within the limits and under the conditions set by the Council of the European Union. Similarly, Article 282(5) TFEU states that in the areas falling within its responsibilities, the ECB is to be consulted on all proposed Union acts, and all proposals for regulation at national level, and may give an opinion.69Recital 3 of Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft legislative provisions (OJ 1998 L 189, p. 42) makes clear that this obligation on the authorities of the Member States to consult the ECB must not prejudice the responsibility of those authorities for the matters which are the subject of such provision and that Member States must consult the ECB on any draft legislation in its fields of competence. Furthermore, according to recital 6 of Decision 98/415, consultation of the ECB must not unduly lengthen procedures for adopting legislative provisions in the Member States and the time limits within which the ECB must deliver its opinion must, nevertheless, enable it to examine the texts referred to it with the required care.70The content of those recitals is reproduced in the provisions of Decision 98/415. Thus, under Article 2 of Decision 98/415, the authorities of the Member States are to consult the ECB on any draft legislative provision within its field of competence pursuant to the TFEU and in particular on currency matters; means of payment; national central banks; the collection, compilation and distribution of monetary, financial, banking, payment systems and balance of payments statistics; payment and settlement systems; and rules applicable to financial institutions in so far as they materially influence the stability of financial institutions and markets. Furthermore, Article 4 of Decision 98/415 provides that each Member State is to ensure that the ECB is consulted at an appropriate stage enabling the authority initiating the draft legislative provision to take into consideration the ECB’s opinion before taking its decision on the substance and that the opinion received from the ECB is brought to the knowledge of the adopting authority if the latter is an authority other than that which prepared the legislative provisions concerned.71In the first place, it is clear from those provisions that the ECB’s opinions are not binding on national authorities. Indeed, according to recital 3 and Article 4 of Decision 98/415, national authorities are required only to take those opinions into account and they do not prejudice the responsibility of those authorities for the matters which are the subject of the draft legislative provisions concerned. It follows that in order to comply with the obligation to consult the ECB, the ECB must be able to make its views known effectively to the national authorities, but it cannot compel those authorities to abide by them. If the legislature had intended to make the ECB’s intervention legally binding as to its content, it would have conferred on it a power of authorisation, not a power to issue opinions. For the reasons given in paragraph 55 above, the fact that the ECB’s opinions are not binding on national authorities does not automatically preclude those opinions from rendering the ECB liable.72In the second place, the ECB enjoys a broad discretion when adopting its opinions. The Court has previously held, to that effect, that Articles 127 and 282 TFEU and Article 18 of the Statute of the European System of Central Banks (ESCB) confer a broad discretion on the ECB, the exercise of which entails complex evaluations of an economic and social nature and of rapidly changing situations, which must be carried out in the context of the Eurosystem, or even of the European Union as a whole. In particular, it has been held that the exercise of that discretion implies the need for the ECB to foresee and evaluate complex and uncertain economic developments, such as the development of capital markets, the monetary mass and the rate of inflation, which affect the proper functioning of the Eurosystem and payment and credit systems, and also to make political, economic and social choices in which it is required to weigh up and decide between the different objectives referred to in Article 127(1) TFEU, the main objective of which is the maintenance of price stability (see, to that effect, judgment of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 70 and the case-law cited, and Opinion of Advocate General Cruz Villalón in Gauweiler and Others, C‑62/14, EU:C:2015:7, point 111 and the case-law cited).73The broad discretion enjoyed by the ECB when adopting its opinions therefore means that its non-contractual liability may be incurred only if it manifestly and gravely disregards the limits on that discretion (see the case-law cited in paragraphs 53 and 72 above). Infringement of the principle of pacta sunt servanda 74According to the applicants, the Hellenic Republic could not legitimately insert, by means of Law No 4050/2012, review clauses into the terms governing existing bonds. It is precluded from doing so by the international law principle of pacta sunt servanda, enshrined in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, to which the Hellenic Republic has acceded and which is recognised by the Bundesgerichtshof (Federal Court of Justice, Germany) and the Court. The applicants therefore submit that the ECB should have acknowledged in the contested opinion that the Hellenic Republic infringed that principle by adopting a law providing for the mandatory exchange of Greek bonds for private creditors opposed to the exchange. The fact that the ECB did not do so amounts to an omission contrary to its obligations.75Moreover, the applicants deny that the Hellenic Republic is entitled to rely in the instant case on the principle of rebus sic stantibus to justify the variation of their contractual rights. In support of that argument, the applicants state, first, that the bonds in dispute were issued at a time when the international monetary community had unanimously called for State bonds to include CACs. Secondly, despite the applicants’ requests, the Hellenic Republic deliberately decided not to use CACs when issuing the bonds concerned. Thirdly, in April 2003, Member States agreed on the need to include CACs in international debt issuance (see Annex 1 of the report of the Economic and Financial Committee ECFIN/CEFCPE (2004) REP 50483 final of 12 November 2004, p. 7) and, in September 2003, the Economic and Financial Committee approved a set of clauses that were deemed to apply in the terms governing the issuance of debt. Fourthly, since November 2004, the ‘Governors of the Central Banks of the G20 countries’ have recommended the inclusion of CACs in bond contracts in order to promote the implementation of majority decisions (see the recommendation of 26 October 2004 entitled ‘Report to the EFC – Implementation of the EU commitment on Collective Action Clauses in documentation of International Debt Issuance’). Fifthly, the fears that CACs might lead to higher risk premiums and thereby increase the cost of financing the State were not borne out by the studies conducted in 2003 by A. Richards and M. Gugiatti (‘The Use of Collective Action Clauses in New York Law Bonds of Sovereign Borrowers’, Journal of International Law, 2004, p. 815 et seq.; Szodruch, A., Staateninsolvenz und private Gläubiger, BWV Verlag, 2008, p. 226). The applicants therefore submit that since the Hellenic Republic decided not to insert CACs into Greek bonds even though their inclusion in State bonds had been the subject of discussion, it was not entitled, when the changed circumstances arose which CACs were precisely designed to address, to seek to impose a restructuring by coercion.76The ECB disputes those claims. It submits that it was not required to point out in the contested opinion that Law No 4050/2012 potentially infringed the principle of pacta sunt servanda; it could not itself infringe that principle; and that principle had not been infringed in the light of the principle of rebus sic stantibus.77As noted in paragraph 52 above, only a sufficiently serious breach of a rule of law which confers rights on individuals is capable of establishing the non-contractual liability of the ECB. In order to ensure the effectiveness of the condition relating to the breach of a rule of law conferring rights on individuals, the protection offered by the rule invoked must be effective vis-à-vis the person who invokes it and that person must therefore be among those on whom the rule in question confers rights. A rule which does not protect the individual against the unlawfulness invoked by him, but protects another individual, cannot be accepted as a source of compensation (see, to that effect, judgments of 19 October 2005, Cofradía de pescadores San Pedro de Bermeo and Others v Council, T‑415/03, EU:T:2005:365, paragraph 96, and of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraph 86 and the case-law cited).78In the case in point, the applicants’ subscription to the disputed bonds which were issued and guaranteed by the Hellenic Republic created a contractual relationship between them and the Hellenic Republic. That contractual relationship is not governed by the principle of pacta sunt servanda under Article 26 of the Vienna Convention on the Law of Treaties. Pursuant to Article 1 thereof, the Convention applies only to treaties between States. Consequently, Article 26 of the Vienna Convention on the Law of Treaties is not a rule of law conferring rights on the applicants.79Nevertheless, the Court has held that the principle of pacta sunt servanda constitutes a fundamental principle of any legal order (judgment of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 49). Thus, the principle of pacta sunt servanda is also a general principle of EU law applicable to contracts under which a contract that has been validly entered into is binding upon the parties (see, to that effect, Opinion of Advocate General Trstenjak in Dominguez, C‑282/10, EU:C:2011:559, point 96, and Opinion of Advocate General Kokott in Pujante Rivera, C‑422/14, EU:C:2015:544, point 55).80However, as a rule, the rights and obligations of the parties to a contract bind only those parties. The general principles of contract law such as the principle of pacta sunt servanda do not call into question that relative scope of the rights held by a contracting party.81In addition, the opinions of the ECB are not addressed to individuals nor do they have as their main purpose contractual relations between an individual and a Member State following the issuance of bonds by that Member State. Under Article 2 of Decision 98/415, the addressees of the ECB’s opinions are the authorities of the Member States which are required to consult the ECB, not individuals. In addition, the ECB’s power to issue opinions is not designed to assess the rights and obligations of contracting parties, but is part of its core tasks in the field of monetary policy and is related in particular to its duty to maintain price stability within the meaning of Article 127(1) and (2) TFEU.82Consequently, where, as in the present case, the ECB is consulted by the Hellenic Republic regarding draft legislative provisions concerning national banks and the rules applicable to financial institutions in so far as they materially influence the stability of such institutions and the financial markets, it is not required to take a view on whether that Member State has complied with the general principle of contract law, pacta sunt servanda, vis-à-vis holders of State bonds.83Thus, the ECB’s power to issue opinions does not confer on the applicants a right to have the ECB draw attention to a breach of a contractual right they enjoy vis-à-vis the Hellenic Republic following the subscription by them to Greek bonds issued and guaranteed by that Member State. In the absence of a right enjoyed by the applicants to have the ECB take a view on that matter, the ECB cannot have acted unlawfully by failing to take a view in the contested opinion on compliance with the principle of pacta sunt servanda following the request for consultation by the Hellenic Republic.84Furthermore and in any event, it has not been shown that the adoption of Law No 4050/2012 entailed a breach of the principle of pacta sunt servanda. Investing in State bonds was not free from risk of economic loss, even though the law governing such bonds did not provide for the possibility, before their maturity, of renegotiating certain terms such as the face value, accrued interest or maturity. As pointed out by the Symvoulio tis Epikrateias (Council of State, Greece), that risk is notably due to the long length of time that elapses from the issuance of the bonds, during which unforeseen events may substantially curtail or even wipe out the financial capacities of the State, issuer or guarantor of those bonds. As the European Court of Human Rights (‘the ECtHR’) has held, if unforeseen events of that kind occur, such as the Greek public debt crisis in this case, the issuing State is entitled to attempt a renegotiation based on the principle of rebus sic stantibus (see judgment of the Symvoulio tis Epikrateias (Council of State), as summarised in § 29 of the judgment of the ECtHR of 21 July 2016, Mamatas and Others v. Greece, CE:ECHR:2016:0721JUD006306614).85Accordingly, the applicants are incorrect to claim that the ECB committed a wrongful act capable of triggering its non-contractual liability by failing to draw attention in the contested opinion to the breach of the principle of pacta sunt servanda allegedly caused by the adoption of Law No 4050/2012 in respect of them. Infringement of Article 17(1) and (2) of the Charter 86The applicants submit that the ECB should have acknowledged in the contested opinion that, by adopting draft Law No 4050/2010, the Hellenic Republic committed an infringement tantamount to the expropriation of the rights of dissenting creditors established abroad. The fact that it did not do so amounts to an omission contrary to its obligations.87In support of this complaint, first, the applicants state that Law No 4050/2010 was intended to force private creditors, who had expressly refused to give their consent to the restructuring, to participate in the reduction of the Greek public debt by means of the subsequent introduction of CACs.88Secondly, the applicants argue that Greek bonds fall within the definition of property as protected by Article 17 of the Charter. Those bonds constitute claims with a sufficient foundation in national law to be entitled to such protection. According to the applicants, the insolvency of the Greek State was inconceivable from a legal perspective and the bonds concerned were generally considered to be safe, particularly where they did not contain review clauses. In addition, they were considered to be safe under the Solvabilitätsverordnung (Regulation on solvency) of 14 December 2006 (BGBl. 2006 I, p. 2926) (see, in particular, Paragraph 26(2)(b) of the Regulation on solvency), even when the rating agencies downgraded the Hellenic Republic’s rating and the price of Greek bonds fell, because – their performance falling as it did to a foreign government or a foreign central bank – they had to be assigned to the ‘central governments’ exposure class. That last aspect is confirmed by Article 15 of nomós 2469, Periorismós kai veltíosi tis apotelesmatikótitas ton kratikón dapanón kai álles diatáxeis (Law No 2469/1997 concerning the limits on and improved effectiveness of public spending) of 14 March 1997 (FEK A’ 38/14.3.1997, p. 592). Since the protection of property forms part of the general principles of EU law which the Court has recognised in its case-law, the applicants argue that they are entitled to the protection of property as regards State bonds.89Thirdly, the applicants claim that the interference with their right to property is the result of acts of the State. According to the applicants, in its judgment of 22 March 2014, Symvoulio tis Epikrateias (ref. 1117/2014), the Symvoulio tis Epikrateias (Council of State) described the whole process of restructuring the Greek public debt as a covert act of the State.90Fourthly, the applicants assert that the requirement to pay fair compensation in good time is not satisfied by the receipt of 15% of the face value of the bonds previously held in the form of two notes issued by the EFSF and, for the 31.5% of the outstanding face value of those bonds, the receipt of new bonds issued by the Hellenic Republic with a maturity date between 2022 and 2042 and which include a CAC, with the consequence that the terms of issue of those bonds might be subsequently amended to the detriment of creditors without it, prima facie, being possible to mount a legal challenge to such modification. According to the applicants, this is in addition to the aggravating circumstance that, from an economic perspective, the reduction of the claim is not 46.5%, but 78.5%, as determined by the Symvoulio tis Epikrateias (Council of State) in its judgment of 22 March 2014, since less interest is paid and, in addition, the bonds transferred under the mandatory exchange do not mature until between 2022 and 2042, with the exception of the EFSF’s notes which matured in 2013 and 2014. That assessment by the Greek State is fully in line with that of the rating agency Moody’s.91The applicants therefore contend that the adoption of Law No 4050/2010 entails an interference that is tantamount to expropriation from them. That is the only interpretation satisfying the requirement of effective legal protection which the ECtHR laid down in its judgment of 23 September 1982, Sporrong and Lönnroth v. Sweden (CE:ECHR:1982:0923JUD 000715175, § 63 and the case-law cited), which is also decisive for the interpretation of Article 17 of the Charter in the light of the first sentence of Article 52(3) thereof.92Finally, the applicants claim that the ECtHR’s judgment of 21 July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD 006306614), is not relevant because it does not concern expropriation from foreign private creditors not established in Greece and, for that reason alone, the proportionality of the interference must be assessed differently than in the case of an interference by the State with the property of its own citizens. Furthermore, in that judgment, in assessing proportionality in the context of the calculation of loss, the ECtHR referred to the face value of 46.5% received in exchange, not the actual loss of economic value of 78.5%.93The ECB disputes the complaints put forward by the applicants. It contends, first, that those complaints should be directed against the Hellenic Republic since the PSI was designed and introduced exclusively by the Greek authorities and, secondly, that there was no breach of the applicants’ right to property because the restrictions imposed on that right were necessary and justified by general interest objectives recognised by the European Union.94In the light of those arguments, it should be recalled that under Article 17(1) of the Charter, everyone has the right to own, use, dispose of and bequeath his lawfully acquired possessions. No one may be deprived of his possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.95Furthermore, under Article 51 of the Charter, the Charter’s provisions are addressed, among others, to the EU institutions, including the ECB (see Article 13 TEU), which are required to respect the rights, observe the principles and promote the application of the Charter.96The right to property as enshrined in Article 17(1) of the Charter is a fundamental right of EU law (see judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 124 and the case-law cited), respect for which is a condition of the lawfulness of EU acts (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 284 and the case-law cited). Furthermore, that provision, which states that everyone has the right to own his lawfully acquired possessions, is a rule of law intended to confer rights on individuals (see, to that effect, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 66).97It follows that, in principle, a sufficiently serious breach of Article 17(1) of the Charter by the ECB is capable of giving rise to its non-contractual liability under the third paragraph of Article 340 TFEU.98In addition, the fundamental nature of that rule protecting individuals and the corresponding obligation for the ECB to promote compliance with it means that those individuals are entitled to expect the ECB to draw attention to the breach of such a rule when exercising its powers. It has already been held in the context of a financial assistance facility provided by the European Stability Mechanism to the Republic of Cyprus that Article 17(1) of the Charter can be infringed by the European Commission not only by positive action, but also by ‘passive’ conduct or the failure to take a measure where the Commission is under a specific obligation to do something (see, to that effect, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 57, 59 and 66 to 75). Similarly, the special status conferred on the ECB within the institutional framework of the Treaties does not exempt it from the requirement to respect the fundamental rights of the Union or from its duty to contribute to the attainment of the objectives of the Union as set out in Articles 2, 3 and 6 TEU (see, to that effect, judgment of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraph 91).99It must also be recalled, however, that the right to property guaranteed by Article 17(1) of the Charter is not absolute and its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union (see judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 69 and the case-law cited).100Consequently, as is apparent from Article 52(1) of the Charter, restrictions may be imposed on the exercise of the right to property, provided that the restrictions genuinely meet objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 70 and the case-law cited).101In the present case, it is common ground that Law No 4050/2012, forming the subject matter of the contested opinion, made it possible to reduce the face value of the bonds in dispute held by the applicants and, therefore, diminished their right to repayment of that value upon the maturity of the bonds.102Bonds that have reached maturity must, in principle, be repaid at their face value. In principle, therefore, the applicants held, upon the maturity of their bonds, a pecuniary claim against the Greek State in an amount equivalent to the bonds’ face value. The adoption of Law No 4050/2012 amended those terms by introducing CACs. As stated in paragraph 18 above, CACs were applicable to certain Greek bonds and specifically provided for the possibility of amending the terms governing them by means of an agreement between the Greek State and a majority of bondholders representing at least two thirds of the face value of the bonds concerned. Under the relevant provisions of that law, an amendment made in pursuance of such an agreement becomes legally binding on all holders of Greek bonds, including those who have not consented to the proposed amendment.103Law No 4050/2012 thus made it possible to force the holders of Greek bonds to participate in the reduction of the Greek public debt by devaluing the value of the bonds as soon as that reduction had been approved by the quorum of their holders. That law thus varied the rights of the holders of Greek bonds even though the terms governing their issuance did not contain review clauses.104Following the adoption of Law No 4050/2012, the Greek authorities published the characteristics of a PSI in the reduction of the Greek public debt and invited the holders of the bonds concerned to participate in a bond exchange. Since the quorum and the majority required for the planned bond exchange to go ahead were reached, all holders of Greek bonds, including those who opposed the exchange, had their bonds exchanged pursuant to Law No 4050/2012, with the result that the value of those bonds fell.105Although the adoption of Law No 4050/2012 thereby gave rise to an inference with the applicants’ right to property, that law meets general interest objectives, including that of ensuring the stability of the banking system of the euro area as a whole. Indeed, without restructuring of the Greek public debt, there was an appreciable risk of a further deterioration in the economic situation at the time, and even the possible insolvency of the Hellenic Republic, whose potentially defaulting bonds would no longer be acceptable to the ECB and the national central banks as collateral in Eurosystem credit operations. Moreover, such a development could entail risks for the stability of the financial system and the functioning of the Eurosystem as a whole.106Both the ECtHR and the Court have recognised those objectives of general interest. Thus, in its judgment of 21 July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD 006306614, § 103), the ECtHR held, in its examination of whether the right to property had been respected following a devaluation of the value of Greek bonds pursuant to Law No 4050/2012, that the Hellenic Republic was legitimately entitled to take measures to achieve the objectives of maintaining economic stability and restructuring debt in the general interest of the community. Similarly, in its judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 71), concerning the Cypriot public debt crisis, the Court found that ensuring the stability of the banking system of the euro area as a whole was an objective of general interest pursued by the European Union.107As to whether or not the reduction in the value of the disputed bonds held by the applicants constituted, in relation to the aim pursued, a disproportionate and intolerable interference impairing the very substance of the right guaranteed, the following matters must be borne in mind.108First, as the Court has already held, every creditor must bear the risk of his debtor’s insolvency, including a State debtor. The purchase by an investor of State bonds is, by definition, a transaction entailing a certain financial risk, because it is subject to the hazards of movements in the capital markets. In addition, the applicants had to be aware that the purchase of Greek bonds entailed a risk even before the beginning of the financial crisis, as the issuing Greek State was already faced with high indebtedness and a high deficit (see, to that effect, judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs 82 and 121).109Furthermore, in the instant case, the applicants acquired Greek bonds during the period when the Hellenic Republic was in financial crisis. As stated in paragraph 1 above, the Greek public debt crisis began in October 2009 and Greek bonds were acquired by Mr Steinhoff in September 2011, by Mr Filbry as from July 2011, by Vereinigte Raiffeisenbanken Gräfenberg-Forchheim-Eschenau-Heroldsberg in December 2009, and by Mr Bäcker as from April 2011. Those applicants therefore had to be aware at the time of purchase of the highly unstable economic situation that determined the fluctuation of the value of Greek bonds and also the appreciable risk of at least a selective default by the Hellenic Republic. As for EMB Consulting, in 2017, it acquired the rights of holders of Greek bonds who had themselves acquired those rights previously. The pleadings make clear that the rights transferred to EMB Consulting had been acquired for the most part before the idea of a forced exchange was floated. At the hearing, the applicants’ representative stated that those rights had been acquired in 2011 and 2012. As successor to the rights of those holders of Greek bonds, EMB Consulting cannot argue that it was not aware of the highly unstable economic situation at the time those bonds were purchased.110Moreover, the differences of opinion within the euro area Member States and the other bodies involved, such as the Commission, the IMF and the ECB, concerning a restructuring of the Greek public debt, could not have been overlooked by private creditors such as the applicants. In such circumstances, a prudent and circumspect economic operator could not have ruled out the risk of a restructuring of the Greek public debt (see, to that effect, judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs 82 and 121, and of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 97).111Finally, the circumstances that led to Law No 4050/2012 were genuinely exceptional. The Greek public debt crisis was extraordinary and, without restructuring, at least a selective default in the short term by the Hellenic Republic was a credible prospect (see, to that effect, judgment of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 97).112Secondly, the Greek and EU authorities as well as the vast majority of the private sector assessed the measures to reduce the Greek public debt forming the subject matter of this case and agreed to them. As the ECtHR essentially stated in its judgment of 21 July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD 006306614, § 116), one of the conditions imposed by international institutional investors for the reduction of their claims was the existence and activation of CACs. The absence of CACs would have resulted in the application of a higher reduction percentage to the Greek bonds held by those who were willing to accept a ‘haircut’ and would have contributed to deterring a large number of holders of such bonds from participating in the deleveraging process. It thus appears that CACs and the restructuring of the Greek public debt achieved as a result of them represented an appropriate and necessary means of reducing that debt and saving the Greek State from bankruptcy. In any event, apart from the argument, which is accordingly unfounded, that the private sector’s involvement in the restructuring of the Greek public debt could have been limited to bondholders who had consented to the bond exchange, the applicants have not claimed that Law No 4050/2012 was manifestly inappropriate or disproportionate for that purpose or that there was an equally effective but less onerous means of achieving the public interest objectives pursued.113Thirdly, it is true that the mandatory exchange of Greek bonds as a result of Law No 4050/2012 and the approval by a majority of the holders of such bonds caused their face value to fall very significantly. The applicants, who did not consent to the proposed amendment of the terms governing their bonds, had the new terms set out in that law and, in particular, a lowering of the face value of those bonds imposed on them. However, as the ECtHR pointed out in its judgment of 21 July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD 006306614, § 112), the benchmark for assessing the level of loss sustained by the applicants cannot be the amount they expected to receive when their bonds matured. Although the face value of a bond gives an indication of the quantification of the bondholder’s claim on the maturity date, it does not represent the true market value on the date the Greek State adopted the disputed legislation, in this case 23 February 2012, when Law No 4050/2012 was adopted. That value had undoubtedly already been affected by the declining solvency of the Greek State, a decline which began in mid-2010 and continued until the end of 2011. That fall in the market value of the applicants’ bonds held out the prospect that, as of 20 August 2015, the State would be unable to honour its obligations under the contractual clauses included in the old bonds, that is to say, before the adoption of Law No 4050/2012.114In the light of all those factors, it must be held that the reduction in the value of the disputed bonds did not constitute, in relation to the aim pursued, a disproportionate and intolerable interference impairing the very substance of the right guaranteed. Given the nature of the property title in question, the scale of the Greek public debt crisis, the endorsement by the Greek State and the majority of holders of Greek bonds of a bond exchange incorporating devaluation, and the magnitude of the losses sustained, that interference is not an intolerable impairment of the applicants’ right to property.115That conclusion is not called into question by the various arguments put forward by the applicants. Thus, the finding that the mandatory exchange and the devaluation of the disputed bonds are measures deriving from decisions of the Greek State as a public authority is not sufficient to establish a breach of the right to property as provided for in Article 17(1) of the Charter. The fact that bonds are generally considered to be safe, particularly under the Regulation on solvency (see paragraph 88 above), does not affect the assessment that the purchase of State bonds is, by definition, a transaction entailing a certain financial risk (see paragraph 108 above). Similarly, the financial losses claimed by the applicants, even if proven, are not sufficient to establish a breach of Article 17(1) of the Charter, since the bonds have a residual value and, without CACs and the restructuring of the Greek public debt achieved as a result of them, the likelihood of the Hellenic Republic’s going bankrupt would have increased significantly, leading not only to the collapse of the Greek economy and a risk for the euro area, but also an even greater reduction in the value of the disputed bonds held by the applicants. Finally, in so far as the applicants claim that the ECtHR’s judgment of 21 July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD 006306614), is not relevant because it is concerned only with expropriation from Greek private creditors, not foreign private creditors who are not established in Greece, it should be noted that the applicants do not put forward any convincing arguments to show that the ECtHR would have taken a different view if it had had to rule expressly on the situation of such foreign creditors, who, moreover, were bound by the same contractual terms under the Greek law of obligations as Greek creditors.116Accordingly, limiting the value of the disputed bonds of the applicants is not a disproportionate measure in relation to the aim of protecting the Hellenic Republic’s economy and the euro area against the risk of that Member State’s bankruptcy and the collapse of the economy. The applicants are therefore wrong to claim that the measures at issue infringe Article 17(1) of the Charter. Furthermore, in the absence of a breach of that provision, the ECB cannot be criticised for having failed to draw attention to such a breach in the contested opinion. Infringement of Article 63 TFEU 117The applicants submit that the ECB should have pointed out in the contested opinion that the implementation of Law No 4050/2012 entailed an infringement of Article 63 TFEU. According to the applicants, Law No 4050/2012 led to a restriction on the movement of capital because that concept should be interpreted as encompassing the legal deprivation of creditors’ rights where such deprivation is not based on a valid review clause. The outflow of capital from the repayment of matured bonds and from interest is restricted by the fact that dissenting creditors receive, instead of the full amount of capital invested, only proportions of that amount in the form of new bonds or notes that will not mature until between 2022 and 2042. The applicants assert that that restriction cannot be justified on the grounds of public policy set out in Article 65(1)(b) TFEU since creditors who did not consent to the reduction in the face value of Greek bonds did not pose, by reason of their claims, a threat to the existence of the Greek State.118The ECB contends that it cannot be held liable for an infringement of Article 63 TFEU and disputes the very existence of an infringement of that provision in the present case.119Article 63(1) TFEU prohibits all restrictions on the movement of capital between Member States and between Member States and third countries. Those restrictions include measures imposed by a Member State which are liable to deter, limit or prevent investors of other Member States from investing in that Member State or, conversely, to deter, limit or prevent investors of that Member State from investing in other Member States (see, to that effect, judgments of 26 September 2000, Commission v Belgium, C‑478/98, EU:C:2000:497, paragraph 18; of 23 October 2007, Commission v Germany, C‑112/05, EU:C:2007:623, paragraph 19; and of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 44).120The free movement of capital enshrined in Article 63(1) TFEU is one of the fundamental freedoms of the EU (see, to that effect, judgments of 1 July 2010, Dijkman and Dijkman-Lavaleije, C‑233/09, EU:C:2010:397, paragraphs 40 and 41, and of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 66) which must be respected by the Member States and the EU institutions alike (see, to that effect, judgments of 29 February 1984, Rewe-Zentrale, 37/83, EU:C:1984:89, paragraph 18; of 2 March 2010, Arcelor v Parliament and Council, T‑16/04, EU:T:2010:54, paragraph 177; and of 12 December 2012, Evropaïki Dynamiki v EFSA, T‑457/07, not published, EU:T:2012:671, paragraph 36) and, therefore, by the ECB too.121Irrespective of whether the implementation of Law No 4050/2012 led to a restriction on the movement of capital within the meaning of Article 63(1) TFEU, such a restriction, if it had been established, would be justified by overriding reasons in the public interest.122The Court has held that the free movement of capital may be limited by national legislation provided that such legislation is justified, on the basis of objective considerations independent of the origin of the capital concerned, by overriding reasons in the public interest and observes the principle of proportionality, a condition which requires the legislation to be appropriate for ensuring the attainment of the objective legitimately pursued and not to go beyond what is necessary in order for it to be attained (see judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 76 and the case-law cited).123In the present case, the measures at issue were justified by overriding reasons in the public interest. As stated in paragraph 111 above, the circumstances that led to Law No 4050/2012 were genuinely exceptional since, without restructuring, at least a selective default in the short term by the Hellenic Republic was a credible prospect. Moreover, as explained in paragraphs 105 and 106 above, the measures at issue were intended to ensure the stability of the banking system of the euro area as a whole. That objective is an overriding reason in the public interest.124Furthermore, the applicants have not shown that those measures were disproportionate. They served to restore the stability of the banking system of the euro area as a whole and it has not been demonstrated that they went beyond what was necessary for that purpose. In particular, the involvement of private creditors in the exchange of Greek bonds on a voluntary basis only, as the applicants advocated, would not have ensured the success of that exchange. Without the assurance that private creditors would be treated equally, very few of those creditors would have accepted the exchange in view of the moral hazard it entailed, namely that they would bear the consequences of risks taken by creditors who were not participating in the exchange of Greek bonds. The success of the bond exchange was a precondition for the restructuring of the Greek public debt, which, in turn, was necessary to stabilise the banking system of the euro area.125Accordingly, the applicants are wrong to take issue with the ECB for failing to draw attention in the contested opinion to an infringement of the free movement of capital within the meaning of Article 63 TFEU. Infringement of Article 124 TFEU – Preliminary observations 126The applicants argue that the Hellenic Republic infringed Article 124 TFEU by imposing on dissenting creditors a mandatory exchange of their existing Greek bonds for new bonds.127The ECB disputes the claim that either it or the Hellenic Republic infringed Article 124 TFEU. Moreover, the ECB contends that its rights of the defence were infringed as regards paragraphs 55 and 56 of Annex A.8 mentioned by the applicants, since those paragraphs do not appear in the application.– The ECB’s rights of the defence 128In the application, the applicants stated that the Commission had confirmed that an infringement of Article 124 TFEU was made out in cases of expropriation. To support that assertion, the applicants referred to paragraphs 55 and 56 of the Commission’s observations of 19 August 2013 submitted to the Court in Cases C‑226/13, C‑245/13 and C‑247/13 attached as Annex A.8. Paragraphs 55 and 56 of those observations were not, however, reproduced in Annex A.8, because pages 13 to 15 of the observations were missing. The ECB deduces from this that it was unable to exercise its rights of the defence in respect of those paragraphs.129It follows from the principle of unfettered adduction of evidence that a party before the Court is, in principle, entitled to rely on as evidence documents adduced in other legal proceedings. The proper administration of justice precludes the production of such documents before the Court only where that party has had unlawful access to them or where they are confidential (see, to that effect, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 55).130It must also be observed that the applicants produced the pages missing from Annex A.8 in the reply (see Annex C.5), so that the ECB was able to state its views on those paragraphs in the rejoinder and at the hearing. Furthermore, the argument put forward by the applicants is based not only on Annex A.8, but on Annex A.9 too. Paragraphs 48 and 49 of that annex, which contain the Commission’s observations of 21 February 2014 submitted to the Court in Case C‑578/13, are identical to paragraphs 55 and 56 of the Commission’s observations of 19 August 2013 reproduced in Annex C.5.131In the light of those considerations, the ECB is wrong to claim that its rights of the defence were infringed and that the applicants’ assertion based on paragraphs 55 and 56 of Annex A.8 should be rejected.– Article 124 TFEU 132Article 124 TFEU prohibits any measure, not based on prudential considerations, establishing privileged access by Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of Member States to financial institutions.133The applicants submit that, under that provision and Council Regulation (EC) No 3604/93 of 13 December 1993 specifying definitions for the application of the prohibition of privileged access referred to in Article [124 TFEU] (OJ 1993 L 332, p. 4), Member States may not provide to the public sector, by means of measures of a public authority, privileged access to credit institutions. According to the applicants, the creditors who did not consent to the restructuring of the Greek public debt included credit institutions which were ‘financial institutions’ within the meaning of Article 4(1) of Regulation No 3604/93, read in conjunction with the first indent of Article 1 of First Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322, p. 30). The applicants state that the mandatory exchange of Greek bonds established by Law No 4050/2012 required those financial institutions to deposit the new State bonds on terms that were clearly not market compliant. That exchange therefore infringed Article 124 TFEU. In support of that argument, the applicants contend that when the mandatory exchange of Greek bonds took place in March 2012, the face value of the ‘new’ bonds accounted for only 46.5% of the face value of the ‘old’ bonds exchanged and that, from an economic perspective, the value of those ‘new’ bonds accounted for only 21.5% of the value of the ‘old’ bonds (see judgment of the Symvoulio tis Epikrateias (Council of State) of 22 March 2014).134Accordingly, the applicants essentially complain that the ECB committed a sufficiently serious breach by failing to draw attention to the fact that draft Law No 4050/2012 gave rise to an infringement of Article 124 TFEU.135However, first, Law No 4050/2012 does not grant privileged access to financial institutions contrary to Article 124 TFEU.136Article 124 TFEU prohibits any measure, not based on prudential considerations, granting Member States, among others, privileged access to financial institutions so as to encourage the former to follow a sound budgetary policy, not allowing monetary financing of public deficits or privileged access by public authorities to the financial markets to lead to excessively high levels of debt or excessive Member State deficits (see, to that effect, first recital of Regulation No 3604/93 and judgment of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 22 and the case-law cited).137The aim of Law No 4050/2012 was not to increase the level of debt of the Hellenic Republic, but rather to reduce it, due to its excessively high nature, by devaluing the bonds held by the applicants.138Moreover, the adoption of Law No 4050/2012 is justified by prudential considerations as referred to in Article 124 TFEU. These are defined by Article 2 of Regulation No 3604/93 as considerations which underlie national laws, regulations or administrative actions based on, or consistent with, EU law and designed to promote the soundness of financial institutions so as to strengthen the stability of the financial system as a whole and the protection of the customers of those institutions. Draft Law No 4050/2012 contributed to preserving both Greek public finances and the stability of the financial system in the euro area (see paragraphs 105 and 106 above).139Secondly, Article 124 TFEU is not designed to protect the applicants and does not confer rights on them.140As explained in paragraph 77 above, a rule of law which does not confer rights on the person invoking it cannot form the basis of a claim for damages. Accordingly, a rule which does not protect the person against the unlawfulness invoked by him, but protects another person, cannot be accepted. A rule of law is intended to confer rights on individuals where it creates an advantage which could be defined as a vested right, is designed for the protection of the interests of individuals or entails the grant of rights to individuals, the content of those rights being sufficiently identifiable (see judgment of 19 October 2005, Cofradía de pescadores San Pedro de Bermeo and Others v Council, T‑415/03, EU:T:2005:365, paragraph 86 and the case-law cited). Here, the rule laid down in Article 124 TFEU is designed to protect the institutions of the European Union and of the Member States against the budgetary risks of privileged access to financial institutions. The prohibition set out in Article 124 TFEU is therefore intended to protect not individuals and undertakings such as the applicants in the instant case, but the European Union in itself, including Member States, against conduct liable to undermine the economic and financial stability of the Union as a whole.141Consequently, Article 124 TFEU cannot be considered to be a provision conferring rights on the applicants, with the result that they cannot rely on it in support of their claim for damages.142For all of those reasons, the applicants are wrong to invoke the existence of unlawfulness rendering the ECB liable towards them based on the ECB’s failure to draw attention to a breach of Article 124 TFEU in this case.143Given the cumulative nature of the conditions for establishing the non-contractual liability of the ECB, the action must be dismissed in its entirety where one of those conditions is not satisfied (see, to that effect, judgment of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 68 and the case-law cited).144In this instance, in the light of all the foregoing considerations, it must be concluded that none of the arguments put forward by the applicants demonstrates that the ECB committed a sufficiently serious breach of rules of law conferring rights on individuals. Accordingly, the applicants’ claims for compensation must be rejected for that reason alone, without there being any need to examine actual damage and the existence of a causal link between the alleged conduct of the ECB and the damage claimed. Costs 145Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the ECB.On those groundsTHE GENERAL COURT (Third Chamber)hereby: 1. Dismisses the action; 2. Orders Mr Frank Steinhoff, Mr Ewald Filbry, Vereinigte Raiffeisenbanken Gräfenberg-Forchheim-Eschenau-Heroldsberg eG, Mr Werner Bäcker and EMB Consulting SE to pay the costs. Frimodt NielsenKreuschitzPółtorakDelivered in open court in Luxembourg on 23 May 2019.[Signatures]( *1 ) Language of the case: German | db28f-3ee66ee-44db | EN |
In cancelling the rights of usufruct over agricultural land in its territory that are held, directly or indirectly, by nationals of other Member States, Hungary has failed to fulfil its obligations arising from the principle of the free movement of capital and the right to property guaranteed by the Charter | 21 May 2019 ( *1 )Table of contentsI. Legal contextA. European Union law1. The Charter2. The 2003 Act of AccessionB. Hungarian lawII. Pre-litigation procedureIII. Consideration of the subject-matter of the actionIV. The jurisdiction of the CourtA. Arguments of the partiesB. Findings of the CourtV. Substance1. Article 49 TFEU2. Article 63 TFEU and Article 17 of the Charter(a) The applicability of Article 63 TFEU and the existence of a restriction of the free movement of capital(b) Consideration of whether the restriction of the free movement of capital is justified and of the applicability of Article 17 of the Charter(1) Whether persons have been deprived of property within the meaning of Article 17(1) of the Charter(2) Grounds of justification and the public interest(i) The justification founded on objectives of general interest related to the farming of agricultural land(ii) The justification deriving from infringement of the national legislation concerning exchange controls(iii) The justification founded on the prevention, on the ground of protection of public policy, of practices designed to circumvent national law(iv) Absence of a public-interest ground and of any arrangements for compensation, as referred to in Article 17 of the Charter(c) ConclusionCosts(Failure of a Member State to fulfil obligations — Article 63 TFEU — Free movement of capital — Article 17 of the Charter of Fundamental Rights of the European Union — Right to property — National legislation extinguishing, without compensation, the rights of usufruct over agricultural and forestry land acquired by legal persons or by natural persons who cannot demonstrate a close family tie with the owner of the land)In Case C‑235/17,ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 5 May 2017, European Commission, represented by L. Malferrari and L. Havas, acting as Agents,applicant,v Hungary, represented by M.Z. Fehér, acting as Agent,defendant,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Prechal (Rapporteur), E. Regan and T. von Danwitz, Presidents of Chamber, A. Rosas, L. Bay Larsen, M. Safjan, D. Šváby, C.G. Fernlund, C. Vajda and S. Rodin, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: I. Illéssy, Administrator,having regard to the written procedure and further to the hearing on 9 July 2018,after hearing the Opinion of the Advocate General at the sitting on 29 November 2018,gives the following Judgment 1By its application, the European Commission requests the Court to declare that, having regard in particular to the provisions in force since 1 January 2013 of termőföldről szóló 1994. évi LV. törvény (Law No LV of 1994 on productive land; ‘the 1994 Law on productive land’), the relevant provisions of mező- és erdőgazdasági földek forgalmáról szóló 2013. évi CXXII. törvény (Law No CXXII of 2013 on transactions in agricultural and forestry land; ‘the 2013 Law on agricultural land’), certain provisions of mező- és erdőgazdasági földek forgalmáról szóló 2013. évi CXXII. törvénnyel összefüggő egyes rendelkezésekről és átmeneti szabályokról szóló 2013. évi CCXII. törvény (Law No CCXII of 2013 laying down various provisions and transitional measures concerning Law No CXXII of 2013 on transactions in agricultural and forestry land; ‘the 2013 Law on transitional measures’) and Paragraph 94(5) of ingatlan-nyilvántartásról szóló 1997. évi CXLI. törvény (Law No CXLI of 1997 on the land register; ‘the Law on the land register’), Hungary, by restricting in a manifestly disproportionate manner the rights of usufruct over agricultural and forestry land, has failed to fulfil its obligations under Articles 49 and 63 TFEU and Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’). I. Legal context A. European Union law 1. The Charter 2Article 17 of the Charter, entitled ‘Right to Property’, provides, in paragraph 1:‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’3Article 51 of the Charter, entitled ‘Field of application’, provides in paragraph 1:‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law. …’4Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides, in paragraphs 1 and 3:‘1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.…3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’ 2. The 2003 Act of Accession 5Annex X to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33; ‘the 2003 Act of Accession’) is entitled ‘List referred to in Article 24 of the Act of Accession: Hungary’; Chapter 3 of that annex, entitled ‘Free movement of capital’, provides in paragraph 2:‘Notwithstanding the obligations under the Treaties on which the European Union is founded, Hungary may maintain in force for seven years from the date of accession the prohibitions laid down in its legislation existing at the time of signature of this Act on the acquisition of agricultural land by natural persons who are non-residents or non-nationals of Hungary and by legal persons. In no instance may nationals of the Member States or legal persons formed in accordance with the laws of another Member State be treated less favourably in respect of the acquisition of agricultural land than at the date of signature of the Accession Treaty. …Nationals of another Member State who want to establish themselves as self-employed farmers and who have been legally resident and active in farming in Hungary at least for three years continuously, shall not be subject to the provisions of the preceding subparagraph or to any rules and procedures other than those to which nationals of Hungary are subject.If there is sufficient evidence that, upon expiry of the transitional period, there will be serious disturbances or a threat of serious disturbances on the agricultural land market of Hungary, the Commission, at the request of Hungary, shall decide upon the extension of the transitional period for up to a maximum of three years.’6By Commission Decision 2010/792/EU of 20 December 2010 extending the transitional period concerning the acquisition of agricultural land in Hungary (OJ 2010 L 336, p. 60), the transitional period established in paragraph 2 of Chapter 3 of Annex X to the 2003 Act of Accession was extended until 30 April 2014. B. Hungarian law 7Paragraph 38(1) of földről szóló 1987. évi I. törvény (Law No I of 1987 on land) provided that natural persons who did not possess Hungarian nationality or who did possess that nationality but resided permanently outside Hungary, as well as legal persons whose seat was outside Hungary or whose seat was in Hungary but whose capital was held by natural or legal persons resident or established outside Hungary, could acquire ownership of productive land by means of purchase, exchange or donation only with the prior authorisation of the Minister for Finance.8Paragraph 1(5) of 171/1991 Korm. Rendelet (Government Decree No 171/1991) of 27 December 1991, which entered into force on 1 January 1992, precluded the acquisition of productive land by persons not having Hungarian nationality, with the exception of persons in possession of a permanent residence permit and those with refugee status.9The 1994 Law on productive land maintained that prohibition of acquisition, extending it to legal persons, irrespective of whether or not they were established in Hungary.10That law was amended, with effect from 1 January 2002, by termőföldről szóló 1994. évi LV. törvény módosításáról szóló 2001. évi CXVII. törvény (Law No CXVII of 2001 amending Law No LV of 1994 on productive land), in order also to preclude a right of usufruct over productive land from being created by contract in favour of natural persons not possessing Hungarian nationality or legal persons. Following those amendments, Paragraph 11(1) of the 1994 Law on productive land provided that ‘for the right of usufruct and the right of use to be created by contract, the provisions of Chapter II regarding the restriction on the acquisition of property must be applied. …’.11Paragraph 11(1) of the 1994 Law on productive land was subsequently amended by egyes agrár tárgyú törvények módosításáról szóló 2012. évi CCXIII. törvény (Law No CCXIII of 2012 amending certain laws on agriculture). In the new version resulting from that amendment, which entered into force on 1 January 2013, Paragraph 11(1) provided that ‘the right of usufruct created by a contract shall be null and void, unless it is created for the benefit of a close relation’. Law No CCXIII of 2012 also introduced into the 1994 Law a new Paragraph 91(1), in accordance with which ‘any right of usufruct existing on 1 January 2013 and created, for an indefinite period or for a fixed term expiring after 30 December 2032, by a contract between persons who are not close members of the same family shall be extinguished by operation of law on 1 January 2033’.12The 2013 Law on agricultural land was adopted on 21 June 2013 and entered into force on 15 December 2013.13Paragraph 37(1) of the 2013 Law on agricultural land maintains the rule that a right of usufruct or a right of use over such land that is created by contract is to be null and void unless it was created for the benefit of a close member of the same family.14Paragraph 5(13) of the 2013 Law on agricultural land contains the following definition:‘“Close member of the same family” shall mean spouses, direct ascendants and descendants, adopted children, stepchildren, adoptive parents, step-parents, foster parents and brothers and sisters.’15The 2013 Law on transitional measures was adopted on 12 December 2013 and entered into force on 15 December 2013.16Paragraph 108(1) of that law, which repealed Paragraph 91(1) of the 1994 law on productive land, states that:‘Any right of usufruct or right of use existing on 30 April 2014 and created, for an indefinite period or for a fixed term expiring after 30 April 2014, by a contract between persons who are not close members of the same family shall be extinguished by operation of law on 1 May 2014.’17Paragraph 94 of the Law on the land register provides:‘1. With a view to the deletion from the land register of rights of usufruct and rights of use (for the purposes of this Paragraph referred to collectively as “rights of usufruct”) extinguished under Paragraph 108(1) of [the 2013 Law on transitional measures], the natural person holding rights of usufruct shall, upon being notified by 31 October 2014 at the latest by the authority responsible for administering the land register, within 15 days of the delivery of such notice, declare, using the form prescribed for that purpose by the Minister, the existence, as the case may be, of a close family relationship with the person shown as owner of the property in the document which served as the basis for registration. Where no declaration is made within the prescribed period, no application for continuation shall be accepted after 31 December 2014.3. If the declaration does not reveal a close family relationship, or if no declaration has been made within the prescribed period, the authority responsible for administering the land register shall of its own motion delete the rights of usufruct from the register within 6 months following the expiry of the deadline for making the declaration and no later than 31 July 2015.5. The authority responsible for administering the land register shall, no later than 31 December 2014, of its own motion delete from the land register any rights of usufruct which were registered on behalf of a legal person or an entity not having legal personality but having the capacity to acquire a registrable right and which has been cancelled pursuant to Paragraph 108(1) of [the 2013 Law on transitional measures].’ II. Pre-litigation procedure 18On 17 October 2014, the Commission sent a letter of formal notice to Hungary, taking the view that, by adopting the restrictions relating to the right of usufruct over agricultural land, contained in certain provisions of the 2013 Law on transitional measures, including Paragraph 108(1) thereof, Hungary had infringed Articles 49 and 63 TFEU and Article 17 of the Charter. Hungary replied by a letter dated 18 December 2014 in which it disputed those infringements.19On 19 June 2015, the Commission issued a reasoned opinion in which it maintained that, by cancelling certain rights of usufruct with effect from 1 May 2014 by means of Paragraph 108(1) of the 2013 Law on transitional measures, Hungary had infringed the provisions of EU law mentioned in the previous paragraph. Hungary replied by letters dated 9 October 2015 and 18 April 2016, in which it argued that there had been no infringements as alleged.20In those circumstances, the Commission decided to bring the present action. III. Consideration of the subject-matter of the action 21In the form of order sought in its application, the Commission complains that Hungary has ‘restricted’ rights of usufruct over agricultural and forestry land (‘agricultural land’) in breach of EU law, in view of various provisions of national law that it mentions in the form of order sought. However, it follows both from the reasoned opinion and from the contents of the application itself and it is, moreover, common ground between the parties — as was confirmed by the submissions made at the hearing, which the Advocate General outlines in point 39 of his Opinion — that the restriction of rights of usufruct of which the Commission complains in the present case is, more specifically, the restriction arising as a result of the cancellation of those rights by Paragraph 108(1) of the 2013 Law on transitional measures. The other provisions of national law referred to in the form of order sought by the applicant are mentioned therein and in the application itself only as elements of the domestic legislative context of which Paragraph 108 forms part, those elements being essential for a full understanding of the scope of that provision.22The Commission’s action thus seeks a declaration that, by adopting Paragraph 108(1) of the 2013 Law on transitional measures (‘the contested provision’) and thereby cancelling, by operation of law, rights of usufruct previously created over agricultural land in Hungary, as between persons who are not close members of the same family, Hungary has failed to fulfil its obligations under Articles 49 and 63 TFEU and Article 17 of the Charter. IV. The jurisdiction of the Court A. Arguments of the parties 23Hungary submits, as a preliminary point, that, since the usufruct contracts cancelled by the contested provision circumvented the prohibitions on acquiring ownership of agricultural land that were in force before Hungary acceded to the European Union and were, on that account, void ab initio even before that accession, neither the prohibitions thereby infringed, nor their effects, nor, consequently, the subsequent cancellation by the contested provision of the rights of usufruct at issue can be assessed in the light of EU law. In its view, the Court does not have jurisdiction to interpret EU law when the facts of the dispute pre-date the accession of the Member State concerned to the European Union.24The Commission argues that EU law applies ab initio in new Member States and that, in the present case, the dispute concerns a provision of national law adopted in 2013, which provided for the cancellation, by operation of law, on 1 May 2014 of rights of usufruct still in existence at that time and recorded in the land registers: the dispute does not concern the legality of usufruct contracts concluded before Hungary’s accession to the European Union. Moreover, Hungary explicitly acknowledged, in its reply to the reasoned opinion, there has been no case in which the Hungarian courts have held such usufruct contracts to be void. B. Findings of the Court 25According to settled case-law, the Court has jurisdiction to interpret EU law as regards its application in a new Member State with effect from the date of that State’s accession to the European Union (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 39 and the case-law cited).26In the present case, as the Commission has argued, the rights of usufruct affected by the contested provision were still in existence on 30 April 2014 and were cancelled and subsequently deleted from the land register as a result of that provision, which was adopted nearly 10 years after Hungary’s accession to the European Union, and not by virtue of any national rules that may have been in force and produced all their effects with regard to those rights of usufruct before the date of that accession.27It follows that Hungary’s arguments challenging the Court’s jurisdiction must be rejected. V. Substance 28The Commission submits, in the first place, that the contested provision is capable of restricting, depending on the particular circumstances of each individual case, both the freedom of establishment and the free movement of capital and, consequently, of infringing both Article 49 TFEU and Article 63 TFEU.29In the second place, the contested provision is, in the Commission’s view, indirectly discriminatory vis-à-vis nationals of Member States other than Hungary inasmuch as between 1992 and 2002, the creation of a right of usufruct was the only way for such nationals to invest in agricultural land in Hungary and it would moreover have been unusual for those persons to have close relations owning agricultural land, from whom they could have acquired such a right over such land. In those circumstances, the contested provision cannot, so the Commission argues, be justified on the basis of Article 65(1)(b) TFEU or by overriding reasons in the public interest that are recognised by the case-law.30In the third place, even if grounds of justification of that kind can be envisaged, those relied on by Hungary are not acceptable here and the contested provision does not satisfy the requirements deriving from the principle of proportionality.31As regards, first, the various agricultural policy objectives mentioned in the preamble to the 2013 Law on agricultural land, which the Alkotmánybíróság (Constitutional Court, Hungary) described in judgment No 25 of 21 July 2015 — namely ensuring that productive agricultural land can be owned only by the natural persons who work it and not for the purposes of speculation, preventing the fragmentation of land and preserving a population in rural areas and maintaining sustainable agriculture, as well as creating farms that are viable in size and are competitive — the Commission argues that those objectives do not justify an obstacle to the free movement of capital.32In any event, the restrictions at issue are not, in the Commission’s view, appropriate, coherent or necessary for the purpose of attaining the objectives invoked.33As regards, secondly, the objective of rectifying unlawful situations arising where non-residents acquired rights of usufruct without having the foreign exchange authorisation from the National Bank of Hungary that was required until 16 June 2001 under Law No XCV of 1995 on foreign currency, the Commission argues that such a requirement for authorisation will have given rise, since Hungary’s accession to the European Union, to discrimination based on nationality, which is prohibited by EU law. Moreover, Hungary acknowledged during the pre-litigation procedure that no decision of a Hungarian court has held that if a right of usufruct is acquired without a foreign exchange authorisation, that will result in the usufruct being null and void.34As regards, thirdly, the objective of cancelling rights of usufruct acquired before 1 January 2002 by non-residents or legal persons who, it is alleged, unlawfully circumvented the prohibition on the acquisition of property by acquiring those rights, the Commission considers that, if a national of a Member State other than Hungary chooses, for the purpose of investing in agricultural land or establishing himself in Hungary, a legal instrument available under the law of that Member State, that is merely the exercise of the freedoms laid down in Articles 49 and 63 TFEU and therefore cannot be classified as abuse.35Moreover, Hungary does not substantiate its claim that all the usufruct contracts affected by the contested provision were improperly concluded. In particular, it does not explain why that may be so in the case of the contracts received from complainants, which the Commission has produced before the Court; nor does it point to any contract that has been declared unlawful by a court. In addition, even if it is accepted that in certain cases the right of usufruct was created in order to circumvent the legislation in force, that finding cannot, in any event, be made general by means of a presumption that any person who created such a right acted with such an intention.36In the fourth place, the Commission submits that the contested provision infringes the principles of legal certainty and of the protection of legitimate expectations. The effect of those principles is that, in the event of cancellation of legal instruments enabling their holders to carry on an economic activity, it is not proportionate or justified to provide for a transitional period of only 4½ months, whilst abolishing, at the same time, the transitional period of 20 years laid down less than 1 year previously. It is also contrary to those principles not to provide for any specific compensation allowing the persons concerned to be compensated, under conditions determined in advance, for the loss of the consideration paid, the loss of value of the investments made and the loss of profit.37In the fifth place, the Commission maintains that, as the contested provision restricts the freedom of establishment and the free movement of capital and since Hungary relies on overriding reasons in the public interest in order to justify those restrictions, the provisions of the Charter are applicable in the present case.38The Commission submits that the contested provision infringes Article 17 of the Charter. Indeed, in its view, the cancellation of the rights of usufruct at issue amounts to a person being deprived of property, within the meaning of that article and also of Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).39The removal of rights of usufruct to the detriment of thousands of non-Hungarian citizens is not justified here by any permissible reason in the public interest and, even assuming it to be justifiable, that cancellation is not proportionate, account being taken, in particular, of the matters set out above. Nor has the contested provision made provision for the compensation that is required by Article 17 of the Charter, which is intended to ensure that compensation is paid, using efficient procedures, for the loss of in rem rights of considerable economic value.40Finally, the Commission submits that the persons concerned acted in good faith in using an investment opportunity that the existing legislative framework offered them and that both the practice of the administrative authorities responsible for land registration and that of the judicial authorities confirmed the legality of the rights of usufruct concerned.41In its defence, Hungary denies that there was any restriction of the freedom of establishment. It submits that judgment No 25 of 21 July 2015 of the Alkotmánybíróság (Constitutional Court) makes clear that the usufructuaries concerned did not sustain any financial loss, as that court held that, in general, Hungarian civil law affords such persons sufficient opportunity to defend their interests when the parties settle matters between them. Such usufructuaries can also continue to farm the land in future by acquiring, with the owner’s agreement, ownership thereof or by entering into a lease. As to the free movement of capital, Hungary contends that a restriction thereof has not been established, since the contested provision is limited to laying down a condition relating to a family tie with regard to just one of the instruments conferring a right to work arable land, purchase and leasing remaining possible.42In addition, Hungary disputes the existence of indirect discrimination based on nationality given that the contested provision applied without distinction to Hungarian nationals and nationals of other Member States, as is shown by the fact that, of over 100000 persons concerned by the provision, only 5058 were nationals of other States, including nationals of third States. The fact that the exception relating to the close family tie generally works in favour of Hungarian nationals follows from the fact that the land concerned is located in Hungary and its owners are usually Hungarian. That exception takes into account the fact that parents frequently buy property for their children over which they create a right of usufruct for themselves and the fact that a surviving spouse often inherits such a right.43Even if a restriction of the free movement of capital were established, Hungary considers it to be justified, first of all, by the agricultural policy objectives outlined in paragraph 31 above.44Next, Hungary argues that the illegality, ab initio, of the usufruct contracts at issue has been recognised by the Alkotmánybíróság (Constitutional Court), which stated, in judgment No 25 of 21 July 2015, that the objective of the contested provision was, inter alia, to ensure that the land register reflects legal relationships complying with the new rules applicable to agricultural land and to eliminate the legal effects of a practice by virtue of which the right of usufruct had been applied in a dysfunctional manner.45In the event that the parties opt to conclude a type of contract other than that which reflects their true intention, it follows from Paragraph 207(6) of a polgari törvénykönyvről szóló 1959. évi IV. törvény (Law No IV of 1959 establishing the civil code) that the contract is a sham and is null and void.46In view of the large number of acquisitions of rights of usufruct said to have been made, using various arrangements, by non-residents in the hope of being able, after Hungary’s accession to the European Union or following the removal of legal obstacles, to acquire ownership of the land concerned (acquisitions whose cancellations may be covered by the concept of public policy referred to in Article 65(1)(b) TFEU), the national legislature chose, for reasons of budgetary order and economy of judicial resources, to cancel those rights and remove them from the land register by means of legislation rather than leave them to be challenged piecemeal in the courts.47Lastly, Hungary considers that the contested provision is also justified by the aim of bringing to an end the unlawfulness of usufruct contracts concluded without the foreign exchange authorisation required under Law No XCV of 1995.48As regards the proportionality of and need for the restriction of the right to property, the Alkotmánybíróság (Constitutional Court) held, in judgment No 25 of 21 July 2015, that the cancellation of the rights of usufruct at issue was not akin to an expropriation, since the rights concerned were contractual in nature and could therefore be restricted, in the general interest, by legislative provisions and since the cancellation in question did not result in the State acquiring a right or in the creation of a new right for another person. It further contends that that measure is in the general interest since the owner’s land is freed from encumbrances and is then subject, as a result of social constraints, to obligations concerning productive land.49As to the fact that the transitional period is short, the economic operators concerned had no grounds for a legitimate expectation that the previous legislation would be maintained, as it was foreseeable that that legislation would evolve as a result of the expiry of the moratorium on the acquisition of land arising as a result of the 2003 Act of Accession.50Hungary further submits that a separate examination of the contested provision in the light of the Charter is not necessary and that, in any event, it is apparent from judgment No 25 of 21 July 2015 of the Alkotmánybíróság (Constitutional Court) that the cancellation of the rights of usufruct at issue is not an expropriation and that it is, in addition, justified by the general interest, whilst the civil law rules enable the former usufructuaries to obtain fair, comprehensive and timely compensation for the losses incurred. Moreover, Article 17 of the Charter is not applicable in the present case since the usufruct contracts that have been cancelled were concluded unlawfully and in bad faith. 1. Article 49 TFEU 51As regards the Commission’s request for a declaration that Hungary has failed to fulfil its obligations under Article 49 TFEU, it should be noted that, when the right to acquire, use or dispose of immovable property on the territory of another Member State is exercised as the corollary of the right of establishment, it generates capital movements (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 54).52As the Commission has argued, alluding, in this regard, to the case of nationals of Member States other than Hungary who are farming in that Member State and who have to that end acquired, directly or indirectly, a right of usufruct over agricultural land, that right constitutes, in such circumstances, the corollary of the exercise of those nationals’ right of establishment.53Although the contested provision is therefore capable, prima facie, of falling both within the scope of Article 49 TFEU and that of Article 63 TFEU, the fact remains that, in the present case, the restriction of the freedom of establishment arising from the contested provision which the Commission alleges in its action is the direct consequence of the restriction of the free movement of capital of which it also complains in this action. As the first alleged restriction is thus inextricably linked to the second, it is not necessary to consider the contested provision in the light of Article 49 TFEU (see, to that effect, judgments of 4 June 2002, Commission v Portugal, C‑367/98, EU:C:2002:326, paragraph 56; of 13 May 2003, Commission v Spain, C‑463/00, EU:C:2003:272, paragraph 86; and of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 98 and the case-law cited). 2. Article 63 TFEU and Article 17 of the Charter (a) The applicability of Article 63 TFEU and the existence of a restriction of the free movement of capital 54It should be recalled that capital movements include investments in real estate on the territory of a Member State by non-residents, as is clear from the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the [EC] Treaty (an article repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5); that nomenclature still has the same indicative value for the purposes of defining the notion of capital movements (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 56 and the case-law cited).55That notion encompasses, inter alia, investments in real estate relating to the acquisition of a usufruct over land, as is attested, in particular, by the clarification, contained in the explanatory notes in Annex I to Directive 88/361, that the category of investments in real estate covered by the directive includes the acquisition of rights of usufruct over buildings and land (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 57).56In the present case, the contested provision cancels rights of usufruct that were previously acquired over agricultural land, when the usufructuaries do not satisfy the requirement to which the acquisition of such rights is now subject under national law, namely the existence of a close family tie between the person acquiring the right of usufruct and the owner of the land concerned.57It is common ground, moreover, that the usufructuaries affected in this way by the contested provision include a great many nationals of Member States other than Hungary, who have acquired rights of usufruct either directly, or, indirectly, through a legal person created in Hungary.58By providing for the extinguishment, by operation of law, of rights of usufruct thus held over agricultural land by nationals of Member States other than Hungary, the contested provision restricts, by virtue of its very subject matter and by reason of that fact alone, the right of the persons concerned to the free movement of capital guaranteed by Article 63 TFEU. Indeed, the contested provision deprives those persons both of the possibility of continuing to enjoy their rights of usufruct, by preventing them, inter alia, from using and farming the land concerned or from letting it to tenant farmers and thereby making money from it, and of the possibility of alienating that right, for example by transferring it back to the owner. That provision is, moreover, liable to deter non-residents from making investments in Hungary in the future (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraphs 62 to 66). (b) Consideration of whether the restriction of the free movement of capital is justified and of the applicability of Article 17 of the Charter 59As is apparent from the Court’s case-law, a measure such as the contested provision, which restricts the free movement of capital, is permissible only if it is justified by overriding reasons in the public interest and observes the principle of proportionality, a condition that requires the measure to be appropriate for ensuring the attainment of the objective legitimately pursued and not to go beyond what is necessary in order for it to be attained (see, to that effect, judgment of 11 November 2010, Commission v Portugal, C‑543/08, EU:C:2010:669, paragraph 83).60Such a measure may likewise be justified by the reasons referred to in Article 65 TFEU provided that it complies with the principle of proportionality (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 77 and the case-law cited).61It must also be pointed out in this connection that national legislation is appropriate for ensuring attainment of the objective relied on only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 78 and the case-law cited).62In this case, Hungary has submitted that the contested provision is justified, respectively, by overriding reasons in the public interest that are recognised by the Court’s case-law, namely, objectives relating to the rational use of agricultural land, and by grounds envisaged by Article 65 TFEU. As regards the latter provision, Hungary relies, more specifically, on, first, the desire to correct infringements of national legislation concerning exchange controls and, second, the desire to combat abusive purchase practices on grounds of public policy.63In addition, it should be borne in mind that the fundamental rights guaranteed by the Charter are applicable in all situations governed by EU law and that they must, therefore, be complied with inter alia where national legislation falls within the scope of EU law (see, in particular, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 19 to 21, and of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 62).64That is inter alia the case where national legislation is such as to obstruct one or more of the fundamental freedoms guaranteed by the FEU Treaty and the Member State concerned relies on grounds envisaged in Article 65 TFEU, or on overriding reasons in the public interest that are recognised by EU law, in order to justify such an obstacle. In such a situation, the national legislation concerned can, according to settled case-law, fall within the exceptions thereby provided for only if it complies with the fundamental rights the observance of which is ensured by the Court (see, to that effect, judgments of 18 June 1991, ERT, C‑260/89, EU:C:1991:254, paragraph 43; of 27 April 2006, Commission v Germany, C‑441/02, EU:C:2006:253, paragraph 108 and the case-law cited; and of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 63).65In that regard, as has already been held by the Court, the use by a Member State of the exceptions provided for by EU law in order to justify an impediment to a fundamental freedom guaranteed by the Treaty must be regarded as ‘implementing Union law’ within the meaning of Article 51(1) of the Charter (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 64 and the case-law cited).66In this case, as has been stated in paragraphs 58 and 62 above, the contested provision constitutes a restriction of the free movement of capital and Hungary relies on the existence of overriding reasons in the public interest and of the grounds envisaged in Article 65 TFEU in order to justify that restriction. That being so, the compatibility of the contested provision with EU law must be examined in the light both of the exceptions thus provided for by the Treaty and the Court’s case-law, on the one hand, and of the fundamental rights guaranteed by the Charter, on the other hand (see, to that effect, judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraphs 65, 102 and 103), one of which is the right to property safeguarded by Article 17 of the Charter, which the Commission claims has been infringed in this case. (1) Whether persons have been deprived of property within the meaning of Article 17(1) of the Charter 67Under Article 17(1) of the Charter everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions and no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. In addition, the use of property may be regulated by law in so far as is necessary in the general interest.68In that regard, it should be noted, as a preliminary point, that, as the Court has already stated, Article 17 of the Charter is a rule of law intended to confer rights on individuals (see, to that effect, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 66).69As regards the substantive conditions set out in Article 17(1) of the Charter, it follows, first, from the Court’s case-law that the protection afforded by that provision concerns rights with an asset value creating an established legal position under the legal system concerned, enabling the holder to exercise those rights autonomously and for his or her own benefit (judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 34, and of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 60).70Contrary to what Hungary argued in that regard at the hearing, it is evident that, inasmuch as rights of usufruct over immovable property such as those at issue permit the usufructuary to use and enjoy that property, they have an asset value and confer on the usufructuary an established legal position, enabling him or her to exercise those rights of use and enjoyment independently, even if the possibility of transferring such rights is limited or precluded under the applicable national law.71Indeed, where such rights of usufruct over agricultural land are acquired contractually, a price will, as a rule, be paid. Those rights enable their holders to make use of such land, in particular for economic purposes, or even, depending on the circumstances, to lease the land to third parties; such rights therefore fall within the scope of Article 17(1) of the Charter.72According also to the case-law of the European Court of Human Rights relating to Article 1 of Protocol No 1 to the ECHR, which must be taken into account pursuant to Article 52(3) of the Charter in interpreting Article 17 thereof, as the minimum threshold of protection (see, to that effect, judgments of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 37; of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph 49; and of 12 February 2019, TC, C‑492/18 PPU, EU:C:2019:108, paragraph 57), rights of use or of usufruct over immovable property are to be regarded as ‘possessions’ that are eligible for the protection guaranteed by Article 1 of that protocol (see, in particular, ECtHR, 12 December 2002, Wittek v. Germany, CE:ECHR:2002:1212JUD003729097, §§ 43 to 46; ECtHR, 16 November 2004, Bruncrona v. Finland, CE:ECHR:2004:1116JUD004167398, § 78; and ECtHR, 9 February 2006, Athanasiou and Others v. Greece, CE:ECHR:2006:0209JUD000253102, § 22).73In the second place, contrary to Hungary’s contention, the rights of usufruct that were cancelled by the contested provision must be regarded as having been ‘lawfully acquired’ for the purposes of Article 17(1) of the Charter.74In that regard, it should be noted first of all that, as has been stated in paragraphs 8 and 9 above, the legislative amendments made in 1991 and 1994 for the purpose of prohibiting the acquisition of agricultural land by natural persons not possessing Hungarian nationality and by legal persons did not concern the acquisition of rights of usufruct over such land. It was in fact only from 1 January 2002 that the 1994 Law on productive land was amended so as also to preclude a right of usufruct over agricultural land being created by contract in favour of those natural and legal persons.75Accordingly, the rights of usufruct covered by the contested provision were created over agricultural land at a time when the creation of such rights was not prohibited by the national legislation in force.76Next, Hungary has not established either (i) that the national legislation concerning exchange controls that it invokes was intended to make acquisitions of rights of usufruct by non-residents subject to a foreign exchange authorisation without which such acquisitions would be invalid or (ii) that the rights of usufruct acquired by nationals of other Member States and cancelled by the contested provision were, under the applicable national law, null and void ab initio because the rules applicable to the acquisition of ownership of agricultural land had been circumvented.77In that regard, as the Commission noted and as Hungary acknowledged in the pre-litigation stage of the procedure, no judicial decision has found there to be such nullity in the case of rights of usufruct of this kind. On the contrary, the Commission mentioned before the Court a judgment of the Kúria (Supreme Court, Hungary) of 26 January 2010, the grounds of which clearly state that the mere creation of a right of usufruct over a piece of agricultural land does not imply that the parties intended to circumvent the legislation applicable to the sale of such land.78Moreover, although it admittedly appears from judgment No 25 of 21 July 2015 of the Alkotmánybíróság (Constitutional Court) that the contested provision sought, at least in part, to eliminate the legal effects of a practice for acquiring agricultural land by virtue of which the right of usufruct had been applied in a ‘dysfunctional manner’, such a finding does not appear to amount to a finding of abuse on the part of all the usufructuaries concerned. That judgment also points out that the contested provision had cancelled the rights of usufruct concerned as regards the future but had not classified any previous conduct as unlawful.79Finally, it is undisputed that the rights of usufruct acquired in this way by non-residents were entered as a matter of course in the land registries by the competent Hungarian authorities. As the parties acknowledge, registration of that kind requires that the document concerned be in the form of either a public document or a private document countersigned by a lawyer: under Paragraph 5 of the Law on the land register, the consequence of such registration is that the immovable asset concerned exists until there is proof to the contrary. The Commission also emphasises, without being challenged on this point by Hungary, that, under Paragraph 3 of that law in the version in force until 15 March 2014, such registration established rights.80Accordingly, it is not disputed that the persons concerned had generally been able peacefully to enjoy those rights, in their capacity as usufructuaries, and had, in some cases, done so for many years. They drew support, as regards the legal certainty attaching to the instruments creating their rights, from (i) the registration of those instruments at the land registries, (ii) the fact that the national authorities did not bring actions within a reasonable time with a view to seeking a declaration that those instruments were invalid and securing the deletion of their entries in the land registers and (iii) the fact that the existence of the instruments concerned was confirmed by legislation, given that Law No CCXIII of 2012, which was adopted a little more than a year before the contested provision, had provided that those instruments should continue to be valid until 1 January 2033.81In the third place, as the Advocate General has noted in points 136 and 157 of his Opinion, the rights of usufruct concerned amount to a fraction of ownership in the sense that they confer on their holders two essential attributes of the right to property, namely the right to use the property concerned and the right to collect the revenue from it. The contested provision cancels all the existing rights of usufruct over the land concerned, with the exception of those rights that were created between close members of the same family. Cancellation of such a kind thus, by definition, deprives the persons concerned — in a compulsory, complete and definitive manner — of those rights of usufruct to the benefit of the legal owners of the land.82It follows that the contested provision does not involve restrictions on the use of possessions but rather entails a person being deprived of his possessions within the meaning of Article 17(1) of the Charter.83In that regard, Hungary argued at the hearing that it remained possible for the usufructuaries thus dispossessed to continue to enjoy the land concerned by concluding a lease with the landowner. That argument cannot succeed. Indeed, a lease can be concluded only if the owner consents and conclusion of a lease does not restore to the former usufructuary the in rem right that was previously his, which is different in nature from the in personam right resulting from a lease agreement. It also imposes disadvantages upon him to which he would not have been subject had he retained his right.84In addition, by providing that ‘no one may be deprived of his or her possessions’, the second sentence of Article 17(1) of the Charter does not cover solely the taking of property for the purpose of transferring it to a public authority. Thus, contrary to what Hungary has also argued in this regard, the fact that the rights of usufruct concerned are not acquired by a public authority and that their extinction results in full ownership of the land concerned being restored to the owners has no impact whatsoever as regards the fact that the cancellation of those rights results in the former usufructuaries being deprived of the rights.85In that regard, it should also be observed that the European Court of Human Rights has held that the compulsory transfer, under a rule of national law, of property as between the owner of that property and the holder of a long lease over it can be regarded as a taking of property for the purposes of the second sentence of the first paragraph of Article 1 of Protocol No 1 to the ECHR (ECtHR, 21 February 1986, James and Others v. the United Kingdom, CE:ECHR:1986:0221JUD000879379,§§ 27, 30 and 38), as can the compulsory transfer of an agricultural estate from one person to another for the purposes of the rationalisation of agriculture (ECtHR, 21 February 1990, Håkansson and Sturesson v. Sweden, CE:ECHR:1990:0221JUD001185585, §§ 42 to 44).86It follows from the reasoning set out in paragraphs 69 to 85 above that the cancellation of usufructuary rights brought about by the contested provision constitutes a deprivation of property within the meaning of Article 17(1) of the Charter.87Although that provision does not lay down an absolute prohibition on persons being deprived of their possessions, it does, however, provide that such deprivation may occur only where it is in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss.88As regards those requirements, account must also be taken of the provision made by Article 52(1) of the Charter, under which limitations may be imposed on the exercise of the rights recognised by the Charter, as long as the limitations are provided for by law, respect the essence of those rights and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.89It follows from a reading of Article 17(1) of the Charter in conjunction with Article 52(1) thereof, first, that when the public interest is invoked in order to justify a person being deprived of his or her possessions, compliance with the principle of proportionality as required by Article 52(1) of the Charter must be ensured with regard to the public interest concerned and the objectives of general interest which the latter encompasses. Secondly, such a reading implies that, if there is no such public interest capable of justifying a deprivation of property, or — even if such a public interest is established — if the conditions laid down in the second sentence of Article 17(1) of the Charter are not satisfied, there will be an infringement of the right to property guaranteed by that provision. (2) Grounds of justification and the public interest (i) The justification founded on objectives of general interest related to the farming of agricultural land 90As is apparent from paragraphs 31 and 43 above, Hungary submits that, even if the contested provision is held to constitute a restriction of the free movement of capital, that provision — inasmuch as it makes any retention of existing rights of usufruct over agricultural land subject to the condition that the usufructuary be a close family member of the owner of the land concerned — is intended (i) to restrict ownership of agricultural land to persons who farm it and to prevent the land being acquired for purely speculative purposes, (ii) to allow such land to be farmed by new undertakings, (iii) to facilitate the creation of farms that are viable in size and competitive and (iv) to prevent a fragmentation of agricultural land as well as migration from rural areas and depopulation of the countryside.91In that regard, it should be observed that the Court has accepted that national legislation may restrict the free movement of capital on the ground of objectives such as those of preserving the farming of agricultural land by means of owner-occupancy and of encouraging a situation where agricultural property is lived on and farmed predominantly by the owners, as well as of preserving a permanent population in rural areas as a planning measure and of encouraging a reasonable use of the available land by resisting pressure on land (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 82 and the case-law cited).92The same is true of the objectives of maintaining a distribution of land ownership which allows the development of viable farms and sympathetic stewardship of green spaces and the countryside (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 83 and the case-law cited).93In the instant case, it must, however, be established, as has been observed in paragraph 59 above, whether the contested provision in fact pursues the legitimate general-interest objectives invoked and whether it is appropriate for ensuring the attainment of those objectives without going beyond what is necessary in order to attain them.94In that context, it must also be borne in mind that the reasons that may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State and by specific evidence substantiating its arguments (judgment of 26 May 2016, Commission v Greece, C‑244/15, EU:C:2016:359, paragraph 42 and the case-law cited).95In that regard, it should first be pointed out that the contested provision, inasmuch as it cancels all the existing rights of usufruct over agricultural land with the exception of those held by a close relation of the owner of that land, does not appear appropriate for the purpose of the objectives relied on by Hungary, with which it does not have any direct connection.96Indeed, Hungary has not established why the type of title a person has over agricultural land might allow it to be determined whether the person concerned farms the land him‑ or herself, whether he or she lives close to that land, whether he or she has acquired it for possibly speculative purposes or whether he or she would be likely to contribute to the development of viable and competitive agriculture, in particular by preventing a fragmentation of land.97Moreover, as the Court has already held, in paragraph 87 of the judgment of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157), the existence of the family tie that is required here between the usufructuary and the owner does is not capable of guaranteeing that the usufructuary will farm the land concerned him‑ or herself or that he or she has not acquired the right of usufruct at issue for purely speculative purposes. Similarly, it cannot be assumed that a person outside the owner’s family who has purchased a right of usufruct over such land would not be in a position to farm that land him- or herself and that the purchase would necessarily have been made for purely speculative purposes, without any intention of cultivating the land.98Nor has Hungary established how that requirement for a close family tie might be capable of contributing to the support and development of viable and competitive agriculture, in particular by preventing a fragmentation of land ownership, or of preventing migration from rural areas and depopulation of the countryside.99Secondly, the contested provision in any event goes beyond what is necessary in order to attain the objectives invoked by Hungary.100Indeed, it is apparent that other measures less restrictive of the free movement of capital than those laid down by the contested provision could have been adopted for the purpose of ensuring that the existence of a right of usufruct over land used for farming does not result in that land ceasing to be farmed. In that regard, it would, for example, have been possible to require the usufructuary to preserve such agricultural use, as the case may be, by actually farming the land concerned him‑ or herself, under conditions ensuring the viability of that farming (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraphs 92 and 93).101Hungary has thus failed to establish either that the contested provision genuinely pursues the general-interest objectives related to the farming of agricultural land which it invokes or, in any event, that it is appropriate for securing in a consistent manner the attainment of such objectives and is limited to the measures necessary to that end. (ii) The justification deriving from infringement of the national legislation concerning exchange controls 102Article 65(1)(b) TFEU states that the provisions of Article 63 TFEU are to be without prejudice to the right of Member States to take all requisite measures to prevent infringements of national law and regulations, to lay down procedures for the declaration of capital movements for the purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security. In accordance with Article 65(3) TFEU, such measures or procedures are not, however, to constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63 TFEU.103It should be recalled in that regard that, as a derogation from the fundamental principle of the free movement of capital, Article 65(1)(b) TFEU must be interpreted strictly (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 96 and the case-law cited).104In the present instance, Hungary contends that, since acquisitions of rights of usufruct over agricultural land took place before 1 January 2002 and were made by non-residents, within the meaning of the national legislation applicable at that time with regard to exchange controls, they were subject, under that legislation, to the grant of authorisation by the National Bank of Hungary. It argues that since foreign exchange authorisations were never sought for such acquisitions, the latter were invalid.105In that regard, it must first be observed that, as is apparent from paragraph 76 above, Hungary has not established that the national legislation concerning exchange controls to which it refers was intended to make acquisitions of rights of usufruct by non-residents subject to a foreign exchange authorisation without which such acquisitions would be invalid. Nor has it established that the adoption of the contested provision was driven by a desire to remedy infringements of that national legislation concerning exchange controls.106As regards the first of those matters, it should also be noted that, even if the initial validity of certain rights of usufruct cancelled by the contested provision was conditional upon possession of a foreign exchange authorisation, the Commission has produced before the Court extracts from Opinion No 1/2010 of 28 June 2010 and from a judgment (Case BH2000.556), both delivered by the Kúria (Supreme Court); a textual analysis of those documents reveals that, under Paragraph 237(2) of Law No IV of 1959 establishing the civil code, which was in force at the time when the national legislation concerning exchange controls that Hungary invokes was repealed, where a contract has been concluded without the authorisation necessary for the formation of the contract having been obtained, the contract must, as of the date on which such authorisation ceases to be necessary, be regarded as having been definitively and validly formed.107As regards the second aspect, it must be recalled that the contested provision provides for the systematic extinguishment of rights of usufruct held over agricultural land by persons who are unable to demonstrate a close family tie with the owner of the land concerned. However, that family-tie criterion is wholly unrelated to the national legislation concerning exchange controls. Moreover, it is undisputed, as is apparent from, inter alia, paragraph 42 above, that the cancellation of rights of usufruct brought about by the contested provision applies not only in the case of non-residents but also in the case of persons residing in Hungary and legal persons established in Hungary, who are not subject to the national legislation concerning exchange controls relied upon.108Secondly, and in any event, the cancellation, by operation of law, of rights of usufruct for which there were longstanding entries in the land registers, which took place more than 10 years after that national legislation on exchange controls was repealed, is not a proportionate measure. Indeed, other measures with less far-reaching effects could have been adopted for the purpose of penalising from the outset any infringements of the national legislation on exchange controls, such as administrative fines (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 106 and the case-law cited).109In view of all of the foregoing, Hungary has failed to establish (i) that the national legislation concerning exchange controls that it invokes is such as to have affected the validity of the rights of usufruct concerned by the contested provision, (ii) that the latter was adopted for the purpose of correcting any infringements of that exchange control legislation and (iii) in any event, and on the assumption that the contested provision actually had such an objective, that the cancellation of rights of usufruct effected by that provision was proportionate to that aim and permissible under Article 65 TFEU. (iii) The justification founded on the prevention, on the ground of protection of public policy, of practices designed to circumvent national law 110As has been recalled in paragraph 102 above, Article 65(1)(b) TFEU provides, inter alia, that the provisions of Article 63 TFEU are to be without prejudice to the right of Member States to take measures which are justified on grounds of public policy or public security.111In the present case, Hungary submits that the rights of usufruct cancelled by the contested provision were acquired by circumventing the statutory prohibition that prevented natural persons who were nationals of other Member States and legal persons from acquiring the ownership of agricultural land and that those rights were therefore void ab initio, which is why the Hungarian legislature decided to remedy such abuses by statute.112In that regard, it should be borne in mind that, so far as concerns the prevention of practices intended to circumvent national law, it is true that the Court has already accepted that a measure restricting a fundamental freedom may, in appropriate cases, be justified where it is designed to combat wholly artificial arrangements, aimed at circumventing the national legislation concerned (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 114 and the case-law cited).113However, in the first place and as has already been stated in paragraphs 76 to 80 above, Hungary has not established that the rights of usufruct affected by the contested provision — namely those that were created, before 2002, over agricultural land by legal persons and by nationals of other Member States — were invalid under the applicable national law because certain rules of national law had been circumvented.114In the second place, according to the case-law a justification such as that mentioned in paragraph 112 above is permissible only in so far as it specifically targets artificial arrangements aimed at circumventing the national legislation concerned. This rules out in particular any enactment of a general presumption of abusive practices that would be sufficient to justify a restriction on the free movement of capital (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraphs 115 and 116 and the case-law cited).115In order to comply with the principle of proportionality, a measure pursuing such a specific objective of combating wholly artificial arrangements should, on the contrary, enable the national courts to carry out a case-by-case examination, having regard to the particular features of each case and taking objective elements as its basis, in order to assess the abusive or fraudulent conduct of the persons concerned (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 117 and the case-law cited).116It must be held that the contested provision does not satisfy any of the conditions set out in paragraphs 114 and 115 above.117First, judgment No 25 of 21 July 2015 of the Alkotmánybíróság (Constitutional Court), mentioned in paragraph 78 above, does not contain any finding of abuse on the part of the usufructuaries concerned and states that the cancellation of the rights of usufruct by the contested provision was above all considered necessary for the purpose of achieving fully the national strategic objective pursued by the new legal arrangement put in place, namely that productive land was to be owned solely by the natural persons who work it.118Accordingly, it has not been established that the contested provision pursues the specific aim of combating conduct that consisted in the creation of artificial arrangements aimed at circumventing national legislation relating to acquisition of agricultural land.119Secondly, and in any event, it cannot reasonably be inferred from the mere fact that the holder of a right of usufruct over a parcel of agricultural land is a legal person or a natural person who does not have the status of close relation of the owner of that land that the conduct of such a person when acquiring such a right of usufruct constituted an abuse. As has been pointed out in paragraph 114 above, the enactment of a general presumption of abusive practices cannot be allowed (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 121).120Thus, other measures less restrictive of the free movement of capital, such as penalties or specific actions for a declaration of invalidity before the national courts in order to combat any circumventions of the applicable national legislation that are established, could, provided that they comply with the other requirements arising from EU law, be considered for the purpose of combating those abusive practices (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 122).121In this connection, Hungary’s line of argument that is based on budgetary considerations and considerations relating to the efficient use of judicial resources cannot be accepted. It is settled case-law that aims of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty. The same is true of considerations of a purely administrative nature (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 123 and the case-law cited).122It follows that the restriction on the free movement of capital that is brought about by the contested provision cannot be justified by the desire to combat purely artificial arrangements aimed at circumventing the applicable national legislation concerning the acquisition of agricultural property. (iv) Absence of a public-interest ground and of any arrangements for compensation, as referred to in Article 17 of the Charter 123As regards the deprivation of property, within the meaning of Article 17 of the Charter, to which the cancellation of the rights of usufruct concerned gives rise, it should be added, taking account of the requirements set out in paragraphs 87 to 89 above which must be met if such deprivation is to be lawful, that the cancellation is provided for by law.124Furthermore, although objectives of general interest relating to the farming of agricultural land, such as those mentioned in paragraphs 91 and 92 above, or objectives such as those intended to remedy infringements of national legislation on exchange controls or to combat abusive practices aimed at circumventing applicable national law, may certainly fall within one or more public-interest grounds, within the meaning of that provision, it is, however, apparent from paragraph 101 above that in the present case Hungary has not established either that the cancellation of the rights of usufruct effected by the contested provision genuinely pursues the above-mentioned objectives relating to the working of agricultural land or, in any event, that it is appropriate for attaining those objectives or necessary to that end. Moreover, in view of the findings made in paragraphs 109 and 122 above respectively, a cancellation of rights of usufruct such as that effected by the contested provision cannot be regarded as having been enacted in order to remedy infringements of national law relating to exchange controls or to combat such abusive practices, as those infringements and practices have not been established; nor, in any event, can such a cancellation be considered to satisfy the requirement of proportionality referred to in paragraph 89 above.125In any event, the contested provision does not satisfy the requirement laid down in the second sentence of Article 17(1) of the Charter, according to which fair compensation must be paid in good time for a deprivation of property such as the loss of the rights of usufruct concerned.126According to the words actually used in that provision, a person may be deprived of his or her property ‘only in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for [its] loss’, meaning that such compensation, which is thus one of the conditions laid down by the Charter if a person is to be deprived of his or her property, must be provided for by law. Accordingly, a rule of national law depriving a person of his or her property must provide, in a clear and precise manner, for that loss to give rise to an entitlement to compensation and for the conditions of that compensation. It cannot but be noted that the contested provision contains no terms ensuring that the usufructuaries who have been deprived of their property receive compensation or laying down the arrangements for such compensation.127In that regard, the possibility of referring to the general rules of civil law, which Hungary mentions in its defence, cannot satisfy the requirements arising under Article 17(1) of the Charter. Moreover, even if it were legally possible for a Member State, under that provision, to make private parties responsible for the payment of compensation for deprivations of property which have been caused exclusively by the State itself, a reference of that kind to civil law would in the present case place on the usufructuaries the burden of having to pursue the recovery, by means of procedures that may prove lengthy and expensive, of any compensation which might be payable to them by the landowner. Such rules of civil law do not make it possible to determine easily and in a sufficiently precise and foreseeable manner whether compensation will in fact be able to be obtained at the end of such procedures nor do they disclose the nature of any compensation there may be.128In this regard, it should also be noted that, with regard to Article 1 of Protocol No 1 to the ECHR, it is apparent from the case-law of the European Court of Human Rights that that Court considers that, when the possessions of an individual are expropriated, a procedure must exist which ensures an overall assessment of the consequences of expropriation, namely, an award of compensation that is related to the value of the expropriated possession, a determination of the recipients of compensation and any other issues relating to the expropriation (ECtHR, 9 October 2003, Biozokat A.E. v. Greece, CE:ECHR:2003:1009JUD006158200, § 29).129Having regard to the findings made in paragraphs 123 to 128 above, it must be held that the deprivation of property effected by the contested provision cannot be justified on the ground that it is in the public interest; nor are any arrangements in place whereby fair compensation is paid in good time. Accordingly, that provision infringes the right to property guaranteed by Article 17(1) of the Charter. (c) Conclusion 130In view of all the foregoing, it must be concluded, first, that Hungary has not established either (i) that the cancellation effected by the contested provision of rights of usufruct held directly or indirectly by nationals of Member States other than Hungary is intended to secure the attainment of objectives in the general interest that are recognised by the case-law of the Court or mentioned in Article 65(1)(b) TFEU or (ii) that that cancellation is appropriate and coherent, or indeed limited to the measures necessary, for the purpose of seeking to secure such objectives. Secondly, that cancellation does not comply with Article 17(1) of the Charter. Consequently, the restrictions on the free movement of capital thus arising from the deprivation of property acquired using capital protected by Article 63 TFEU cannot be justified.131Accordingly, the Court finds that, by adopting the contested provision and thereby cancelling, by operation of law, the rights of usufruct over agricultural land located in Hungary that are held, directly or indirectly, by nationals of other Member States, Hungary has failed to fulfil its obligations under Article 63 TFEU in conjunction with Article 17 of the Charter. Costs 132Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and Hungary has been unsuccessful, the latter must be ordered to pay the costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that, by adopting Paragraph 108(1) of mező- és erdőgazdasági földek forgalmáról szóló 2013. évi CXXII. törvénnyel összefüggő egyes rendelkezésekről és átmeneti szabályokról szóló 2013. évi CCXII. törvény (Law No CCXII of 2013 laying down various provisions and transitional measures concerning Law No CXXII of 2013 on transactions in agricultural and forestry land) and thereby cancelling, by operation of law, the rights of usufruct over agricultural and forestry land located in Hungary that are held, directly or indirectly, by nationals of other Member States, Hungary has failed to fulfil its obligations under Article 63 TFEU in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union; 2. Orders Hungary to pay the costs. [Signatures]( *1 ) Language of the case: Hungarian. | 1618d-6cc5dcd-4666 | EN |
The provisions of the Refugee Directive relating to the revocation of and refusal to grant refugee status on grounds connected with the protection of the security or the community of the host Member State are valid | 14 May 2019 ( *1 )(Reference for a preliminary ruling — Area of freedom, security and justice — Asylum policy — International protection — Directive 2011/95/EU — Refugee status — Article 14(4) to (6) — Refusal to grant or revocation of refugee status in the event of danger to the security or the community of the host Member State — Validity — Article 18 of the Charter of Fundamental Rights of the European Union — Article 78(1) TFEU — Article 6(3) TEU — Geneva Convention)In Joined Cases C‑391/16, C‑77/17 and C‑78/17,THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) in Case C‑391/16, made by decision of 16 June 2016, received at the Court on 14 July 2016, and from the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) in Cases C‑77/17 and C‑78/17, made by decisions of 8 February 2017 and 10 February 2017, received at the Court on 13 February 2017, in the proceedings M v Ministerstvo vnitra (C‑391/16),and X (C‑77/17), X (C‑78/17) Commissaire général aux réfugiés et aux apatrides, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, A. Prechal, T. von Danwitz (Rapporteur) and C. Toader, Presidents of Chambers, E. Levits, L. Bay Larsen, M. Safjan, D. Šváby, C.G. Fernlund and S. Rodin, Judges,Advocate General: M. Wathelet,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 6 March 2018,after considering the observations submitted on behalf of:–M, by J. Mašek, advokát,X (C‑77/17), by P. Vanwelde and S. Janssens, avocats,X (C‑78/17), by J. Hardy, avocat,the Czech Government, by M. Smolek, J. Vláčil and A. Brabcová, acting as Agents,the Belgian Government, by C. Pochet, M. Jacobs and C. Van Lul, acting as Agents,the German Government, by T. Henze and R. Kanitz, acting as Agents,the French Government, by E. Armoët, E. de Moustier and D. Colas, acting as Agents,the Hungarian Government, by M.Z. Fehér, G. Koós, Z. Biró-Tóth and M. Tátrai, acting as Agents,the Netherlands Government, by M.A.M. de Ree and M.K. Bulterman, acting as Agents,the United Kingdom Government, by S. Brandon, acting as Agent, and by D. Blundell, Barrister,the European Parliament, by K. Zejdová, O. Hrstková Šolcová and D. Warin, acting as Agents,the Council of the European Union, by E. Moro, A. Westerhof Löfflerová, S. Boelaert, M. Chavrier and J. Monteiro, acting as Agents,the European Commission, by M. Šimerdová and M. Condou-Durande, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 21 June 2018,gives the following Judgment 1These requests for a preliminary ruling concern the interpretation and validity of Article 14(4) to (6) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), which entered into force on 9 January 2012, in the light of Article 78(1) TFEU, Article 6(3) TEU and Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’).2The requests have been made in three sets of proceedings between, in the first case (Case C‑391/16), M and the Ministerstvo vnitra (Ministry of the Interior, Czech Republic) concerning the decision revoking his right to asylum, in the second case (Case C‑77/17), X and the Commissaire général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons, Belgium) (‘the Commissaire général’) concerning the decision refusing to recognise him as having refugee status and to grant him subsidiary protection, and, in the third case (Case C‑78/17), X and the Commissaire général concerning the decision withdrawing his refugee status. Legal context International law 3The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)) (‘the Geneva Convention’), entered into force on 22 April 1954. It was supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Protocol’).4All the Member States are contracting parties to the Geneva Convention. By contrast, the European Union is not a contracting party to that convention.5The preamble to the Geneva Convention notes that the United Nations High Commissioner for Refugees (UNHCR) is responsible for supervising the application of international conventions guaranteeing the protection of refugees and provides that the States commit to cooperating with the UNHCR in the exercise of its duties and in particular to facilitating its duty of supervising the application of those instruments.6Article 1(A) of that convention provides:‘For the purposes of the present Convention, the term “refugee” shall apply to any person who:…(2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.’7Article 1(C) of the Geneva Convention provides:‘This Convention shall cease to apply to any person falling under the terms of section A if:(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or(2) Having lost his nationality, he has voluntarily re-acquired it; or(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence;…’8The first paragraph of Article 1(D) of that convention states:‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.’9Article 1(E) of that convention provides:‘This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.’10Article 1(F) of that convention is worded as follows:‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.’11Under Article 3 of the Geneva Convention:‘The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.’12Article 4 of that convention provides:‘The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.’13Article 16(1) of that convention provides:‘A refugee shall have free access to the courts of law on the territory of all Contracting States.’14Article 22(1) of the Geneva Convention states:‘The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.’15Under Article 31 of that convention:‘1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.’16Article 32 of that convention provides:‘1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before [a] competent authority or a person or persons specially designated by the competent authority.3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.’17Article 33 of that convention provides:‘1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’18Under Article 42(1) of the Geneva Convention:‘At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36-46 inclusive.’ European Union law Directive 2011/95 19Directive 2011/95, adopted on the basis of Article 78(2)(a) and (b) TFEU, repealed Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).20Recitals 3, 4, 10, 12, 16, 17, 21, 23 and 24 of Directive 2011/95 are worded as follows:‘(3)The European Council at its special meeting in Tampere on 15 and 16 October 1999 agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention …, as supplemented by the … Protocol …, thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.(4)The Geneva Convention and the Protocol provide the cornerstone of the international legal regime for the protection of refugees.(10)In the light of the results of the evaluations undertaken, it is appropriate, at this stage, to confirm the principles underlying [Directive 2004/83] as well as to seek to achieve a higher level of approximation of the rules on the recognition and content of international protection on the basis of higher standards.(12)The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for those persons in all Member States.(16)This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter .... In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35 of that Charter, and should therefore be implemented accordingly.(17)With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party, including in particular those that prohibit discrimination.(21)The recognition of refugee status is a declaratory act.(23)Standards for the definition and content of refugee status should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention.(24)It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.’21Under Article 1 of Directive 2011/95:‘The purpose of this Directive is to lay down standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.’22Article 2 of that directive provides:‘For the purposes of this Directive the following definitions shall apply:“international protection” means refugee status and subsidiary protection status as defined in points (e) and (g);“beneficiary of international protection” means a person who has been granted refugee status or subsidiary protection status as defined in points (e) and (g);(d)“refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;(e)“refugee status” means the recognition by a Member State of a third-country national or a stateless person as a refugee;23Chapter II of Directive 2011/95, entitled ‘Assessment of applications for international protection’, includes Articles 4 to 8 of that directive. Those articles set out the rules laying down the way in which Member States should assess such applications.24Chapter III of Directive 2011/95, entitled ‘Qualification for being a refugee’, includes Articles 9 to 12 of that directive. Regarding Articles 9 and 10 of that directive in particular, these set out, respectively, the conditions under which an act is to be regarded as an act of persecution for the purposes of Article 1(A) of the Geneva Convention and the elements which must be taken into account by the Member States when assessing the reasons for persecution.25Article 11 of Directive 2011/95, entitled ‘Cessation’, provides:‘1. A third-country national or a stateless person shall cease to be a refugee if he or she:has voluntarily re-availed himself or herself of the protection of the country of nationality; orhaving lost his or her nationality, has voluntarily re-acquired it; orhas acquired a new nationality, and enjoys the protection of the country of his or her new nationality; orhas voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution; orcan no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality; or(f)being a stateless person, he or she is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual residence.2. ...3. Points (e) and (f) of paragraph 1 shall not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of the country of nationality or, being a stateless person, of the country of former habitual residence.’26Article 12 of that directive, entitled ‘Exclusion’, provides:‘1. A third-country national or a stateless person is excluded from being a refugee if:he or she falls within the scope of Article 1(D) of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive;he or she is recognised by the competent authorities of the country in which he or she has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, or rights and obligations equivalent to those.2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.’27Article 13 of Directive 2011/95, which appears in Chapter IV thereof, entitled ‘Refugee status’, is entitled ‘Granting of refugee status’ and provides:‘Member States shall grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with Chapters II and III.’28Article 14 of that directive, which also appears in Chapter IV thereof, is entitled ‘Revocation of, ending of or refusal to renew refugee status’ and provides:‘1. Concerning applications for international protection filed after the entry into force of [Directive 2004/83], Member States shall revoke, end or refuse to renew the refugee status of a third-country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body if he or she has ceased to be a refugee in accordance with Article 11.3. Member States shall revoke, end or refuse to renew the refugee status of a third-country national or a stateless person if, after he or she has been granted refugee status, it is established by the Member State concerned that:he or she should have been or is excluded from being a refugee in accordance with Article 12;his or her misrepresentation or omission of facts, including the use of false documents, was decisive for the granting of refugee status.4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when:there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.’5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken.6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention in so far as they are present in the Member State.’29Chapter VII of Directive 2011/95, entitled ‘Content of international protection’, includes Articles 20 to 35 thereof. Article 20(1) and (2) of that directive states:‘1. This Chapter shall be without prejudice to the rights laid down in the Geneva Convention.2. This Chapter shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated.’30Article 21 of that directive provides:‘1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.2. Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; orhe or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.3. Member States may revoke, end or refuse to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies.’31The first subparagraph of Article 24(1) of Directive 2011/95 provides:‘As soon as possible after international protection has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least 3 years and renewable, unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3).’32Article 28 of that directive provides:‘1. Member States shall ensure equal treatment between beneficiaries of international protection and nationals in the context of the existing recognition procedures for foreign diplomas, certificates and other evidence of formal qualifications.2. Member States shall endeavour to facilitate full access for beneficiaries of international protection who cannot provide documentary evidence of their qualifications to appropriate schemes for the assessment, validation and accreditation of their prior learning. Any such measures shall comply with Articles 2(2) and 3(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications [(OJ 2005 L 255, p. 22)].’33Article 34 of Directive 2011/95 is worded as follows:‘In order to facilitate the integration of beneficiaries of international protection into society, Member States shall ensure access to integration programmes which they consider to be appropriate so as to take into account the specific needs of beneficiaries of refugee status or of subsidiary protection status, or create pre-conditions which guarantee access to such programmes.’ National law Czech law 34The Zákon č. 325/1999 Sb., o azylu (Law No 325/1999 on asylum), in the version applicable to the facts in the main proceedings (‘the Law on asylum’), governs the granting and revocation of international protection.35Under Article 2(6) of that Law, a refugee for the purposes of that Law (azylant) means ‘a foreign national who has been granted the right to asylum under the present Law for the duration of the validity of the decision granting the right to asylum’. According to the explanation provided by the referring court, if a person’s right to asylum is revoked, that person ceases to be a refugee (azylant) and to enjoy the rights provided for by that Law.36Under Article 17(1)(i) of the Law on asylum, the right to asylum is to be revoked ‘if there are legitimate grounds to consider that the refugee represents a danger to the security of the State’. In addition, Article 17(1)(j) of that Law provides that the right to asylum is to be revoked ‘if the refugee has been convicted by a final judgment of a particularly serious crime and therefore represents a danger to the security of the State’.37Under Article 28(1) of the Law on asylum, the right to asylum is one of the forms of international protection granted to a foreign national in the territory of the Czech Republic. Belgian law 38Article 48/3(1) of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Moniteur belge du 31 décembre 1980, p. 14584) (Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals) (Belgian Official Journal of 31 December 1980, p. 14584), in the version applicable to the facts in the main proceedings (‘the Law of 15 December 1980’), provides:‘Refugee status shall be granted to foreign nationals who satisfy the conditions laid down in Article 1 of the [Geneva Convention], as amended by the [Protocol].’39Article 48/4(1) of that Law provides:‘Subsidiary protection status shall be granted to foreign nationals who do not qualify as refugees and to whom Article 9ter is not applicable, and in respect of whom there are serious grounds for believing that, if returned to their country of origin or, in the case of stateless persons, to their country of former habitual residence, they would face a genuine risk of suffering serious harm as referred to in paragraph 2, and who are unable, or, owing to such risk, are unwilling to avail themselves of the protection of that country, in so far as those persons are not covered by the exclusion clauses in Article 55/4.’40Article 52/4 of that Law states:‘Where a foreign national who has applied for asylum under Articles 50, 50bis, 50ter or 51 constitutes a danger to the community, having been convicted by a final judgment of a particularly serious offence, or where there are reasonable grounds for regarding him as a danger to national security, the Minister or his authorised representative shall communicate all evidence to that effect to the Commissaire général without delay.The [Commissaire général] may refuse to grant refugee status where the foreign national constitutes a danger to the community, having been convicted by a final judgment of a particularly serious offence, or where there are reasonable grounds for regarding him as a danger to national security. In such cases the [Commissaire général] shall give an opinion as to whether a removal order is compatible with Articles 48/3 and 48/4.The Minister may require the person concerned to reside in a particular place while his application is being reviewed, if he considers this necessary in order to protect public order or national security.In exceptionally serious circumstances, the Minister may temporarily hand the person concerned over to the Government, if he considers this necessary in order to protect public order or national security.’41Under Article 55/3/1 of that Law:‘§ 1. The [Commissaire général] may withdraw refugee status where a foreign national, having been convicted by final judgment of a particularly serious offence, represents a danger to the community or where there are reasonable grounds for regarding him as a danger to national security.§ 3. Where he withdraws refugee status pursuant to paragraph 1 or paragraph 2(1), the Commissaire général shall give an opinion, in his decision, as to whether a removal order is compatible with Articles 48/3 and 48/4.’42Under the second paragraph of Article 55/4 of the Law of 15 December 1980:‘A foreign national shall also not be eligible for subsidiary protection status where he represents a danger to the community or to national security.’ The disputes in the main proceedings and the questions referred for a preliminary ruling Case C‑391/16 43By decision of 21 April 2006, the Ministry of the Interior granted M, originally from Chechnya (Russia), the right to asylum, on the ground that he had legitimate reasons to fear persecution in his State of nationality on account of his race, religion, nationality, membership of a particular social group or political opinion.44Before receiving the right to asylum, M had committed a robbery for which he had received a three-year custodial sentence. After being granted the right to asylum he had also received a nine-year custodial sentence for repeat offences of robbery and extortion, to be served in a high security detention centre. In light of those circumstances, the Ministry of the Interior decided on 29 April 2014 to revoke M’s right to asylum and not to grant him subsidiary protection, on the ground that he had been convicted by final judgment of a particularly serious crime and that he represented a danger to the security of the State.45M brought an action against that decision before the Městský soud v Praze (Prague City Court, Czech Republic). Since that action was dismissed, M lodged an appeal on a point of law before the referring court.46That court questions, in particular, the validity of Article 14(4) and (6) of Directive 2011/95 in the light of Article 18 of the Charter, Article 78(1) TFEU and the general principles of EU law under Article 6(3) TEU, owing to the possibility that those provisions of Directive 2011/95 infringe the Geneva Convention.47In that regard, the referring court makes reference to a UNHCR report published on 29 July 2010, entitled ‘UNHCR comments on the European Commission’s proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (COM(2009)551 of 21 October 2009)’, in which the UNHCR repeated the doubts it had previously expressed concerning the compatibility of Article 14(4) and (6) of Directive 2004/83 with the Geneva Convention.48It states that it is apparent from that report that Article 14(4) of that proposal for a directive, on which Article 14(4) of Directive 2011/95 is based, extends the grounds for exclusion from refugee status beyond the exclusion and cessation clauses laid down in Article 1 of the Geneva Convention, even though those clauses are exhaustive and Article 42(1) of that convention prohibits the Contracting States from making reservations to Article 1 thereof. It is also apparent from that report that, although Article 33 of the Geneva Convention permits the refoulement of a person to his country of origin or to another country, that provision has no effect on that person’s refugee status in his country of residence. The referring court emphasises that the doubts expressed by the UNHCR are shared by, inter alia, the European Council on Refugees and Exiles, the International Association of Refugee and Migration Judges, and the Ombudsman of the Czech Republic.49The referring court adds, however, that, according to a part of the legal literature, Directive 2011/95 is consistent with the Geneva Convention. It notes, in that regard, that, according to the explanatory memorandum accompanying the proposal for a directive referred to in paragraph 47 above, the aim of Directive 2011/95 is, inter alia, to ensure the full and inclusive application of that convention. That directive is more detailed and makes a distinction, in Article 2(d) and (e) thereof, between ‘refugee’ and ‘refugee status’. The granting of refugee status, for the purposes of Directive 2011/95, results in a higher level of protection than that provided for in the Geneva Convention. Thus, a person whose refugee status is revoked pursuant to Article 14(4) of Directive 2011/95 can no longer enjoy the rights and benefits deriving from that directive, except for certain minimum rights enshrined in that convention. That provision seems to be based on the idea that those persons cannot be refouled to their country of origin, even though they satisfy the conditions of Article 33(2) of that convention. Those persons are therefore to be tolerated in the host Member State and have a ‘light-refugee’ status.50Although the Court has previously ruled, in the judgment of 24 June 2015, H. T. (C‑373/13, EU:C:2015:413, paragraphs 71 and 94 to 98), on the connection between Article 33(2) of the Geneva Convention and Directive 2011/95, it has not yet examined the issue of the compatibility of Article 14(4) and (6) of that directive with Article 1(C) and Article 42(1) of the Geneva Convention; nor, by extension, has it examined the issue of the compatibility of those provisions with Article 78(1) TFEU, Article 18 of the Charter, and the general principles of EU law under Article 6(3) TEU.51Regarding Article 14(6) of Directive 2011/95, which guarantees that persons covered by Article 14(4) of that directive enjoy certain rights provided for in the Geneva Convention, the referring court notes that, according to the Ombudsman of the Czech Republic, the Law on asylum does not transpose Article 14(6) of that directive. Thus, according to that ombudsman, the revocation of the right to asylum pursuant to Article 17(1)(i) and (j) of the Law on asylum infringes EU law. In that regard, the referring court indicates that it cannot be ruled out from a detailed analysis of the Czech legal order that, in some individual cases, none of the rights derived from Articles 3, 4, 16, 22, 31, 32 or 33 of the Geneva Convention are guaranteed for the persons concerned. However, in the case in the main proceedings, the applicant has the possibility of asserting those rights in the Czech Republic.52In those circumstances, the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Is Article 14(4) and (6) of [Directive 2011/95] invalid on the grounds that it infringes Article 18 of [the Charter], Article 78(1) [TFEU] and the general principles of EU law under Article 6(3) [TEU]?’ Case C‑77/17 53On 10 March 2010 the tribunal de première instance de Bruxelles (Brussels Court of First Instance, Belgium) imposed on X, an Ivorian national, a partly suspended custodial sentence of 30 months for intentional assault and battery, possession of a bladed weapon without proper reason and possession of a prohibited weapon. In addition, on 6 December 2011 X was sentenced by the Cour d’appel de Bruxelles (Brussels Court of Appeal, Belgium) to four years’ imprisonment for rape of a minor aged over 14 years and under 16 years.54On 3 November 2015 X submitted an application for asylum in support of which he claimed fears of persecution in connection with the fact that his father and members of his family were closely linked to the former Ivorian regime and the former President Laurent Gbagbo.55By decision of 19 August 2016, the Commissaire général refused, on the basis of the second paragraph of Article 52/4 of the Law of 15 December 1980, to grant X refugee status, because of the offences he had committed in Belgium. The Commissaire général considered, in particular, that, in view of the particularly serious nature of those offences and the fact that they were repeat offences, X constituted a danger to the community for the purposes of that provision. For the same reasons, he considered that it was necessary to exclude X from subsidiary protection under the second paragraph of Article 55/4 of that Law. However, pursuant to Article 52/4 of that Law, the Commissaire général issued an opinion to the effect that, in view of his well-founded fears of persecution, X could not be directly or indirectly refouled to Côte d’Ivoire, as such a removal order was incompatible with Articles 48/3 and 48/4 thereof.56X brought an action against that decision before the referring court.57That court notes that the second paragraph of Article 52/4 of the Law of 15 December 1980, on which the decision at issue is based, transposes Article 14(5) of Directive 2011/95 into Belgian law.58The referring court questions the validity of that provision in the light of Article 18 of the Charter and Article 78(1) TFEU. Those provisions require the Union to comply with the Geneva Convention, meaning that secondary EU legislation must comply with that convention. That convention very clearly states, in Article 1(A) thereof, the persons who come within the definition of a ‘refugee’ and neither Article 1(F) nor any other provision thereof permits a general and definitive refusal to grant refugee status to a person solely on the ground that that person represents a danger to national security or constitutes a serious danger to the community of the host Member State. Article 14(5) of Directive 2011/95 provides for the possibility of refusing to grant that status on one of those grounds, which correspond to the situations referred to in Articles 32 and 33 of that convention, although those articles govern the expulsion of refugees and not the conditions for the granting of refugee status.59Thus, the issue arises as to whether Article 14(5) of Directive 2011/95 introduces a new ground for exclusion from refugee status not provided for in the Geneva Convention. The act of providing for a new exclusion clause constitutes a substantive modification of that convention, which is contrary to the principles of international law. If the Geneva Convention had intended to exclude or refuse to grant refugee protection for reasons connected with national security, public order or danger to the community of the host Member State, it would have made explicit provision for this, as it did regarding, inter alia, serious non-political crimes committed outside the host Member State.60Account should also be taken of the potentially far-reaching consequences of that exclusion clause, since it involves the loss of rights and benefits connected with refugee status. Thus, in its judgment of 24 June 2015, H. T. (C‑373/13, EU:C:2015:413, paragraph 95), the Court clearly recalled that the revocation of a residence permit and the revocation of refugee status are two distinct issues with different implications. Indeed, the UNHCR, in an opinion entitled ‘UNHCR Annotated Comments on [Directive 2004/83]’ published in January 2005, was particularly critical with respect to identical provisions set out in Directive 2004/83.61In those circumstances, the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Must Article 14(5) of [Directive 2011/95] be interpreted as creating a new ground for exclusion from refugee status provided for in Article 13 of the directive and, consequently, from Article 1(A) of the Geneva Convention?(2)If the answer to [the first question] is yes, is Article 14(5) of Directive 2011/95, thus interpreted, compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, the exclusion clause laid down in Article 1(F) of the Convention being exhaustively worded and requiring strict interpretation?(3)If the answer to [the first question] is no, must Article 14(5) of [Directive 2011/95] be interpreted as introducing a ground for refusing refugee status which is not provided for in the Geneva Convention, compliance with which is required by Article 18 of [the Charter] and Article 78(1) [TFEU]?If the answer to [the third question] is yes, is Article 14(5) of [Directive 2011/95] compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, as it introduces a ground for refusing refugee status without any consideration of fear of persecution, as required by Article 1(A) of the Geneva Convention?(5)If the answer to [the first and third questions] is no, how can Article 14(5) of [Directive 2011/95] be interpreted in a manner consistent with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention?’ Case C‑78/17 62By decision of 21 February 2007, the Commissaire général recognised X, a national of the Democratic Republic of the Congo, as a refugee.63On 20 December 2010 X was sentenced by the Cour d’assises de Bruxelles (Brussels Assize Court, Belgium) to 25 years’ imprisonment for homicide and aggravated robbery. By decision of 4 May 2016, the Commissaire général withdrew his refugee status pursuant to paragraph 1 of Article 55/3/1 of the Law of 15 December 1980, on the ground, inter alia, that, in the light of the particularly serious nature of the offences committed, X constituted a danger to the community for the purposes of that provision. In addition, under paragraph 3 of Article 55/3/1 of that Law, the Commissaire général issued an opinion to the effect that the removal of X was compatible with Articles 48/3 and 48/4 thereof in so far as the fears that X had raised in 2007 were no longer relevant.64X brought an action against that decision of the Commissaire général before the referring court. That court notes that Article 55/3/1 of the Law of 15 December 1980, on which that decision is based, transposes Article 14(4) of Directive 2011/95 into Belgian law. As in Case C‑77/17 and on the same grounds as those put forward in that case, the referring court considers that there are several grounds for questioning the validity of Article 14(4) of Directive 2011/95 in the light of Article 18 of the Charter and Article 78(1) TFEU.65Must Article 14(4) of [Directive 2011/95] be interpreted as creating a new ground for exclusion from refugee status provided for in Article 13 of the Directive and, consequently, from Article 1(A) of the Geneva Convention?If the answer to [the first question] is yes, is Article 14(4) of Directive 2011/95, thus interpreted, compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, the exclusion clause laid down in Article 1(F) of the Convention being exhaustively worded and requiring strict interpretation?If the answer to [the first question] is no, must Article 14(4) of [Directive 2011/95] be interpreted as introducing a ground for withdrawing refugee status which is not provided for in the Geneva Convention, compliance with which is required by Article 18 of [the Charter] and Article 78(1) [TFEU]?If the answer to [the third question] is yes, is Article 14(4) of [Directive 2011/95] compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, as it introduces a ground for withdrawing refugee status for which no provision is made in the Geneva Convention, and for which no basis can be found in the Convention?If the answer to [the first and third questions] is no, how can Article 14(4) of [Directive 2011/95] be interpreted in a manner consistent with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention?’ Procedure before the Court 66By decision of the President of the Court of 17 March 2017, Cases C‑77/17 and C‑78/17 were joined for the purposes of the written and oral procedure and the judgment. By decision of the President of the Court of 17 January 2018, those cases were joined with Case C‑391/16 for the purposes of the oral procedure and the judgment. The jurisdiction of the Court 67The Member States and institutions that have submitted written observations to the Court have expressed divergent opinions as regards the question whether the Court has jurisdiction to assess, in the context of the present requests for a preliminary ruling, the validity of Directive 2011/95 in the light of Article 78(1) TFEU and Article 18 of the Charter, which refer to the Geneva Convention.68In that regard, the German Government considers that such a question calls for a negative response with regard to the requests for a preliminary ruling in Cases C‑77/17 and C‑78/17, in so far as those requests seek, in essence, to obtain an interpretation of the Geneva Convention, whereas, as is apparent from the case-law resulting from the judgment of 17 July 2014, Qurbani (C‑481/13, EU:C:2014:2101, paragraphs 20, 21 and 28), the Court’s jurisdiction to interpret that convention is limited.69For their part, the Council and the Commission remark that the Court has already ruled on the need to interpret the provisions of Directive 2011/95 in line with the Geneva Convention. As for the Parliament, it considers that, as that directive is an autonomous legislative act of the Union, the primacy, unity and effectiveness of which are to be guaranteed by the Court, the examination of the validity of that directive should be carried out only on the basis of the Treaty on European Union, the Treaty on the Functioning of the European Union, and the Charter. Directive 2011/95 should be interpreted, as far as possible, in such a way as not to affect its validity while still observing, inter alia, the fundamental principles of the Geneva Convention.70By contrast, the French and Netherlands Governments emphasise that, although the European Union is not a party to the Geneva Convention, Article 78 TFEU and Article 18 of the Charter nonetheless require the Union to comply with it. Thus, they maintain that the Court has jurisdiction to assess the compatibility of Article 14(4) to (6) of Directive 2011/95 with that convention.71In that regard, it follows from Article 19(3)(b) TEU and point (b) of the first paragraph of Article 267 TFEU that the Court has jurisdiction to give preliminary rulings on the interpretation and the validity of acts adopted by the EU institutions, without exception, as those acts must be entirely compatible with the Treaties, the constitutional principles stemming therefrom, and the Charter (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 44 and 46).72In the present case, it should be noted that Directive 2011/95 was adopted on the basis of Article 78(2)(a) and (b) TFEU. Under Article 78(1) TFEU, the common policy on asylum, subsidiary protection and temporary protection, which aims to offer ‘appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement’, ‘must be in accordance with the Geneva Convention … and the Protocol …, and other relevant treaties’.73In addition, Article 18 of the Charter provides that the ‘right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention … and the Protocol … and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union’.74Thus, although the European Union is not a contracting party to the Geneva Convention, Article 78(1) TFEU and Article 18 of the Charter nonetheless require it to observe the rules of that convention. Directive 2011/95 must therefore, pursuant to those provisions of primary law, observe those rules (see, to that effect, judgments of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 29 and the case-law cited, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 53 and the case-law cited).75Consequently, the Court has jurisdiction to examine the validity of Article 14(4) to (6) of Directive 2011/95 in the light of Article 78(1) TFEU and Article 18 of the Charter and, in the context of that examination, to verify whether those provisions of that directive can be interpreted in a way which is in line with the level of protection guaranteed by the rules of the Geneva Convention. Consideration of the questions referred 76The questions of the referring courts as to the validity of Article 14(4) to (6) of Directive 2011/95 concern, in essence, the question whether the effect of Article 14(4) and (5) of that directive is to exclude the third-country national or the stateless person concerned, who satisfies the material conditions laid down in Article 2(d) thereof, from being a refugee and whether, as a result, it infringes Article 1 of the Geneva Convention. More specifically, their questions concern the fact that the scenarios referred to in Article 14(4) and (5) of Directive 2011/95 do not correspond to the exclusion and cessation clauses set out in Article 1(C) to (F) of the Geneva Convention, while those exclusion and cessation clauses are, within the scheme of that convention, exhaustive.77In that regard, it should be borne in mind that, in accordance with a general principle of interpretation, an EU measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 48 and the case-law cited). Thus, if the wording of secondary EU law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with primary law rather than to the interpretation which leads to its being incompatible with that law (judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 28 and the case-law cited).78It must therefore be ascertained whether the provisions of Article 14(4) to (6) of Directive 2011/95 can, in accordance with the requirements of Article 78(1) TFEU and Article 18 of the Charter, be interpreted in a way that ensures that the level of protection guaranteed by the rules of the Geneva Convention is observed. The system introduced by Directive 2011/95 79As is apparent from recital 12 of Directive 2011/95, the provisions thereof are intended to ensure the application of common criteria for the identification of persons in need of international protection and to ensure that a minimum level of benefits is available for those persons in all Member States.80In that regard, it should be borne in mind, as is confirmed by recital 3 of Directive 2011/95, that the Common European Asylum System, of which that directive is part, is based on the full and inclusive application of the Geneva Convention and the Protocol and on the guarantee that nobody will be sent back to a place where they again risk being persecuted (see, to that effect, judgments of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 75, and of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 30).81In addition, it is apparent from recitals 4, 23 and 24 of Directive 2011/95 that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of that directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria in order to recognise applicants for asylum as having refugee status for the purposes of Article 1 of that convention (see, to that effect, judgments of 31 January 2017, Lounani, C‑573/14, EU:C:2017:71, paragraph 41, and of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, paragraph 40 and the case-law cited).82Furthermore, recital 16 of Directive 2011/95 specifies that that directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members, the latter right being, under Article 18 of the Charter, guaranteed in compliance with the Geneva Convention and the Protocol.83Thus, although Directive 2011/95 establishes a system of rules including concepts and criteria common to the Member States and thus peculiar to the European Union, it is nonetheless based on the Geneva Convention and its purpose is, inter alia, to ensure that Article 1 of that convention is complied with in full.84Those clarifications having been made, it should be noted that, regarding the term ‘refugee’, Article 2(d) of that directive reproduces, in essence, the definition set out in Article 1(A)(2) of the Geneva Convention. In that regard, the provisions of Chapter III of Directive 2011/95, entitled ‘Qualification for being a refugee’ provide clarification regarding the material conditions necessary to enable a third-country national or a stateless person to be considered a refugee for the purposes of Article 2(d) of that directive.85For its part, Article 2(e) of Directive 2011/95 defines ‘refugee status’ as ‘the recognition by a Member State of a third-country national or a stateless person as a refugee’. As can be seen from recital 21 of that directive, that recognition is declaratory and not constitutive of being a refugee.86Thus, within the system introduced by Directive 2011/95, a third-country national or a stateless person who satisfies the material conditions set out in Chapter III of that directive is, on that basis alone, a refugee for the purposes of Article 2(d) thereof and Article 1(A) of the Geneva Convention.87The systematic interpretation of Directive 2011/95 according to which Chapter III thereof concerns only the fact of being a refugee cannot be called in question by the use of the expression ‘statut de réfugié’ in the French language version of Article 12(1) and (2) of that directive set out in that chapter. Indeed, other language versions of that provision, such as the Spanish, German, English, Portuguese and Swedish versions, use the expression ‘being a refugee’ instead of ‘refugee status’ in Article 12(1) and (2).88According to settled case-law of the Court, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgments of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 27, and of 24 January 2019, Balandin and Others, C‑477/17, EU:C:2019:60, paragraph 31). In that regard, while Chapter III of Directive 2011/95 is entitled ‘Qualification for being a refugee’, Chapter IV of that directive is entitled ‘Refugee status’ and contains Article 13, which governs the granting of that status, and Article 14, which governs the revocation and ending of, as well as the refusal to renew that status.89As regards Article 13 of Directive 2011/95, the Court has held that, pursuant to that provision, Member States are to grant refugee status to all third-country nationals or stateless persons who satisfy the material conditions for qualification as a refugee in accordance with Chapters II and III of that directive, without having any discretion in that respect (see, to that effect, judgments of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 63, and of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraphs 52 and 54).90The fact that being a ‘refugee’ for the purposes of Article 2(d) of Directive 2011/95 and Article 1(A) of the Geneva Convention is not dependent on formal recognition thereof through the granting of ‘refugee status’ as defined in Article 2(e) of that directive is, moreover, borne out by the wording of Article 21(2) of that directive, which states that a ‘refugee’ may, in accordance with the condition laid down in that provision, be refouled ‘whether formally recognised or not’.91The result of formal recognition as a refugee, which the granting of refugee status constitutes, is that the refugee concerned is, under Article 2(b) of Directive 2011/95, the beneficiary of international protection for the purposes of that directive, so that he is entitled, as the Advocate General noted in point 91 of his Opinion, to all the rights and benefits laid down in Chapter VII of that directive, which contains both rights equivalent to those set out in the Geneva Convention and, as has been observed by, inter alia, the Parliament and the United Kingdom Government, rights providing greater protection which have no equivalent in that convention, such as those referred to in Article 24(1) and Articles 28 and 34 of Directive 2011/95.92It follows from the foregoing that the fact of being a ‘refugee’ for the purposes of Article 2(d) of Directive 2011/95 and Article 1(A) of the Geneva Convention is not dependent on the formal recognition of that fact through the granting of ‘refugee status’ as defined in Article 2(e) of that directive, read in conjunction with Article 13 thereof. Article 14(4) and (5) of Directive 2011/95 93Regarding the circumstances, referred to in Article 14(4) and (5) of Directive 2011/95, in which Member States may revoke or refuse to grant refugee status, those circumstances correspond, in essence, as the Advocate General noted in point 56 of his Opinion, to those in which Member States may refoule a refugee under Article 21(2) of that directive and Article 33(2) of the Geneva Convention.94However, it should, in the first place, be noted that, while Article 33(2) of the Geneva Convention denies the refugee the benefit, in such circumstances, of the principle of non-refoulement to a country where his life or freedom would be threatened, Article 21(2) of Directive 2011/95 must, as is confirmed by recital 16 thereof, be interpreted and applied in a way that observes the rights guaranteed by the Charter, in particular Article 4 and Article 19(2) thereof, which prohibit in absolute terms torture and inhuman or degrading punishment or treatment irrespective of the conduct of the person concerned, as well as removal to a State where there is a serious risk of a person being subjected to such treatment. Therefore, Member States may not remove, expel or extradite a foreign national where there are substantial grounds for believing that he will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by Article 4 and Article 19(2) of the Charter (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 86 to 88, and of 24 April 2018, MP (Subsidiary protection of a person previously a victim of torture), C‑353/16, EU:C:2018:276, paragraph 41).95Thus, where the refoulement of a refugee covered by one of the scenarios referred to in Article 14(4) and (5) and Article 21(2) of Directive 2011/95 would expose that refugee to the risk of his fundamental rights, as enshrined in Article 4 and Article 19(2) of the Charter, being infringed, the Member State concerned may not derogate from the principle of non-refoulement under Article 33(2) of the Geneva Convention.96In those circumstances, in so far as Article 14(4) and (5) of Directive 2011/95 provides, in the scenarios referred to therein, for the possibility for Member States to revoke ‘refugee status’ as defined in Article 2(e) of that directive or to refuse to grant that status, while Article 33(2) of the Geneva Convention, for its part, permits the refoulement of a refugee covered by one of those scenarios to a country where his or her life or freedom would be threatened, EU law provides more extensive international protection for the refugees concerned than that guaranteed by that convention.97In the second place, as was noted by the Commission, the Council and the Parliament and by several of the Member States who submitted written observations to the Court, Article 14(4) and (5) of Directive 2011/95 cannot be interpreted as meaning that, in the context of the system introduced by that directive, the effect of the revocation of refugee status or the refusal to grant that status is that the third-country national or the stateless person concerned who satisfies the conditions set out in Article 2(d) of that directive, read in conjunction with the provisions of Chapter III thereof, is no longer a refugee for the purposes of Article 2(d) of that directive and Article 1(A) of the Geneva Convention.98Indeed, besides what has been stated in paragraph 92 above, the fact that the person concerned is covered by one of the scenarios referred to in Article 14(4) and (5) of Directive 2011/95 in no way means that he or she ceases to satisfy the material conditions, relating to a well-founded fear of persecution in his or her country of origin, on which his or her being a refugee depends.99In the event that a Member State decides to revoke or not to grant refugee status under Article 14(4) or (5) of Directive 2011/95, it is true that the third-country nationals or the stateless persons concerned will be denied that status and thus will not or will no longer be entitled to all the rights and benefits set out in Chapter VII of that directive, those rights and benefits being associated with that status. However, as is explicitly stated in Article 14(6) of that directive, those persons are, or continue to be entitled to a certain number of rights laid down in the Geneva Convention (see, to that effect, judgment of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 71), which, as the Advocate General emphasised in point 100 of his Opinion, confirms that they are, or continue to be refugees for the purposes of, inter alia, Article 1(A) of that convention, in spite of that revocation or refusal.100It follows that the provisions of Article 14(4) to (6) of Directive 2011/95 cannot be interpreted as meaning that the effect of the revocation of refugee status or the refusal to grant that status is that the third-country national or the stateless person concerned who satisfies the material conditions of Article 2(d) of that directive, read in conjunction with the provisions of Chapter III thereof, is not a refugee for the purposes of Article 1A of the Geneva Convention and is thus excluded from the international protection which, under Article 18 of the Charter, he must be guaranteed in compliance with that convention. Article 14(6) of Directive 2011/95 101Article 14(6) of Directive 2011/95 provides that persons to whom paragraphs 4 or 5 of that article apply are entitled to rights set out in ‘or similar to those set out in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention in so far as they are present in the Member State’.102Regarding, first of all, the conjunction ‘or’ used in Article 14(6) of Directive 2011/95, that conjunction may, linguistically, have an alternative or a cumulative sense and must consequently be read in the context in which it is used and in light of the objectives of the act in question (see, by analogy, judgment of 12 July 2005, Commission v France, C‑304/02, EU:C:2005:444, paragraph 83). In the present case, having regard to the context and objective of Directive 2011/95 as set out in recitals 3, 10 and 12 thereof, and taking account of the case-law cited in paragraph 77 above, that conjunction must, in Article 14(6) of that directive, be understood in a cumulative sense.103Regarding, next, the scope of the expression ‘similar [rights]’ contained in that provision, it should be noted that, as the Advocate General emphasised in point 110 of his Opinion, the application of Article 14(4) or (5) of Directive 2011/95 has the consequence, inter alia, of depriving the person concerned of the residence permit which Article 24(1) of that directive attaches to having refugee status as defined in that directive.104Thus, a refugee concerned by a measure taken on the basis of Article 14(4) or (5) of Directive 2011/95 may, for the purpose of determining the rights that he or she must be granted under the Geneva Convention, be regarded as not or no longer staying lawfully in the territory of the Member State concerned.105It must therefore be held that Member States, when implementing Article 14(4) or (5) of that directive, are, in principle, required to grant refugees who are present in their respective territories only the rights expressly referred to in Article 14(6) of that directive and the rights set out in the Geneva Convention that are guaranteed for any refugee who is present in the territory of a Contracting State and do not require a lawful stay.106It should, however, be emphasised that, despite being denied the residence permit attached to refugee status under Directive 2011/95, a refugee covered by one of the scenarios referred to in Article 14(4) and (5) thereof may be authorised, on another legal basis, to stay lawfully in the territory of the Member State concerned (see, to that effect, judgment of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 94). In such a situation, Article 14(6) of that directive in no way prevents that Member State from guaranteeing that the person concerned is entitled to all the rights which the Geneva Convention attaches to ‘being a refugee’.107Thus, Article 14(6) of Directive 2011/95 must, in accordance with Article 78(1) TFEU and Article 18 of the Charter, be interpreted as meaning that a Member State which uses the powers provided for in Article 14(4) and (5) of that directive must grant a refugee covered by one of the scenarios referred to in those provisions and present in the territory of that Member State, as a minimum, the rights enshrined in the Geneva Convention expressly referred to in Article 14(6) of that directive and the rights provided for by that convention which do not require a lawful stay, without prejudice to any reservations which may be made by that Member State under Article 42(1) of that convention.108Moreover, besides the rights which the persons concerned must be guaranteed by the Member States pursuant to Article 14(6) of Directive 2011/95, it should be emphasised that there is no way of interpreting that provision as having the effect of encouraging those States to shirk their international obligations as resulting from the Geneva Convention by restricting the rights that those persons derive from that convention.109In any event, it should be stated that, as the Advocate General noted in points 133 and 134 of his Opinion, and as is confirmed by recitals 16 and 17 of Directive 2011/95, the application of Article 14(4) to (6) of that directive is without prejudice to the obligation of the Member State concerned to comply with the relevant provisions of the Charter, such as those set out in Article 7 thereof, relating to respect for private and family life, Article 15 thereof, relating to the freedom to choose an occupation and the right to engage in work, Article 34 thereof, relating to social security and social assistance, and Article 35 thereof, relating to health protection.110It is apparent from all of the foregoing that, while, under the Geneva Convention, the persons covered by one of the scenarios described in Article 14(4) and (5) of Directive 2011/95 are liable, under Article 33(2) of that convention, to a measure whereby they are refouled or expelled to their country of origin, even though their life or freedom would be threatened in that country, such persons may not, by contrast, under Article 21(2) of that directive, be refouled if this would expose them to the risk of their fundamental rights, as enshrined in Article 4 and Article 19(2) of the Charter, being infringed. It is true that those persons may, in the Member State concerned, be the subject of a decision revoking their refugee status as defined in Article 2(e) of Directive 2011/95, or a decision refusing to grant that status, but the adoption of such decisions cannot alter the fact of their being refugees where they satisfy the material conditions necessary to be regarded as being refugees for the purposes of Article 2(d) of that directive, read in conjunction with the provisions of Chapter III thereof and, accordingly, Article 1(A) of the Geneva Convention.111In those circumstances, the interpretation of Article 14(4) to (6) of Directive 2011/95 thus applied ensures that the minimum level of protection laid down by the Geneva Convention is observed, as required by Article 78(1) TFEU and Article 18 of the Charter.112Therefore, the answer to the questions referred is that consideration of Article 14(4) to (6) of Directive 2011/95 has disclosed no factor of such a kind as to affect the validity of those provisions in the light of Article 78(1) TFEU and Article 18 of the Charter. Costs 113Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Consideration of Article 14(4) to (6) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, has disclosed no factor of such a kind as to affect the validity of those provisions in the light of Article 78(1) TFEU and Article 18 of the Charter of Fundamental Rights of the European Union. [Signatures]( *1 ) Languages of the case: Czech and French. | 71de1-3ee87b5-43c9 | EN |
Member States must require employers to set up a system enabling the duration of daily working time to be measured | 14 May 2019 ( *1 )(Reference for a preliminary ruling — Social policy — Protection of the safety and health of workers — Organisation of working time — Article 31(2) of the Charter of Fundamental Rights of the European Union — Directive 2003/88/EC — Articles 3 and 5 — Daily and weekly rest — Article 6 — Maximum weekly working time — Directive 89/391/EEC — Safety and health of workers at work — Requirement to set up a system enabling the duration of time worked each day by each worker to be measured)In Case C‑55/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Nacional (National High Court, Spain), made by decision of 19 January 2018, received at the Court on 29 January 2018, in the proceedings Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, intervener: Federación Estatal de Servicios de la Unión General de Trabajadores (FES-UGT), Confederación General del Trabajo (CGT), Confederación Solidaridad de Trabajadores Vascos (ELA), Confederación Intersindical Galega (CIG), THE COURT (Grand Chamber),composed of K. Lenaerts, President, J.-C. Bonichot, A. Arabadjiev, E. Regan (Rapporteur), T. von Danwitz, F. Biltgen, K. Jürimäe and C. Lycourgos, Presidents of Chambers, J. Malenovský, E. Levits, L. Bay Larsen, M. Safjan, D. Šváby, C. Vajda and P.G. Xuereb, Judges,Advocate General: G. Pitruzzella,Registrar: L. Carrasco Marco, administrator,having regard to the written procedure and further to the hearing on 12 November 2018,after considering the observations submitted on behalf of:–the Federación de Servicios de Comisiones Obreras (CCOO), by A. García López, abogado,Deutsche Bank SAE, by J.M. Aniés Escudé, abogado,the Federación Estatal de Servicios de la Unión General de Trabajadores (FES-UGT), by J.F. Pinilla Porlan and B. García Rodríguez, abogados,the Spanish Government, by S. Jiménez García, acting as Agent,the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,the United Kingdom Government, by Z. Lavery, acting as Agent, and by R. Hill, Barrister,the European Commission, by N. Ruiz García and M. van Beek, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 31 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 3, 5, 6, 16 and 22 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) and Article 4(1), Article 11(3), and Article 16(3) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).2The request has been made in proceedings between the Federación de Servicios de Comisiones Obreras (CCOO) and Deutsche Bank SAE concerning the lack of a system for recording the time worked each day by the workers employed by the latter. Legal context European Union law Directive 89/391 3Article 4(1) of Directive 89/391 provides:‘Member States shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive.’4Article 6(1) of that directive provides:‘Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means.… ’5Article 11(3) of the directive provides:‘Workers’ representatives with specific responsibility for the safety and health of workers shall have the right to ask the employer to take appropriate measures and to submit proposals to him to that end to mitigate hazards for workers and/or to remove sources of danger.’6Article 16(3) of the same directive provides:‘The provisions of this Directive shall apply in full to all the areas covered by the individual Directives, without prejudice to more stringent and/or specific provisions contained in these individual Directives.’ Directive 2003/88 7Recitals 3 and 4 of Directive 2003/88 state:‘(3)The provisions of [Directive 89/391] remain fully applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provisions contained herein.(4)The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.’8Article 1 of Directive 2003/88, headed ‘Purpose and scope’, provides:‘…2. This Directive applies to:(a)minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and(b)certain aspects of night work, shift work and patterns of work.…4. The provisions of [Directive 89/391] are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.’9Article 3 of that directive, entitled ‘Daily rest’, provides:‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’10Article 5 of that directive, entitled ‘Weekly rest period’, provides:‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied.’11Article 6 of Directive 2003/88, entitled ‘Maximum weekly working time’, provides:‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;the average working time for each seven-day period, including overtime, does not exceed 48 hours.’12Article 16 of Directive 2003/88 specifies the maximum periods of reference for the application of Articles 5 and 6 thereof.13Article 17 of that directive, under the heading ‘Derogations’, provides in paragraph 1 thereof as follows:‘With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:managing executives or other persons with autonomous decision-taking powers;family workers; or(c)workers officiating at religious ceremonies in churches and religious communities. ’14Article 19 of Directive 2003/88 concerns the limitations to the derogations from reference periods laid down in that directive.15Under Article 22(1) of that directive:‘A Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker’s agreement to perform such work;the employer keeps up-to-date records of all workers who carry out such work;(d)the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours; Spanish law 16The Estatuto de los Trabajadores (Workers’ Statute), in the version following Real Decreto Legislativo 2/2015 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015 approving the consolidated text of the Workers’ Statute) of 23 October 2015 (BOE No 255, of 24 October 2015, p. 100224) (‘the Workers’ Statute’) provides in Article 34, entitled ‘Working time’:‘1. The duration of working time shall be as specified in collective agreements or employment contracts.Normal working time shall average no more than 40 hours per week of actual work, calculated on an annual basis.3. There must be at least 12 hours between the end of one period of work and the beginning of the following period of work.The number of normal hours of actual work shall not exceed nine hours per day unless a different pattern of daily working time applies by virtue of a collective agreement or, failing that, by agreement between the employer and the representatives of the workers, subject in all cases to compliance with the rest period between two periods of work.…’17Article 35 of the Workers’ Statute, entitled ‘Overtime’, provides:‘1. Hours worked in excess of the maximum normal working time fixed in accordance with the preceding article shall constitute overtime. …2. Overtime shall not exceed 80 hours per annum …4. Overtime shall be voluntary, unless that work was agreed in a collective agreement or in an individual contract of work, within the limitations laid down in paragraph 2.5. For the purpose of calculating overtime, every worker’s working time shall be recorded on a daily basis and the total calculated at the time fixed for payment of remuneration. Workers shall be given a copy of the summary with the corresponding payslip.’18Real Decreto 1561/1995 sobre jornadas especiales de trabajo (Royal Decree 1561/1995 on special working time) of 21 September 1995 (BOE No 230, of 26 September 1995, p. 28606), provides in its third supplementary provision, entitled ‘Powers of workers’ representatives in connection with working time’:‘Without prejudice to the powers of workers’ representatives in connection with working time under the Workers’ Statute and this Royal Decree, those representatives shall have the right:to be informed each month by the employer of any overtime worked by the workers, irrespective of the form of compensation adopted. To that end, they shall receive a copy of the summary referred to in Article 35(5) of the Workers’ Statute.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 19On 26 July 2017, CCOO, a workers’ union which is part of a trade union organisation represented at national level in Spain, brought a group action before the Audiencia Nacional (National High Court, Spain) against Deutsche Bank, seeking a judgment declaring the bank to be under an obligation, under Article 35(5) of the Workers’ statute and the third supplementary provision of Royal Decree 1561/1995, to set up a system for recording the time worked each day by its members of staff, in order to make it possible to verify compliance with, first, the working times stipulated and, second, the obligation to provide union representatives with information on overtime worked each month.20According to CCOO, the obligation to set up such a recording system is derived from Articles 34 and 35 of the Workers’ Statute, as interpreted in the light of Article 31(2) of the Charter, Articles 3, 5, 6, and 22 of Directive 2003/88, as well as the Hours of Work (Industry) Convention (No 1) and the Hours of Work (Commerce and Offices) Convention (No 30), adopted by the International Labour Organisation in Washington on 28 November 1919, and Geneva on 28 June 1930, respectively.21Deutsche Bank submits, on the other hand, that it follows from judgments No 246/2017 of 23 March 2017 (REC 81/2016) and No 338/2017 of 20 April 2017 (REC 116/2016) of the Tribunal Supremo (Supreme Court, Spain) that Spanish law does not lay down such an obligation of general application.22The Audiencia Nacional (National High Court) observes that despite numerous rules on working time, flowing from a wide range of national sectoral collective conventions and company collective agreements, which apply to Deutsche Bank, the latter has not set up within its organisation any system for recording the time worked by its staff members that enables the verification of observance of the working hours agreed and calculation of overtime hours that may be worked. In particular, Deutsche Bank uses a computer application (absences calendar) which enables exclusively whole day absences to be recorded, such as holidays or other leave, without however measuring the duration of time worked by each worker or the number of overtime hours worked.23The Audiencia Nacional (National High Court) also observes that Deutsche Bank has not complied with the request by the Inspección de Trabajo y Seguridad Social de las provincias de Madrid y Navarra (Employment and Social Security Inspectorate for the Madrid and Navarre provinces, Spain) to set up a system of recording time worked each day and that the inspectorate subsequently drew up a notice of infringement containing a proposal to impose a penalty. That proposal for a penalty was however rejected following the judgment of the Tribunal Supremo (Supreme Court) of 23 March 2017, cited in paragraph 21 above.24The Audiencia Nacional (National High Court) states that it is clear from the case-law of the Tribunal Supremo (Supreme Court), cited in paragraph 21 above, that Article 35(5) of the Workers’ Statute merely requires, except where there is an agreement to the contrary, that a record be kept of overtime hours worked by workers and the communication, at the end of each month, to workers and their representatives of the number of hours of overtime thus worked.25According to the Audiencia Nacional (National High Court), that case-law rests on the following considerations. First, the obligation to keep a record is laid down in Article 35 of the Workers’ Statute, which concerns overtime hours, and not Article 34 of that Statute which concerns ‘normal’ working time, defined as working time which does not exceed maximum working time. Second, on all occasions when the Spanish legislature wished to require time worked to be recorded, it provided for that specifically, as in the case of part-time workers and mobile workers working in the merchant navy or rail transport. Third, Article 22 of Directive 2003/88, like Spanish law, lays down the obligation to maintain a record of time worked in particular cases, but not an obligation to maintain a record of ‘normal’ working time. Fourth, establishing a record of time worked by each worker would involve processing personal data with the risk of an unjustified interference in the private lives of workers. Fifth, the failure to keep such a record cannot be regarded as a clear and manifest infringement under the national law concerning infringements and penalties in social matters. Sixth, the case-law of the Tribunal Supremo (Supreme Court) does not prejudice workers’ rights since Article 217(6) of Ley de Enjuiciamiento Civil 1/2000 (Civil Procedure Law 1/2000), of 7 January 2000, (BOE No 7, of 8 January 2000, p. 575), while not allowing it to be presumed that hours of overtime were worked in the absence of a record of ‘normal’ time worked, is nevertheless unfavourable to an employer that has not kept such a record where the worker proves by other means that he or she has worked overtime hours.26The Audiencia Nacional (National High Court) has doubts as to whether the interpretation of Article 35(5) of the Workers’ Statute adopted by the Tribunal Supremo (Supreme Court) is consistent with EU law. The referring court observes, first of all, that a 2016 survey of the work force in Spain revealed that 53.7% of overtime worked had not been recorded. In addition, it was clear from two reports by the Dirección General de Empleo del ministerio de Empleo y Seguridad Social (Directorate-General for Employment of the Spanish Ministry of Employment and Social Security) of 31 July 2014 and 1 March 2016, that it was necessary, in order to determine whether overtime was worked, to know precisely the number of normal hours worked. That explains why the employment inspectorate asked Deutsche Bank to establish systems for recording time worked by each worker, since such a system was regarded as the only means of verifying whether the maximum limits laid down were exceeded in the course of a reference period. The interpretation of Spanish law by the Tribunal Supremo (Supreme Court) would in practice, first, deprive workers of a source of evidence essential for demonstrating that they have worked in excess of maximum working time limits and, second, deprive their representatives of the necessary means for verifying whether the applicable rules on the matter were complied with, such that the monitoring of compliance with working times and rest periods depended upon the employer’s good will.27According to the referring court, in such a situation, Spanish national law is not capable of ensuring effective compliance with the obligations laid down by Directive 2003/88 as regards minimum rest periods and maximum weekly working time, nor, as regards the rights of workers’ representatives, the obligations flowing from Directive 89/391.28In those circumstances, the Audiencia Nacional (National High Court, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Must it be understood that by Articles 34 and 35 of the Workers’ Statute, as they have been interpreted by [Spanish] case-law, the Kingdom of Spain has taken the measures necessary to ensure the effectiveness of the limits to working time and of the weekly and daily rest periods established by Articles 3, 5 and 6 of [Directive 2003/88] for full-time workers who have not expressly agreed, whether individually or collectively, to work overtime and who are not mobile workers or persons working in the merchant navy or railway transport?(2)Must Article 31(2) of [the Charter] and Articles 3, 5, 6, 16 and 22 of [Directive 2003/88], read in conjunction with Articles 4(1), 11(3) and 16(3) of [Directive 89/391], be interpreted as precluding internal national legislation such as Articles 34 and 35 of the Workers’ Statute from which, as settled [Spanish] case-law has determined, it cannot be inferred that employers must set up a system for recording actual daily working time [worked] by full-time workers who have not expressly agreed, whether individually or collectively, to work overtime and who are not mobile workers or persons working in the merchant navy or railway transport?(3)Must the mandatory requirement laid down in Article 31(2) of [the Charter] and Articles 3, 5, 6, 16 and 22 of [Directive 2003/88], read in conjunction with Articles 4(1), 11(3) and 16(3) of [Directive 89/391] for the Member States to limit the working time of all workers generally, be understood to be satisfied for ordinary workers by the internal national legislation, contained in Articles 34 and 35 of the Workers’ Statute from which, as settled [Spanish] case-law has determined, it cannot be inferred that employers are required to set up a system for recording actual daily working time for full-time workers who have not expressly agreed, whether individually or collectively, to work overtime, unlike mobile workers or persons working in the merchant navy or railway transport?’ Consideration of the questions referred 29By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 3, 5, 6, 16 and 22 of Directive 2003/88, read in conjunction with Article 4(1), Article 11(3) and Article 16(3) of Directive 89/391 and Article 31(2) of the Charter, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it by national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.30As a preliminary matter, it must be recalled that the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods not only constitutes a rule of EU social law of particular importance, but is also expressly enshrined in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties (see, to that effect, the judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 100, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 20).31The provisions of Directive 2003/88, in particular Articles 3, 5 and 6, give specific form to that fundamental right and must, therefore, be interpreted in the light of the latter (see, to that effect, the judgments of 11 September 2014, A, C‑112/13, EU:C:2014:2195, paragraph 51 and the case-law cited, and of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 85).32In particular, in order to ensure respect for that fundamental right, the provisions of Directive 2003/88 may not be interpreted restrictively at the expense of the rights that workers derive from it (see, by analogy, judgment of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 38 and the case-law cited).33In those circumstances, it is necessary, for the purpose of answering the questions referred, to interpret the latter directive having regard to the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods.34In that regard it must be noted, first of all, that the referring court’s second and third questions refer, inter alia, to Article 22 of Directive 2003/88, paragraph 1 of which provides that if Member States have recourse to the option of not applying Article 6 concerning maximum weekly working time, they must, inter alia, ensure, by taking the measures necessary for that purpose, that the employer keeps up-to-date records of all the workers concerned and that those records are placed at the disposal of the competent authorities.35However, as became clear from the oral exchanges at the hearing, the Kingdom of Spain has not availed itself of that option. Therefore, Article 22 of Directive 2003/88 is not applicable in the case in the main proceedings and, consequently, it is not necessary to interpret that provision in the present case.36Having made that clarification, it is necessary to recall that the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time (see, inter alia, the judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 37; of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 23; and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 39).37That harmonisation at European Union level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods — particularly daily and weekly — as well as adequate breaks, and by providing for a ceiling on the duration of the working week (see, inter alia, the judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 76; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 43; and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 23).38Thus, the Member States are required, under Articles 3 and 5 of Directive 2003/88, to take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period and, during each 7-day period, to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3 (judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 37).39Furthermore, Article 6(b) of Directive 2003/88 requires the Member States to fix a 48-hour limit for average weekly working time, a maximum which is expressly stated to include overtime, and from which, otherwise than in a situation, which is not relevant in the present case, covered by Article 22(1) of the directive, no derogation whatsoever may be made in any case, even with the consent of the worker concerned (see, to that effect, judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 33 and the case-law cited).40In order to ensure that Directive 2003/88 is fully effective, the Member States must ensure that those minimum rest periods are observed and prevent the maximum weekly working time laid down in Article 6(b) of Directive 2003/88 from being exceeded (judgment of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 51 and the case-law cited).41It is true that Articles 3, 5 and 6(b) of Directive 2003/88 do not establish the specific arrangements by which the Member States must ensure the implementation of the rights that they lay down. As is clear from their wording, those provisions leave the Member States to adopt those arrangements, by taking the ‘measures necessary’ to that effect (see, to that effect, judgment of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 55).42While Member States thus enjoy a discretion for that purpose, it remains the case that, having regard to the essential objective pursued by Directive 2003/88, which is to ensure the effective protection of the living and working conditions of workers and better protection of their safety and health, they are required to ensure that the effectiveness of those rights is guaranteed in full, by ensuring that workers actually benefit from the minimum daily and weekly rest periods and the limitation on the duration of average weekly working time laid down in that directive (see, to that effect, judgments of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 53; of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraphs 39 and 40; and of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 64).43It follows that the arrangements made by the Member States to implement the requirements of Directive 2003/88 must not be liable to render the rights enshrined in Article 31(2) of the Charter and Articles 3, 5 and 6(b) of that directive meaningless (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 44).44In that regard, it must be recalled that the worker must be regarded as the weaker party in the employment relationship and that it is therefore necessary to prevent the employer from being in a position to impose a restriction of his rights on him (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 82; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 80; and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 41).45Similarly, it must be observed that, on account of that position of weakness, a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where, in particular, doing so may expose him to measures taken by the employer likely to affect the employment relationship in a manner detrimental to that worker (see, to that effect, judgments of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 81, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 41).46Whether, and to what extent, it is necessary to set up a system enabling the duration of time worked each day by each worker to be measured in order to ensure effective compliance with maximum weekly working time and minimum daily and weekly rest periods must be examined in the light of those general considerations.47In that regard, it must be observed, as the Advocate General notes in points 57 and 58 of his Opinion, that in the absence of such a system, it is not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime.48In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter and by Directive 2003/88, with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.49The objective and reliable determination of the number of hours worked each day and each week is essential in order to establish, first, whether the maximum weekly working time defined in Article 6 of Directive 2003/88, including, in accordance with that provision, overtime, was complied with during the reference period set out in Article 16(b) or Article 19 of that directive and, second, whether the minimum daily and weekly rest periods, defined in Articles 3 and 5 of that directive respectively, were complied with in the course of each 24-hour period, as regards the daily rest period, or in the course of the reference period referred to in Article 16(a) of the same directive, as regards the weekly rest period.50Having regard to the fact that, as is clear from the case-law cited in paragraphs 40 and 41 above, the Member States must take all the measures necessary to ensure that minimum rest periods are observed and to prevent maximum weekly working time being exceeded so as to guarantee the full effectiveness of Directive 2003/88, a national law which does not provide for an obligation to have recourse to an instrument that enables the objective and reliable determination of the number of hours worked each day and each week is not capable of guaranteeing, in accordance with the case-law recalled in paragraph 42 above, the effectiveness of the rights conferred by Article 31(2) of the Charter and by this directive, since it deprives both employers and workers of the possibility of verifying whether those rights are complied with and is therefore liable to compromise the objective of that directive, which is to ensure better protection of the safety and health of workers.51In that regard it is irrelevant that the maximum weekly working time laid down in the present case by Spanish law may, as the Spanish Government submits, be more favourable to the worker than that provided for in Article 6(b) of Directive 2003/88. It remains the case, as that government itself moreover submitted, that the national provisions adopted in the matter contribute to the transposition into national law of the directive, with which Member States must ensure compliance by adopting the requisite arrangements to that end. In the absence of a system enabling the duration of time worked each day to be measured it remains equally difficult, if not impossible in practice, for a worker to ensure effective compliance with a maximum duration of weekly working time, irrespective of what that maximum duration may be.52That difficulty is by no means mitigated by the requirement for employers in Spain to set up, under Article 35 of the Workers’ Statute, a system for recording the overtime hours worked by workers who have given their consent in that respect. The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances. In any event, that requirement is not capable of compensating for the lack of a system which, as regards workers who have not consented to work overtime hours, could guarantee actual compliance with rules concerning, inter alia, maximum weekly working time.53It is true, in the present case, that it is clear from the case file before the Court that, as Deutsche Bank and the Spanish Government contend, where there is no system enabling working time to be measured, a worker may, under Spanish procedural rules, rely on other sources of evidence, such as, inter alia, witness statements, the production of emails or the consultation of mobile telephones or computers, in order to provide indications of a breach of those rights and thus bring about a reversal of the burden of proof.54However, unlike a system that measures time worked each day, such sources of evidence do not enable the number of hours the worker worked each day and each week to be objectively and reliably established.55In particular, it must be emphasised that, taking into account the worker’s position of weakness in the employment relationship, witness evidence cannot be regarded, in itself, as an effective source of evidence capable of guaranteeing actual compliance with the rights at issue, since workers are liable to prove reluctant to give evidence against their employer owing to a fear of measures being taken by the latter which might affect the employment relationship to their detriment.56By contrast, a system enabling the time worked by workers each day to be measured offers those workers a particularly effective means of easily accessing objective and reliable data as regards the duration of time actually worked by them and is thus capable of facilitating both the proof by those workers of a breach of the rights conferred on them by Articles 3 and 5 and 6(b) of Directive 2003/88, which give specific form to the fundamental right enshrined in Article 31(2) of the Charter, and also the verification by the competent authorities and national courts of the actual observance of those rights.57Nor can it be held that the difficulties resulting from there being no system enabling the duration of time worked each day by each worker to be measured may be surmounted through the powers to investigate and impose penalties conferred by national law on supervisory bodies, such as the employment inspectorate. Indeed, in the absence of such a system, those authorities are themselves deprived of an effective means of obtaining access to objective and reliable data as to the duration of time worked by the workers in each undertaking, which may prove necessary in order to exercise their supervisory function and, where appropriate, impose a penalty (see, to that effect, the judgment of 30 May 2013, Worten, C‑342/12, EU:C:2013:355, paragraph 37 and the case-law cited).58It follows that in the absence of a system enabling the time worked each day by each worker to be measured there is nothing to ensure, as is clear moreover from the elements provided by the referring court referred to in paragraph 26 above, that actual compliance with the right to a limitation on maximum working time and minimum rest periods conferred by Directive 2003/88 is fully guaranteed to workers, since that compliance is left to the discretion of the employer.59While it is true that the employer’s responsibility for observance of the rights conferred by Directive 2003/88 cannot be without limits, it remains the case that the law of a Member State that, according to the interpretation given to it by national case-law, does not require the employer to measure the duration of time worked, is liable to render the rights enshrined in Articles 3, 5 and 6(b) of that directive meaningless by failing to ensure, for workers, actual compliance with the right to a limitation on maximum working time and minimum rest periods, and is therefore incompatible with the objective of that directive, in which those minimum requirements are considered to be essential for the protection of workers’ health and safety (see, by analogy, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 43 and 44).60Consequently, in order to ensure the effectiveness of those rights provided for in Directive 2003/88 and of the fundamental right enshrined in Article 31(2) of the Charter, the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.61That conclusion is corroborated by the provisions of Directive 89/391. As is clear from Article 1(2) and (4) and recital 3 of Directive 2003/88 and Article 16(3) of Directive 89/391, the latter directive is fully applicable to matters of minimum daily and weekly rest periods and maximum weekly working time, without prejudice to more stringent and/or specific provisions contained in Directive 2003/88.62In that regard, the introduction of an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured falls within the general obligation, for Member States and employers, laid down in Article 4(1) and Article 6(1) of Directive 89/391, to provide the organisation and means necessary for the protection of the safety and health of workers. Moreover, such a system is necessary in order to enable worker representatives, who have a specific responsibility in respect of the protection of the safety and health of workers, to exercise their right, laid down in Article 11(3) of that directive, to ask the employer to take appropriate measures and to submit proposals to it.63Nevertheless, in accordance with the case-law recalled in paragraph 41 above, it is for the Member States, in the exercise of their discretion in that regard, to determine, as the Advocate General has stated in points 85 to 88 of his Opinion, the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size, and without prejudice to Article 17(1) of Directive 2003/88, which permits Member States, while having due regard for the general principles of the protection of the safety and health of workers, to derogate, inter alia, from Articles 3 to 6 of that directive, when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves.64The foregoing considerations are not undermined by the fact that certain specific provisions of EU law relating to the transport sector, such as, inter alia, Article 9(b) of Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35) and paragraph 12 of the Annex to Council Directive 2014/112/EU of 19 December 2014 implementing the European Agreement concerning certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers’ Federation (ETF) (OJ 2014 L 367, p. 86), expressly lay down a requirement to record the working time of workers covered by those provisions.65While the need for particular protection was able to lead the EU legislature to provide explicitly for such an obligation as regards defined categories of workers, a similar obligation, consisting of setting up an objective, reliable and accessible system enabling the duration of time worked each day to be measured, is necessary more generally for all workers in order to ensure the effectiveness of Directive 2003/88 and to take account of the importance of the fundamental right enshrined in Article 31(2) of the Charter, set out in paragraph 30 above.66In addition, as regards the costs, emphasised by the Spanish and United Kingdom Governments, that setting up such a system may involve for employers, it should be recalled that, as is clear from recital 4 of Directive 2003/88, the effective protection of the safety and health of workers should not be subordinated to purely economic considerations (see, to that effect, judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 59, and of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraphs 66 and 67).67Moreover, as the Advocate General observed in point 84 of his Opinion, neither Deutsche Bank nor the Spanish Government identified clearly or specifically the practical obstacles that might prevent employers from setting up, at a reasonable cost, a system enabling the time worked each day by each worker to be measured.68Finally, it must be recalled that, according to settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty, under Article 4(3) TEU, to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 30, and of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph 49).69It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of national law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, to comply with the third paragraph of Article 288 TFEU (judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 31 and the case-law cited).70The requirement to interpret national law in a manner that is consistent with EU law includes the obligation for national courts to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 33; of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 72; and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 64).71In the light of the foregoing, the answer to the questions referred is that Articles 3, 5 and 6 of Directive 2003/88, read in the light of Article 31(2) of the Charter, and Article 4(1), Article 11(3) and Article 16(3) of Directive 89/391, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured. Costs 72Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Articles 3, 5 and 6 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, read in the light of Article 31(2) of the Charter of Fundamental Rights of the European Union, and Article 4(1), Article 11(3) and Article 16(3) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured. [Signatures]( *1 ) Language of the case: Spanish. | 3e496-0f52d08-47ea | EN |
The calculation of compensation payments for dismissal and redeployment of an employee who is on part-time parental leave must be carried out on the basis of the full-time salary | 8 May 2019 ( *1 )(Reference for a preliminary ruling — Social policy — Directive 96/34/EC — Framework agreement on parental leave — Clause 2.6 — Worker employed full-time and for indefinite duration on part-time parental leave — Dismissal — Compensation payment for dismissal and redeployment leave allowance — Method of calculation — Article 157 TFEU — Equal pay for male and female workers — Part-time parental leave taken primarily by female workers — Indirect discrimination — Objective factors unrelated to any sex discrimination — None)In Case C‑486/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), made by decision of 11 July 2018, received at the Court on 23 July 2018, in the proceedings RE v Praxair MRC SAS, THE COURT (First Chamber),composed of J.-C. Bonichot, President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan (Rapporteur), Judges,Advocate General: G. Pitruzzella,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:–RE, by J. Buk Lament, avocat,Praxair MRC SAS, by J.-J. Gatineau, avocat,the French Government, by E. de Moustier and R. Coesme, acting as Agents,the European Commission, by A. Szmytkowska and C. Valero, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 157 TFEU and of clauses 2.4 and 2.6 of the framework agreement on parental leave concluded on 14 December 1995 (‘the framework agreement’), which is set out in the Annex to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4) as amended by Council Directive 97/75/EC of 15 December 1997 (OJ 1998 L 10, p. 24) (‘Directive 96/34’).2The request has been made in proceedings between RE and Praxair MRC SAS concerning the method for calculating compensation for dismissal and for the redeployment leave allowance which were paid to her in the context of her dismissal on economic grounds which took place during her part-time parental leave. Legal context EU law Directive 96/34 and the framework agreement on parental leave 3Directive 96/34 was repealed with effect from 8 March 2012 under Article 4 of Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34 (OJ 2010 L 68, p. 13). However, in view of the date of the facts of the dispute in the main proceedings, the case is still governed by Directive 96/34 and the framework agreement on parental leave.4Directive 96/34 sought to implement the framework agreement on parental leave concluded between the general cross-industry organisations, that is to say the Union of Industrial and Employers’ Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trade Union Confederation (ETUC).5The first paragraph in the preamble to the framework agreement on parental leave states:‘The framework agreement [on parental leave] represents an undertaking by UNICE, CEEP and the ETUC to set out minimum requirements on parental leave and time off from work on grounds of force majeure, as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women.’6Paragraphs 4 to 6 of the general considerations of the framework agreement set out:‘4.Whereas the Community Charter of Fundamental Social Rights stipulates at point 16 dealing with equal treatment that measures should be developed to enable men and women to reconcile their occupational and family obligations;5.Whereas the Council Resolution of 6 December 1994 recognises that an effective policy of equal opportunities presupposes an integrated overall strategy allowing for better organisation of working hours and greater flexibility, and for an easier return to working life, and notes the important role of the two sides of industry in this area and in offering both men and women an opportunity to reconcile their work responsibilities with family obligations;6.Whereas measures to reconcile work and family life should encourage the introduction of new flexible ways of organising work and time which are better suited to the changing needs of society and which should take the needs of both undertakings and workers into account’.7Clause 1 of that framework agreement, entitled ‘Purpose and scope’ provided:‘1.This agreement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents.2.This agreement applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State.’8Clause 2 of that framework agreement, entitled ‘Parental leave’, was worded as follows:This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour.…4.In order to ensure that workers can exercise their right to parental leave, Member States and/or management and labour shall take the necessary measures to protect workers against dismissal on the grounds of an application for, or the taking of, parental leave in accordance with national law, collective agreements or practices.Rights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained as they stand until the end of parental leave. At the end of parental leave, these rights, including any changes arising from national law, collective agreements or practice, shall apply.…’ Framework agreement on part-time work 9Clauses 4.1 and 4.2 of the framework agreement on part-time work concluded on 6 June 1997 (‘the framework agreement on part-time work’) which appears in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), as amended by Council Directive 98/23/EC of 7 April 1998 (OJ 1998 L 131, p. 10) states:In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.Where appropriate, the principle of pro rata temporis shall apply.’ French law 10Under Article L. 1233-71 of the code du travail (Labour Code), in the version in force at the material time in the main proceedings (‘the Labour Code’):‘In undertakings or establishments of a thousand or more employees and undertakings referred to in Article L. 2331-1 and those referred to in Article L. 2341-4, as long as they employ a total of at least a thousand employees, the employer shall offer each employee for whom he envisages dismissal on economic grounds redeployment leave for the purposes of enabling the employee to benefit from training initiatives and the services of a support team in the job search process.Redeployment leave may not exceed nine months.That leave begins, if necessary, with a skills assessment which serves to enable the employee to define a career plan and, where appropriate, to determine necessary training measures for his redeployment. Those shall be implemented during the period provided for in the first subparagraph.The employer shall finance all of those measures.’11Article L. 1233-72 of the Labour Code provides as follows:‘Redeployment leave shall be taken during the notice period, which the employee shall be exempted from implementing.Where the redeployment leave exceeds the notice period, the time fixed for the notice period shall be postponed until the end of the redeployment leave.The amount of salary which exceeds the notice period shall be equal to the conversion allowance referred to in paragraph 3 of Article L. 5123-2. The provisions of Articles L. 5123-4 and L. 5123-5 shall apply to that salary.’12Article L. 1234-9 of the Labour Code provides:‘An employee with an employment contract of indefinite duration who is dismissed after a year’s continuous service with the same employer, shall be entitled, except in the case of serious misconduct, to a compensation payment for dismissal.The method for calculating that compensation shall be based on the gross earnings of the employee prior to the termination of the employment contract. ...’13Article L. 3123-13 of the Labour Code provides:‘The compensation payment for dismissal and the retirement benefit payable to an employee who has worked on both a full-time and part-time basis for the same undertaking shall be calculated in proportion to the periods of each of those types of employment completed since the employee joined the undertaking.’14Article R. 1233-32 of the Labour Code concerning redeployment leave allowance is worded as follows:‘During a period of redeployment leave exceeding the period of notice, an employee shall receive a monthly payment from his employer.The amount of that payment shall be equivalent to at least 65% of the employee’s average gross monthly salary for the twelve months preceding the notification of dismissal, subject to the contributions referred to in Article L. 5422-9.It may not be less than a monthly salary equivalent to 85% of the product of the minimum wage provided for in Article L. 3231-2 multiplied by the number of the working hours agreed for the undertaking.Nor may it be less than 85% of the guaranteed amount of salary paid by the employer in accordance with the provisions of Article 32 of Law No 2000-37 of 19 January 2000 on the negotiated reduction in working hours.Each month, the employer shall give the employee a payslip specifying the amount and method of calculation of that salary.’15Article R. 1234-4 of the Labour Code provides:‘The salary to be used for calculating compensation dismissal shall be whichever of the following is the more beneficial to the employee:1.either one twelfth of the salary for the last twelve months prior to dismissal;or one third of the salary for the last three months. In that case, any annual bonus or premium or any bonus or premium of an exceptional nature, paid to the employee during that period, is taken into account only in a proportionate manner.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 16On 22 November 1999, RE commenced employment as a sales assistant with Materials Research Corporation, now Praxair MRC, under a fixed-term and full-time contract. By addendum of 21 July 2000, her employment contract became a contract of indefinite duration and full-time with effect from 1 August 2000.17RE took a first period of maternity leave from 4 February 2001 to 19 August 2001, followed by a period of childcare leave from 6 September 2001 to 6 September 2003. She then took a second period of maternity leave from 6 November 2007 to 6 June 2008, followed by a period of childcare leave from 1 August 2008, in the form of her working hours being reduced by one fifth. That last period of childcare leave was supposed to end on 29 January 2011.18On 6 December 2010, RE was made redundant as part of a collective redundancy on economic grounds. She accepted redeployment leave for a period of 9 months.19After having relinquished the right to a reduction in her working hours with effect from 1 January 2011, RE left Praxair MRC on 7 September 2011.20On 30 September 2011, RE brought proceedings before the conseil de prud’hommes de Toulouse (Labour Tribunal, Toulouse, France) to contest her dismissal and made several claims, in particular, for the payment of EUR 941.15 in respect of outstanding redundancy pay and of EUR 1 423.79 in respect of outstanding redeployment leave allowance.21By judgment of 12 September 2013, that court dismissed RE’s two claims.22By judgment of 14 October 2016, the cour d’appel de Toulouse (Court of Appeal, Toulouse, France) upheld the dismissal of those claims by RE before the conseil de prud’hommes de Toulouse (Labour Tribunal, Toulouse).23On 14 December 2016, RE appealed against that judgment on a point of law, claiming that the cour d’appel de Toulouse (Court of Appeal, Toulouse) had infringed clause 2.6 of the framework agreement on parental leave.24The Cour de cassation (Court of Cassation, France) points out that, according to its case-law, it would be appropriate, pursuant to Article L. 3123-13 of the Labour Code, to calculate the amount of compensation for dismissal payable to RE by taking into account, in proportion, the periods of full-time and periods of part-time employment completed. As regards the redeployment leave allowance, it should be determined, in accordance with Article R. 1233-32 of the Labour Code, on the basis of the average gross monthly salary for the 12 months preceding the notification of RE’s dismissal.25That court however stated that, in its judgment of 22 October 2009, Meerts (C‑116/08, EU:C:2009:645), the Court of Justice held that, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker cannot be determined on the basis of the reduced salary being received when the dismissal takes place. The Court followed the same interpretation in the judgment of 27 February 2014, Lyreco Belgium (C‑588/12, EU:C:2014:99) on the calculation of the fixed-sum protective award.26The referring court questions whether clause 2.6 of the framework agreement on parental leave is applicable to the provisions concerning the method for calculating the redeployment leave allowance, which is paid after the dismissal of the worker concerned.27Where the Court takes the view that it is appropriate, for the calculation of the compensation payment for dismissal and the redeployment leave allowance, to take as a basis work carried out full-time, the lack of direct effect of directives of the European Union in a dispute which involves only private individuals would lead the referring court to consider the provisions of its national law as a whole in order to achieve an interpretation which complies with EU law. However, interpreting Article L. 3123-13 of the Labour Code in accordance with Directive 96/34 and the framework agreement on parental leave could lead to a contra legem interpretation of that national provision. Moreover, it is not clear that Article R. 1233-32 of the Labour Code may be interpreted in accordance with clauses 2.4 and 2.6 of the framework agreement on parental leave.28Additionally, the referring court takes the view that Article 157 TFEU is applicable in a dispute such as that in the main proceedings in so far as the benefits concerned fall within the concept of ‘pay’ within the meaning of that article. It points out that a far greater number of women than men choose to take part-time parental leave and that this results in indirect discrimination in respect of female workers.29In the context of the assessment of objective factors justifying such discrimination, it is appropriate to take into account clauses 4.1 and 4.2 of the framework agreement on part-time work. The referring court states however that, in paragraph 51 of the judgment of 22 October 2009, Meerts (C‑116/08, EU:C:2009:645), the Court observed that a worker on part-time parental leave and a worker employed under a full-time contract are not in a different position in relation to the initial employment contract with their employer.30In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Are clauses 2.4 and 2.6 of the framework agreement on parental leave … to be interpreted as precluding the application to an employee who is on part-time parental leave at the time of his dismissal of a provision of domestic law, such as Article L. 3123-13 of the Labour Code, applicable at the material time, under which “the compensation payment for dismissal and retirement benefit payable to an employee who has worked on both a full-time and part-time basis for the same undertaking shall be calculated in proportion to the periods of each of those types of employment completed since the employee joined the undertaking”?(2)Are clauses 2.4 and 2.6 of the framework agreement … to be interpreted as precluding the application to an employee who is on part-time parental leave at the time of his dismissal of a provision of domestic law, such as Article R. 1233-32 of the Labour Code, under which, during a period of redeployment leave which exceeds the notice period, the employee is to receive a monthly payment from the employer of an amount equivalent to at least 65% of the employee’s average gross monthly pay during the 12 months preceding the notice of dismissal, subject to the contributions referred to in Article L. 5422-9 of the Labour Code?(3)If the answer to either of the preceding questions is in the affirmative, is Article 157 [TFEU] to be interpreted as precluding provisions of national law, such as Article L. 3123-13 of the Labour Code, applicable at the material time, and Article R. 1233-32 of that Code, in so far as a far greater number of women than men choose to take part-time parental leave and the indirect discrimination which results therefrom as regards the receipt of redundancy pay and redeployment leave allowance, which are less than those received by employees who have not taken part-time parental leave, is not justified by objective factors unrelated to any form of discrimination?’ The first and second questions 31By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether clauses 2.4 and 2.6 of the framework agreement on parental leave must be interpreted as precluding, where a worker employed full-time and for an indefinite duration is dismissed at the time he takes part-time parental leave, the compensation payment for dismissal and the redeployment leave allowance to be paid to that worker being determined at least in part on the basis of the reduced salary being received when the dismissal takes place. Admissibility 32Praxair MRC and the French Government submit that, since the dispute in the main proceedings is between two private individuals and without the possibility of interpreting the national legislation at issue in the main proceedings in accordance with EU law, RE may not rely on the framework agreement to prevent the application of that national legislation where the latter would be contrary to EU law. Consequently, the first and second questions are not relevant to the resolution of the dispute in the main proceedings. Those questions are thus hypothetical and, consequently, inadmissible.33In that regard, it should be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).34It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).35In that regard, it follows from the Court’s case-law that the Court has jurisdiction to give preliminary rulings concerning the interpretation of provisions of EU law irrespective of whether or not they have direct effect (judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 89 and the case-law cited).36Additionally, as regards the obligation of interpretation in conformity with EU law, it should be recalled that, according to settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 4(3) TEU and Article 288 TFEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 57 and the case-law cited).37To fulfil that obligation, the principle of interpretation in conformity with EU law requires the national authorities to do everything within their power, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 58 and the case-law cited).38However, that principle of interpretation of national law in conformity with EU law has certain limits. Thus the obligation for a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law that is contra legem (judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 59 and the case-law cited).39In the present case, it is clear from the order for reference, as stated in paragraph 27 of the present judgment that the referring court, even though it expresses doubts in that regard, does not exclude the possibility of an interpretation in conformity with national legislation referred to in its first and second questions. It is for that court to determine whether it is appropriate to proceed to an interpretation of the national legislation at issue in the main proceedings in compliance with EU law.40In those circumstances, the first and second questions must be held to be admissible. Substance 41As a preliminary point, it should be noted that, as is apparent from the first paragraph in the preamble to the framework agreement on parental leave, from paragraphs 4 and 5 of the general considerations of that framework agreement and from clause 1.1 thereof, the framework agreement constitutes an undertaking by the two sides of industry to introduce, through minimum requirements, measures to offer both men and women an opportunity to reconcile their work responsibilities with family obligations (judgments of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 35, and of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 30).42Under clause 1.2 of the framework agreement on parental leave, that agreement applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State.43It is not disputed that such was the case of RE in the main proceedings, with the result that her situation falls within the ambit of that framework agreement.44In its first and second questions, the referring court refers to clauses 2.4 and 2.6 of the framework agreement on parental leave. In that regard, clause 2.4 of that framework agreement sets out that in order to ensure that workers can exercise their right to parental leave, Member States and/or management and labour are to take the necessary measures to protect workers against dismissal ‘on the grounds of an application for, or the taking of, parental leave’ in accordance with national law, collective agreements or practices.45In the present case, RE was dismissed as part of a collective redundancy on economic grounds. It is not clear from the order for reference that she was subject to that dismissal because she had applied for or had taken parental leave.46In those circumstances, it is not necessary to answer the first and second questions in the light of clause 2.4 of the framework agreement on parental leave, since only clause 2.6 of that framework agreement is relevant.47According to clause 2.6, rights acquired or in the process of being acquired by the worker on the date on which parental leave starts are to be maintained as they stand until the end of parental leave and, at the end of parental leave, these rights, including any changes arising from national law, collective agreements or practice, are to apply.48In that regard, it is clear both from the wording of clause 2.6 of the framework agreement on parental leave and its context that that provision is intended to avoid loss or reduction of rights derived from an employment relationship, acquired or being acquired, to which the worker is entitled when he starts parental leave, and to ensure that, at the end of that leave, with regard to those rights, he will find himself in the same situation as he was before the leave (judgments of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 39, and of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 43).49Having regard to the objective of equal treatment between men and women which is pursued by the framework agreement on parental leave, clause 2.6 thereof must be interpreted as articulating a particularly important principle of EU social law which cannot therefore be interpreted restrictively (see, to that effect, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 42).50It is clear from the objectives of the framework agreement on parental leave that the concept of ‘rights acquired or in the process of being acquired’ within the meaning of clause 2.6 covers all the rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 43).51Such rights and benefits include all those relating to employment conditions, such as the right of a full-time worker on part-time parental leave to a period of notice in the event of the employer’s unilateral termination of a contract of indefinite duration, the length of which depends on the worker’s length of service in the company and the aim of which is to facilitate the search for a new job (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 44).52It is true that, whilst on part-time parental leave, a worker employed under a full-time contract does not work the same number of hours as someone working full-time. However, that does not mean that the two workers are in a different position in relation to the initial employment contract with their employer (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 51).53As the Court has already held, in respect of a worker employed under a full-time contract who is on part-time parental leave, the unilateral termination by the employer must be regarded as relating to a full-time employment contract (see, to that effect, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 55).54Under those circumstances, the Court held that clauses 2.6 and 2.7 of the framework agreement on parental leave must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 56).55In the present case, as regards, in the first place, compensation for dismissal such as that at issue in the main proceedings, it must be held that that compensation is paid because of the employment relationship between the recipient and his former employer. Therefore, such compensation comes within the scope of clause 2.6 of the framework agreement on parental leave.56As is clear from the case-law cited in paragraph 54 of the present judgment, where a worker employed full-time and for an indefinite duration is dismissed at the time he takes part-time parental leave, his compensation payment for dismissal must be determined entirely on the basis of the full-time salary of that worker.57National legislation which would result in the rights flowing from the employment relationship being reduced in the event of parental leave could discourage workers from taking such leave and could encourage employers to dismiss workers who are on parental leave rather than other workers. This would run directly counter to the aim of the framework agreement on parental leave, one of the objectives of which is to make it easier to reconcile working and family life (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 47).58In those circumstances, clause 2.6 of the framework agreement on parental leave precludes a national provision, such as that at issue in the main proceedings, which involves taking into account the reduced salary received by the worker on part-time parental leave when the dismissal takes place, by providing that the compensation payment for dismissal for a worker who has worked on both a full-time and part-time basis for the same undertaking is calculated in proportion to the periods of each of those types of employment completed since the worker joined the undertaking.59As regards, in the second place, the redeployment leave allowance provided for by the national legislation at issue in the main proceedings, that allowance is related to redeployment leave. It is clear from the order for reference that, in the undertakings covered by that legislation, the employer is to offer each employee, for whom he envisages dismissal on economic grounds, redeployment leave for the purposes of enabling the employee to benefit from training initiatives and the services of a support team in the job search process.60It is necessary to assess whether a benefit such as the redeployment leave allowance falls within the scope of clause 2.6 of the framework agreement on parental leave and if so, whether that provision precludes the method of calculating that allowance laid down in legislation such as that at issue in the main proceedings.61In the light of the case-law referred to in paragraph 50 of the present judgment, having regard to its award criteria, a benefit such as the redeployment leave allowance constitutes a right derived from the employment relationship, which the worker is entitled to claim from the employer. The mere fact that the payment of such an allowance is not automatic, in so far as it must be requested by the dismissed worker from his employer, and that that payment takes place during the period of redeployment leave which exceeds the notice period does not appear to be capable of altering that finding.62In those circumstances, clause 2.6 of the framework agreement on parental leave is applicable to a benefit such as the redeployment leave allowance.63As regards the method for calculating that allowance, it is evident from the order for reference that the legislation at issue in the main proceedings provides that, where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, that allowance is calculated, at least in part, on the basis of the reduced salary being received when the dismissal takes place.64In the same way as for the compensation payment for dismissal, a benefit such as the redeployment leave allowance must, pursuant to clause 2.6 of the framework agreement on parental leave, be determined entirely on the basis of the full-time salary of that worker.65In light of the above, the answer to the first and second questions is that clause 2.6 of the framework agreement on parental leave must be interpreted as precluding, where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, the compensation payment for dismissal and the redeployment leave allowance to be paid to that worker being determined at least in part on the basis of the reduced salary being received when the dismissal takes place. The third question 66By its third question, the referring court asks, in essence, whether Article 157 TFEU must be interpreted as precluding legislation such as that at issue in the main proceedings which provides that, where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, that worker receives a compensation payment for dismissal and a redeployment leave allowance determined at least in part on the basis of the reduced salary which he receives when the dismissal takes place, in circumstances when a far greater number of women than men choose to take part-time parental leave and when that difference in treatment which results therefrom cannot be explained by objective factors unrelated to any sex discrimination.67As a preliminary point, it must be pointed out that since Article 157 TFEU is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals (see, to that effect, judgments of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 39, and of 18 November 2004, Sass, C‑284/02, EU:C:2004:722, paragraph 25).68Thus, the principle established by that article may be invoked before national courts, in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public (see, to that effect, judgments of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 40, and of 13 January 2004, Allonby, C‑256/01, EU:C:2004:18, paragraph 45).69In accordance with Article 157(2) TFEU, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.70It is apparent from the Court’s case-law that the concept of ‘pay’ within the meaning of Article 157(2) TFEU must be interpreted broadly. It covers, in particular, any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Moreover, the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay within the meaning of that provision (judgments of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 35, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 33).71As regards the compensation granted by an employer to a worker when he is made redundant, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such a termination (judgments of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 13, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 35).72In the present case, it should be pointed out that benefits such as the compensation payment for dismissal and the redeployment leave allowance fulfil the requirements recalled in paragraphs 70 and 71 of the present judgment. In those circumstances, such benefits must be categorised as ‘pay’ within the meaning of Article 157 TFEU.73In order to assess whether there is discrimination, it should be recalled that, according to settled case-law, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (judgments of 13 February 1996, Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 16, and of 14 July 2016, Ornano, C‑335/15, EU:C:2016:564, paragraph 39).74In that regard, the French Government submits that it is not necessary to compare a worker on part-time parental leave to a worker who works full-time by referring to clause 4.2 of the framework agreement on part-time work according to which ‘where appropriate, the principle of pro rata temporis shall apply’.75The French Government and Praxair MRC rely also on paragraph 63 of the judgment of 16 July 2009, Gómez-Limón Sánchez-Camacho (C‑537/07, EU:C:2009:462), in which the Court held that the principle of equal treatment for men and women does not preclude a worker, during part-time parental leave, acquiring entitlements to a permanent invalidity pension according to the time worked and the salary received and not as if he had worked on a full-time basis. It is therefore not necessary to compare a worker on part-time parental leave to a worker who works full-time.76However, it is necessary to draw a distinction between, on the one hand, the rights which take into account specifically the circumstances of part-time parental leave and, on the other, the rights which do not specifically arise from those circumstances.77In that context, as is evident from paragraph 53 of the present judgment, as regards a worker employed under a full-time contract on part-time parental leave, the unilateral termination by the employer must be regarded as relating to a full-time employment contract.78Consequently, as is clear from paragraphs 51 and 55 of the judgment of 22 October 2009, Meerts (C‑116/08, EU:C:2009:645), as regards the right to benefits such as the compensation payment for dismissal and the redeployment leave allowance, the circumstances of a worker on part-time parental leave, in relation to such benefits, is comparable to those of a full-time worker. Such a finding is equally applicable in the context of Article 157 TFEU.79According to the Court’s settled case-law, the principle of equal pay enshrined in Article 157 TFEU, precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination (see, to that effect, judgments of 15 December 1994, Helmig and Others, C‑399/92, C‑409/92, C‑425/92, C‑34/93, C‑50/93 and C‑78/93, EU:C:1994:415, paragraph 20, and of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 40).80More specifically, the Court has consistently held that indirect discrimination on grounds of sex arises where a national measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other. Such a measure is compatible with the principle of equal pay only if the difference in treatment between the two categories of workers to which it gives rise is justified by objective factors unrelated to any sex discrimination (see, to that effect, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 41 and the case-law cited).81In the present case, it follows from the application of national legislation such as that at issue in the main proceedings, which is formulated in neutral terms, that where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, that worker is at a disadvantage compared to a worker who is dismissed whilst he is employed full-time in so far as, in respect of the worker on part-time parental leave, the compensation payment for dismissal and the redeployment leave allowance are determined at least in part on the basis of the reduced salary being received at the time of his dismissal.82The referring court explains, in its third question, that a far greater number of women than men choose to take part-time parental leave. It states in its order for reference that, according to the Advocate General of the Cour de cassation (Court of Cassation), it follows from the national statistics of March 2016 that, in France, 96% of workers who took parental leave are women.83In such a case, national legislation such as that at issue in the main proceedings is compatible with the principle of equal treatment only if the difference in treatment between female workers and male workers thus created is, as the case may be, capable of being justified by objective factors unrelated to any sex discrimination.84It follows, in particular, from the wording of its third question that the referring court takes the view that that difference in treatment is not justified by such objective factors.85As for the French Government, as regards such a difference in treatment, it does not submit factors in its written observations which are objectively justified by reasons unrelated to any sex discrimination.86In those circumstances, national legislation such as that at issue in the main proceedings appears not to comply with the principle of equal pay for male and female workers for equal work or work of equal value, as provided for in Article 157 TFEU.87In the light of the foregoing, the answer to the third question is that Article 157 TFEU must be interpreted as precluding legislation such as that at issue in the main proceedings which provides that, where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, that worker receives a compensation payment for dismissal and a redeployment leave allowance determined at least in part on the basis of the reduced salary which he receives when the dismissal takes place, in circumstances when a far greater number of women than men choose to take part-time parental leave and when that difference in treatment which results therefrom cannot be explained by objective factors unrelated to any sex discrimination. Costs 88Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: 1. Clause 2.6 of the framework agreement on parental leave concluded on 14 December 1995, which is annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 December 1997, must be interpreted as precluding, where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, the compensation payment for dismissal and the redeployment leave allowance to be paid to that worker being determined at least in part on the basis of the reduced salary which he receives when the dismissal takes place. 2. Article 157 TFEU must be interpreted as precluding legislation such as that in the main proceedings which provides that, where a worker employed full-time and for an indefinite duration is dismissed at the time he is on part-time parental leave, that worker receives a compensation payment for dismissal and a redeployment leave allowance determined at least in part on the basis of the reduced salary being received when the dismissal takes place, in circumstances when a far greater number of women than men choose to take part-time parental leave and when that difference in treatment which results therefrom cannot be explained by objective factors unrelated to any sex discrimination. [Signatures]( *1 ) Language of the case: French. | 6f594-590b0ec-49d8 | EN |
The Spanish legislation on the calculation of retirement pensions for part-time workers is contrary to EU law if it is found to be particularly disadvantageous to female workers | 8 May 2019 ( *1 )(Reference for a preliminary ruling — Equal treatment for men and women in matters of social security — Directive 79/7/EEC — Article 4 — Prohibition of any discrimination on the ground of sex — Indirect discrimination — Part-time work — Calculation of retirement pension)In Case C‑161/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Castilla y León (High Court of Justice of Castile and León, Spain), made by decision of 17 January 2018, received at the Court on 27 February 2018, in the proceedings Violeta Villar Láiz v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), THE COURT (Third Chamber),composed of A. Prechal (Rapporteur), President of the Chamber, F. Biltgen, J. Malenovský, C.G. Fernlund and L.S. Rossi, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: L. Carrasco Marco, Administrator,having regard to the written procedure and further to the hearing on 10 January 2019,after considering the observations submitted on behalf of:–Ms Villar Láiz, by R.M. Gil López, abogada,the Instituto Nacional de la Seguridad Social (INSS) and the Tesorería General de la Seguridad Social (TGSS), by A. Alvarez Moreno and G. Guadaño Segovia, lawyers,the Spanish Government, by L. Aguilera Ruiz and V. Ester Casas, acting as Agents,the European Commission, by S. Pardo Quintillán and C. Valero, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).2The request has been made in proceedings between Ms Violeta Villar Láiz, on the one hand, and the Instituto Nacional de la Seguridad Social (INSS) (National Institute of Social Security (INSS), Spain) and the Tesorería General de la Seguridad Social (TGSS) (General Social Security Fund (TGSS), Spain), on the other, in relation to the calculation of her retirement pension. Legal context EU law Directive 79/7 3Article 1 of Directive 79/7 provides:‘The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as “the principle of equal treatment”.’4Article 3(1) of that directive provides:‘This Directive shall apply to:(a)statutory schemes which provide protection against the following risks:…old age,…’5Article 4(1) of that directive provides:‘The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:the scope of the schemes and the conditions of access thereto,the obligation to contribute and the calculation of contributions,the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.’ Directive 2006/54/EC 6Recital 30 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23), is worded as follows:‘The adoption of rules on the burden of proof plays a significant role in ensuring that the principle of equal treatment can be effectively enforced. As the Court of Justice has held, provision should therefore be made to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination, except in relation to proceedings in which it is for the court or other competent national body to investigate the facts. It is however necessary to clarify that the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination remains a matter for the relevant national body in accordance with national law or practice. Further, it is for the Member States to introduce, at any appropriate stage of the proceedings, rules of evidence which are more favourable to plaintiffs.’7Article 2(1) of that directive provides:‘For the purpose of this Directive, the following definitions shall apply:(b)“indirect discrimination”: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary; Spanish law 8Article 209(1) of the Ley General de la Seguridad Social (General Law on Social Security), in the consolidated version approved by Real Decreto Legislativo 8/2015 (Royal Legislative Decree 8/2015), of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103291, and corrigendum, BOE No 36 of 11 February 2016, p. 10898) (‘the LGSS’), provides:‘The basic amount for calculation of the retirement pension shall be the quotient given by dividing by 350 the contribution bases of the interested party during the 300 months immediately before the month preceding the event giving rise to the entitlement ...’9The eighth transitional provision of the LGSS states:‘… As from 1 January 2016, the basic amount for calculation of retirement pension shall be the quotient arising from the division by 266 of the contribution bases during the 228 months immediately before the month preceding the event giving rise to the entitlement ...’10Article 210(1) of the LGSS provides:‘The amount of the retirement pension shall be determined by applying to the basic amount, calculated in accordance with the provisions of the preceding article, the following percentages:50% for the first 15 years of contributions;From the 16th year onwards, each additional month of contributions shall give rise to the application of a percentage which shall amount, between the 1st and 248th month, to 0.19% and, for each month following the 248th, 0.18%, but the percentage applicable to the basic amount must not exceed 100% …11For the year 2016, in accordance with the 9th transitional provision of the LGSS, from the 16th year onwards, each additional month of contributions is to give rise to the application of a percentage which will amount, between the 1st and 163rd months, to 0.21% and, for each of the 83 following months, 0.19%, up to the maximum of 100%.12Articles 245 to 248 of the LGSS establish the rules applicable to part-time workers for the purposes of the grant of financial benefits from the social security system.13Article 245 of the LGSS, that article being headed ‘Social Protection’, provides:‘1. The social protection derived from part-time employment contracts is governed by the principle that a part-time worker is to be treated in the same way as a full-time worker …2. The rules laid down in this section shall be applicable to workers employed on part-time contracts, part-time relief contracts and so-called fijo-discontinuo contracts [permanent seasonal contracts], in accordance with the provisions of Articles 12 and 16 of the recast Ley del Estatuto de los Trabajadores [(the Workers’ Statute)], falling within the scope of the general rules, including part-time workers or workers employed on fijo-discontinuo contracts falling within the scope of the special rules relating to domestic workers.’14Article 246 of the LGSS, headed ‘Contributions’, provides:‘1. The basis of social security contributions and of employer contributions paid jointly to it is always determined monthly and is constituted of the remuneration actually received in consideration of hours worked, both ordinary and supplementary.2. The basis of contribution thus determined may not be less than the amounts determined by legislation.3. Supplementary hours give rise to social security contribution following the same bases and rates as ordinary hours.’15Article 247 of the LGSS, on the calculation of contribution periods, provides:‘For the purposes of evidence of contribution periods necessary to provide an entitlement to retirement, permanent invalidity, death and survivor, temporary invalidity, maternity and paternity benefits, the following rules shall apply:The various periods during which a worker has been affiliated on a part-time contract shall be taken into account, whatever the duration of the period of work carried in each of those periods.To that effect, the reduction factor relative to part-time work, which shall be determined according to the percentage which the time of part-time work carried out bears to the time of work carried out by a comparable full-time worker, shall be applied to the affiliation period covering employment on a part-time contract, the result being the number of days for which contributions shall be considered to have been actually made for each period.Where necessary, there should be added, to the number of days resulting from that calculation, the full-time days of contribution, the result being the total number of days of contributions that are to be taken into account with respect to access to benefits.Once the attested number of days of contributions is determined, the overall reduction factor relative to part-time work shall be calculated, that factor corresponding to the percentage represented by the ratio of the number of days worked and taken into account as contribution days, in accordance with the provisions of the preceding point (a), to the total number of days of affiliation throughout the worker’s working life …(c)The minimum contribution period required of part-time workers for each of the financial benefits for which such a period is fixed shall be arrived after the general application to the period concerned of the overall reduction factor relative to part-time work mentioned in point (b).In circumstances in which, for the purposes of access to the corresponding financial benefit, there is a requirement that all or part of the minimum contribution period requested should fall within a specified time frame, the overall reduction factor relative to part-time work shall be applied to fix the contribution period that may be required. The time frame within which the period to be required will have to fall shall, in any event, be that established generally for the benefit concerned.’16Article 248 of the LGSS, headed ‘Amount of financial benefits’, states:‘1. The determination of the basic amount of the financial benefits shall be governed by the following rules:The basic amount of the retirement and permanent invalidity benefits shall be calculated in accordance with the general rule.2. In order to calculate retirement pensions and pensions for permanent invalidity due to an ordinary illness, periods not subject to a contribution obligation shall be taken into consideration by taking account of the minimum contribution base applicable from time to time, for the number of hours provided for in the employment contract.3. In order to determine the amount of retirement pensions and pensions for permanent invalidity resulting from non-occupational illness, the number of days of contribution calculated in accordance with the provisions of Article 247(2)(a) shall be increased … by the application of a factor of 1.5, but the number of days thus arrived at may not be greater than the period of part-time employment.The percentage to be applied to the basic amount under consideration shall be determined in accordance with the general scale referred to in Article 210(1), subject to the following exception: The dispute in the main proceedings and the questions referred for a preliminary ruling 17It is apparent from the order for reference that Ms Villar Láiz made an application to the INSS for payment of a retirement pension.18The INSS granted her a retirement pension as from 1 October 2016, the value of that pension being calculated by multiplying the basic amount by a reduction factor of 53%, that factor taking account of the fact that Ms Villar Láiz had worked part-time for a significant part of her working life.19The referring court explains that that basic amount is derived from the average of the contribution bases, calculated according to the wages actually received for the hours worked and for which contributions were made over a number of years preceding retirement.20Ms Villar Láiz requested that, for the calculation of the amount of her retirement pension, a factor of 80.04% should be applied, so that her periods of part-time work should be taken into consideration in the same way as periods of full-time work.21That request having been dismissed, Ms Villar Láiz brought an action before the Juzgado de lo Social No 4 de Valladolid (Employment Tribunal No 4 of Valladolid, Spain). She claimed that the difference in treatment established by the national legislation gave rise to indirect discrimination on the ground of sex, since the majority of part-time workers were women.22By judgment of 30 June 2017, the Juzgado de lo Social No 4 de Valladolid (Employment Tribunal No 4 of Valladolid) dismissed the action, on the ground that the difference in treatment of part-time workers in the calculation of the retirement pension did not constitute discrimination, since the formula applied is intended to adjust the calculation in line with the contributions paid, in accordance with the principle pro rata temporis.23Ms Villar Láiz brought an appeal against that judgment before the referring court.24That court explains that the system for the calculation of the retirement pension was introduced following delivery of judgment No 61/2013 of the Tribunal Constitucional (Constitutional Court, Spain) of 14 March 2013. In that judgment, the Tribunal Constitucional (Constitutional Court), taking account of the judgment of the Court of Justice of 22 November 2012, Elbal Moreno (C‑385/11, EU:C:2012:746), declared to be unconstitutional the previous system, which, with respect to access to a retirement pension, took account of periods of part-time work in proportion to the time of full-time work, by applying however a multiplication factor of 1.5. Under that system, if the time worked as thus calculated did not exceed 15 years, the worker had no access to a retirement pension. Under the reform that was enacted, the legislature amended the system for access to the retirement pension, introducing, for the calculation of the amount of the pension, a reduction factor for workers who had worked part time.25As a general rule, the amount of the pension would correspond to the basic amount, based on the average of the contribution bases in the years preceding the retirement, multiplied by a percentage that was determined according to the number of years of contribution.26As regards more specifically part-time workers, the rules for the calculation of that percentage are laid down in Article 247 of the LGSS. It follows from that article that periods of part-time work are taken into account not in their entirety, but in proportion to the extent to which the work is part time, by the application of the reduction factor corresponding to the percentage represented by the ratio of the time of the worker engaged in part-time work to that of a comparable worker who is employed full time.27Last, in accordance with Article 248(3) of the LGSS, the number of days of contribution determined on the basis of that calculation is to be increased by the application of a multiplication factor of 1.5, but the number of days so arrived at may not be greater than those on which a contribution was actually made.28According to the referring court, the result is that, in cases of periods of part-time work, Spanish law has, most often, adverse effects for part-time workers as compared with full-time workers, and only in some cases, a minority of cases, are the effects neutral, where the reduction factor linked to part-time work is greater than or equal to two thirds of full-time work.29It follows that the system for the calculation of the pension is doubly detrimental in the case of part-time work. In addition to the fact that the wages of a part-time worker and, therefore, the basic amount applicable are lower than those of a full-time worker, that system reduces, in proportion to the extent to which the work is part time, the period of contribution taken into consideration in order to establish the percentage applicable to the basic amount.30The referring court explains that the detrimental effect of the national system on the calculation of the retirement pension in cases of part-time work primarily affects women, since, according to the Instituto Nacional de Estadística (National Institute of Statistics, Spain), 75% of part-time workers in the first quarter of 2017 were women.31In those circumstances, the referring court considers that the provisions at issue in the main proceedings involve indirect discrimination on the ground of sex, contrary to Article 4(1) of Directive 79/7 and Article 21 of the Charter. The provisions of national law concerned do not appear to serve a legitimate social policy objective or, at the least, are not proportionate to such an objective.32The referring court considers that it is impossible to interpret the LGSS in a way that is compatible with Article 4(1) of Directive 79/7. In that regard, the referring court adds that national legislation such as that at issue in the main proceedings cannot, in accordance with the case-law of the Tribunal Constitucional (Constitutional Court), be set aside by a Spanish court, unless that court has made a reference for a preliminary ruling to the Court of Justice, or has referred a preliminary question of unconstitutionality to the Tribunal Constitucional (Constitutional Court).33In those circumstances, the Tribunal Superior de Justicia de Castilla y León (High Court of Justice of Castile and León) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Under Spanish law, in order to calculate a retirement pension, a percentage based on the number of years for which contributions have been paid throughout the person’s entire working life must be applied to the basic amount, which is calculated on the basis of earnings in the most recent years. Must a rule of national law, such as that in Article 247(a) and Article 248(3) of the [LGSS] which reduces the number of qualifying years for the purpose of applying the percentage in the case of periods of part-time work, be considered contrary to Article 4(1) of [Directive 79/7]? Does Article 4(1) of Directive [79/7] require that the number of years of contributions that are taken into account in order to determine the percentage to be applied in calculating the retirement pension be determined in the same way for full-time workers and part-time workers?(2)Must a rule of national law such as that in dispute in the present proceedings be interpreted as also being contrary to Article 21 of [the Charter], thus requiring the national court to give full effect to the Charter and to refrain from applying the disputed provisions of national law, without requesting or awaiting the prior setting aside of the provisions by legislative or other constitutional means?’ Consideration of the questions referred The first question 34By its first question, the referring court seeks, in essence, to ascertain whether Article 4(1) of Directive 79/7 must be interpreted a precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that the amount of the contributory retirement pension of a part-time worker is to be calculated by multiplying a basic amount, established on the basis of remuneration actually received and contributions actually paid, by a percentage which is related to the length of the contribution period, that period being modified, by a reduction factor equal to the ratio of the duration of the part-time work actually carried out to the duration of the work carried out by a comparable full-time worker, and increased by the application of a factor of 1.5.35Article 4(1) of that directive prohibits any discrimination on the ground of sex, either directly, or indirectly, as concerns, inter alia, the calculation of social security benefits.36In that regard, it is clear, from the outset, that a rule of national law such as that at issue in the main proceedings is not directly discriminatory on the ground of sex, since it applies without distinction to both male and female workers.37As regards whether such a rule of law constitutes indirect discrimination, it must be recalled that that concept must, in the context of Directive 79/7, be understood in the same way as in the context of Directive 2006/54 (see, to that effect, judgment of 26 June 2018, MB (Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 34). It is apparent from Article 2(1)(b) of Directive 2006/54 that there is discrimination based indirectly on sex in a situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.38The existence of such a particular disadvantage might be established, for example, if it were proved that legislation such as that at issue in the main proceedings is to the disadvantage of a significantly greater proportion of individuals of one sex as compared with individuals of the other sex (see, to that effect, judgment of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 28 and the case-law cited). It is for the national court to determine whether that is the case in the main proceedings.39In the event that, as in this case, the national court has statistical evidence available to it, the Court has previously held that the best approach to the comparison of such evidence is to consider, on the one hand, the respective proportions of workers who are and who are not affected by the rule at issue within the male workforce and, on the other, the same proportions within the female workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people active in the Member State as a whole as well as the percentages of men and women employed in that Member State (see, to that effect, judgment of 9 February 1999, Seymour-Smith and Perez, C‑167/97, EU:C:1999:60, paragraph 59).40In that regard, it is for the national court to assess to what extent the statistical evidence adduced before it concerning the situation of the workforce is valid and can be taken into account, that is to say, whether, for example, it illustrates purely fortuitous or short-term phenomena, and whether, in general, it appears to be significant (see, to that effect, judgment of 9 February 1999, Seymour-Smith and Perez, C‑167/97, EU:C:1999:60, paragraph 62 and the case-law cited).41In this case, it is apparent from the order for reference that the provisions of national law at issue in the main proceedings have, most often, effects that place part-time workers at a disadvantage as compared with full-time workers. Only in a limited number of cases do those provisions not have such an effect, due to the mitigating effects of the measure that provides for, with respect to part-time workers, an increase in the accepted number of days of contribution by the application of a factor of 1.5.42Further, the statistical evidence mentioned by the referring court in its request for a preliminary ruling indicates that, in the first quarter of 2017, the total number of wage earners in Spain was 15906700, of whom 8332000 were men and 7574600 were women. In that same period, the number of part-time wage earners was 2460200 (15.47% of wage earners), of whom 613700 were men (7.37% of male wage earners) and 1846500 were women (24.38% of female wage earners). It follows from that data that, in that period, approximately 75% of part-time workers were women.43The Spanish Government submits nonetheless that, of the total number of retirement pension cases successfully dealt with by the INSS in the period between 2014 and 2017, in which periods of part-time work and part-time contributions were taken into consideration by taking account of the overall rate of part-time work, approximately 60% of them concerned women and 40% concerned men.44That said, it must be emphasised that, as regard the group of workers specifically affected by the provisions of national law at issue in the main proceedings, it is apparent from the documents available to the Court that, with respect to 65% of part-time workers, namely those who have worked, on average, less than two thirds of the normal duration of work of a full-time worker, the reduction factor applicable to the basic amount is lower than that applicable to the basic amount of full-time workers. It follows that the workers on short part-time contracts are placed at a disadvantage because of the application of that reduction factor.45As stated above in paragraph 40 of the present judgment, it is for the referring court to determine whether that statistical evidence is valid, representative and significant. In that regard, it must, in particular, be recalled that the comparison set out in paragraph 39 of the present judgment must concern, in this case, the group of workers engaged in short part-time work as the group of workers actually affected by the legislation at issue in the main proceedings.46Further, as is also apparent from recital 30 of Directive 2006/54, the appreciation of the facts from which it may be presumed that there has been indirect discrimination is the task of the national judicial authority, in accordance with national law or national practices which may provide, in particular, that indirect discrimination may be established by any means, and not only on the basis of statistical evidence (see, by analogy, judgment of 19 April 2012, Meister, C‑415/10, EU:C:2012:217, paragraph 43).47If the referring court, on the basis of the statistical evidence produced and, as the case may be, other relevant information, were to come to the conclusion that the national legislation at issue in the main proceedings places women at a particular disadvantage as compared with men, such legislation would be contrary to Article 4(1) of Directive 79/7, unless it were justified by objective factors unrelated to any discrimination on grounds of sex.48That would be the case where the measures chosen reflect a legitimate social policy objective of the Member State whose legislation is at issue, they are appropriate to achieve the objective pursued by that Member State and they are necessary for that purpose (see, to that effect, judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 32 and the case-law cited).49In that regard, the INSS and the Spanish Government argue that a proportional reduction in the retirement pension in cases of part-time work constitutes the expression of a general social policy objective pursued by the national legislature, since that correction is essential within a social security system that relies on contributions. Such a reduction must be made in the light of the principle of contribution and the principle of equal treatment of part-time and full-time workers and is objectively justified by the fact that, in cases of part-time work, the pension is the counterpart of less work carried out and a smaller contribution to the system.50In that regard, it must be recalled that the mere fact that the amounts of retirement pensions are adjusted pro rata temporis, in order to take account of the reduced time worked by a part-time worker as compared with that of a full-time worker, cannot be considered to be contrary to EU law (see, to that effect, order of 17 November 2015, Plaza Bravo, C‑137/15, EU:C:2015:771, paragraph 27 and the case-law cited).51However, the Court has also held that a measure which has the effect of reducing a worker’s retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified on the ground that the pension is in that case consideration for less work (judgment of 23 October 2003, Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 93).52In this case, it is apparent from the order for reference that the national legislation at issue in the main proceedings contains two elements that are liable to reduce the amount of the retirement pensions of part-time workers. First, the basic amount of the retirement pension is established according to the bases of contribution, constituted by the remuneration actually received in consideration of hours worked. It follows that the basic amount is, for a part-time worker, lower than the basic amount of a comparable full-time worker. Second, while that basic amount is multiplied by a percentage according to the number of days of contribution, that number of days is itself modified by a reduction factor corresponding to the ratio of the time of part-time work actually carried out by the worker concerned to the time of work carried out by a comparable full-time worker.53Admittedly, that second element is mitigated by the fact that, in accordance with Article 248(3) of the LGSS, the number of days of contribution established after the application of the reduction factor is to be increased by the application of a multiplication factor of 1.5.54However, it must be stated that the first element, namely the fact that the basic amount is, for a part-time worker, as the counterpart of the fact that less work was carried out, lower than the basic amount of a comparable full-time worker, is itself capable of ensuring the achievement of the objective pursued, which includes the protection of a social security system that relies on contributions.55Accordingly, the application, in addition, of a reduction factor relative to part-time work goes beyond what is necessary to attain that objective and entails for the group of workers engaged in short part-time work, that is to say less than two thirds of comparable full-time work, a reduction in the amount of the retirement pension greater than that which would result from merely taking account pro rata temporis of their time worked.56In those circumstances, the answer to the first question is that Article 4(1) of Directive 79/7 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that the amount of retirement pension based on contributions of a part-time worker is to be calculated by multiplying a basic amount, established from the remuneration actually received and contributions actually paid, by a percentage which relates to the length of the period of contribution, that period being itself modified, by a reduction factor equal to the ratio of the time of part-time work actually carried out to the time of work carried out by a comparable full-time worker, and increased by the application of a factor of 1.5, to the extent that that legislation places at a particular disadvantage workers who are women as compared with workers who are men. The second question 57In the light of the answer to the first question, there is no need to reply to the second question. Costs 58Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that the amount of retirement pension based on contributions of a part-time worker is to be calculated by multiplying a basic amount, established from the remuneration actually received and contributions actually paid, by a percentage which relates to the length of the period of contribution, that period being itself modified, by a reduction factor equal to the ratio of the time of part-time work actually carried out to the time of work carried out by a comparable full-time worker, and increased by the application of a factor of 1.5, to the extent that that legislation places at a particular disadvantage workers who are women as compared with workers who are men. [Signatures]( *1 ) Language of the case: Spanish. | 60cb6-056d9a3-41f5 | EN |
A seafarer who maintains his residence in his Member State of origin, whilst working for an employer established in a Member State on board a vessel flying the flag of a third State and travelling outside of the territory of the EU falls within the scope of the regulation on the coordination of social security systems | 8 May 2019 ( *1 )(Reference for a preliminary ruling — Social security for migrant workers — Regulation (EC) No 883/2004 — Article 11(3)(e) — National of a Member State employed as a seaman on board a vessel flying the flag of a third State — Employer established in a Member State other than the worker’s State of residence — Determination of the applicable legislation)In Case C‑631/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 27 October 2017, received at the Court on 9 November 2017, in the proceedings SF v Inspecteur van de Belastingdienst, THE COURT (Third Chamber),composed of A. Prechal, President of the Chamber, F. Biltgen (Rapporteur), J. Malenovský, C.G. Fernlund and L.S. Rossi, judges,Advocate General: G. Pitruzzella,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 8 November 2018,after considering the observations submitted on behalf of:–SF, by V.J. de Groot and H. Menger, tax advisors,the Netherlands Government, by M.K. Bulterman and M.L. Noort, acting as Agents,the Greek Government, by E.-M. Mamouna, acting as Agent,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by M. van Beek and D. Martin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 10 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 149, p. 4) (‘Regulation No 883/2004’).2The request has been made in the course of proceedings between SF and the Inspecteur van de Belastingdienst (Inspector of Taxes, Netherlands, ‘the Inspector’) concerning SF’s affiliation to the Netherlands general social insurance scheme for the period from 13 August to 31 December 2013. Legal context 3Title II of Regulation No 883/2004 sets out the rules for determining the applicable social security legislation and includes Articles 11 to 16 of that regulation.4Article 11 of that regulation, headed ‘General rules’, provides:‘1. Persons to whom this regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.…3. Subject to Articles 12 to 16:(a)a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;(b)a civil servant shall be subject to the legislation of the Member State to which the administration employing him/her is subject;(c)a person receiving unemployment benefits in accordance with Article 65 under the legislation of the Member State of residence shall be subject to the legislation of that Member State;(d)a person called up or recalled for service in the armed forces or for civilian service in a Member State shall be subject to the legislation of that Member State;(e)any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.4. For the purposes of this Title, an activity as an employed or self-employed person normally pursued on board a vessel at sea flying the flag of a Member State shall be deemed to be an activity pursued in the said Member State. However, a person employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in another Member State shall be subject to the legislation of the latter Member State if he/she resides in that State. ……’5Articles 12 to 16 of Regulation No 883/2004 lay down special rules applicable to persons who have been posted (Article 12), persons pursuing an activity in two or more Member States (Article 13), persons who elected voluntary insurance or optional continued insurance (Article 14), contract staff of the European institutions (Article 15) and exceptions to Articles 11 to 15 of that regulation (Article 16). The dispute in the main proceedings and the question referred for a preliminary ruling 6From 13 August to 31 December 2013, SF, a Latvian national residing in Latvia, worked as a steward for Oceanwide Offshore Services B. V., an undertaking established in the Netherlands.7SF carried on that activity on board a vessel flying the flag of the Bahamas which, during that period, sailed over the German part of the continental shelf of the North Sea.8The Netherlands tax authorities issued SF with a notice of assessment for 2013 in respect of income tax and social insurance contributions. Following a complaint made by SF against that assessment, the Inspector upheld the notice only in so far as it declares SF to be liable for the social contributions to the Netherlands social insurance scheme for the period from 13 August to 31 December 2013.9SF brought an appeal before the Rechtbank Zeeland-West-Brabant (District Court, Zeeland-West-Brabant, Netherlands) against the Inspector’s decision, arguing that he does not come under that scheme.10Faced with the question whether SF was actually liable for those contributions and since it had doubts in that respect, that court decided to refer preliminary questions to the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).11The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) considers that, even though SF’s professional activity during the period in question may not be regarded as having taken place in the territory of an EU Member State, there is a sufficiently close connection with EU territory for Regulation No 883/2004 to apply to the present case. That court also considers that SF comes within the scope ratione personae of that regulation.12According to that court, the situation which arose in the case pending before the Rechtbank Zeeland-West-Brabant (District Court, Zeeland-West-Brabant), in which the salaried activity of the worker in question is performed on a vessel flying the flag of a third State, does not fall within the scope of Article 11(3)(a) to (d), nor that of Article 11(4) of Regulation No 883/2004.13It considers that such a situation may, however, fall within the scope of Article 11(3)(e) of Regulation No 883/2004, which provides that any other persons to whom subparagraphs (a) to (d) of Article 11(3) do not apply are to be subject to the legislation of the Member State of residence.14In that regard, the referring court stated that it heard arguments to the effect that Article 11(3)(e) of Regulation No 883/2004 does not apply to a situation such as the one in the main proceedings, given that it is clear from the Explanatory notes on modernised social security coordination — Commission Regulations (EC) No 883/2004 and (EC) No 987/2009, for the month of January 2011, that that provision applies only to economically non-active persons.15That court considers, however, that such an interpretation is not apparent from the wording of the provision at issue, which is a conflict rule formulated in general terms and which applies, by default, to persons other than those referred to in Article 11(3)(a) to (d) and Articles 12 to 16 of Regulation No 883/2004.16It was further argued before the referring court that, although they do not apply directly, Article 11(3)(a) and Article 11(4) of Regulation No 883/2004 should apply by analogy and lead to the designation of the law of the Member State in which the employer is established, in the same way as the Court of Justice held in its judgments of 29 June 1994, Aldewereld (C‑60/93, EU:C:1994:271), and of 19 March 2015, Kik (C‑266/13, EU:C:2015:188), with regard to the provisions of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 1) (‘Regulation No 1408/71’). However, that court considers that the system of conflict-of-law rules introduced by Regulation No 883/2004 is more complete and does not contain any lacunae, such that it is not necessary, in the present case, to draw on that case-law.17Nevertheless, the referring court considers that doubts remain over the interpretation of the provisions of Regulation No 883/2004 for the purposes of determining the applicable legislation in a situation such as the one at issue in the main proceedings.18In the light of those considerations, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Which legislation applies under Regulation No 883/2004 in a situation where the interested party (a) resides in Latvia, (b) has Latvian nationality, (c) is employed by an employer established in the Netherlands, (d) works as a seafarer, (e) works on board a vessel flying the flag of the Bahamas, and (f) performs those activities outside the territory of the European Union?’ Consideration of the question referred for a preliminary 19By its question, the referring court asks, in essence, whether Article 11(3)(e) of Regulation No 883/2004 must be interpreted to the effect that a situation such as the one at issue in the main proceedings in which a person, whilst working as a seaman for an employer established in a Member State on board a vessel flying the flag of a third State and travelling outside of the territory of the European Union, maintained his residence in his Member State of origin, falls within the scope of that provision, such that the applicable national legislation is that of the Member State of residence of that person.20It should be noted at the outset that, where a person falls within the scope ratione personae of Regulation No 883/2004, as defined in Article 2 thereof, the rule in Article 11(1) of that regulation that the legislation of a single Member State is to apply is, in principle, appropriate, and the national legislation applicable is determined in accordance with the provisions of Title II of that regulation (see, to that effect, judgments of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 47 and the case-law cited, and of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 42 and the case-law cited).21In the present case, it is clear from the file before the Court that, during the period at issue in the main proceedings, SF, whilst maintaining his residence in his Member State of origin, that is to say, Latvia, worked as a seaman for an employer established in another Member State, that is to say, the Netherlands, on board a vessel flying the flag of a third State, travelling outside of EU territory.22In that regard, the Court has already held that the mere fact that a worker carries on his activities outside the territory of the European Union is not sufficient to exclude the application of the EU rules on free movement of workers, in particular Regulation No 883/2004, as long as the employment relationship retains a sufficiently close connection with that territory (see, to that effect, judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 42 and the case-law cited).23According to the case-law of the Court, a sufficiently close connection between the employment relationship in question and the territory of the European Union derives, inter alia, from the fact that an EU citizen, who is resident in a Member State, has been engaged by an undertaking established in another Member State on whose behalf he carries on his activities (judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 43 and the case-law cited).24As the referring court stated, it follows that, even though in the present case SF’s activities were carried on outside EU territory, the employment relationship at issue retains a sufficiently close link with that territory, given that, during the period at issue, SF had maintained his residence in Latvia and his employer was established in the Netherlands.25Accordingly, a situation such as the one at issue in the main proceedings must be regarded as falling within the scope of Regulation No 883/2004 and the national legislation applicable in the main proceedings must, therefore, be determined in accordance with the provisions of Title II of that regulation.26In the present case, it is common ground that a person such as SF does not come under the special rules under Articles 12 to 16 of Regulation No 883/2004 concerning persons who have been posted, those pursuing an activity in two or more Member States, those who elected voluntary or optional insurance, or those who are contract staff of the European institutions.27Moreover, the interested person does not come under the situations covered by subparagraphs (a) to (d) of Article 11(3) of Regulation No 883/2004 concerning persons pursuing an activity as an employed person in a Member State, civil servants, persons receiving unemployment benefits, or persons called up or recalled for service in the armed forces or for civilian service in a Member State.28In addition, since SF works as a seaman on board a vessel flying the flag of a third State, he also falls outside the general rule in Article 11(4) of Regulation No 883/2004 designating the legislation of the flag Member State with regard to seafarers (see, to that effect, judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 56).29As to the question whether Article 11(3)(e) of Regulation No 883/2004 applies to situation such as the one at issue in the main proceedings, it should be noted that, according to the settled case-law of the Court, it is necessary, in order to interpret a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgments of 15 October 2014, Hoštická and Others, C‑561/13, EU:C:2014:2287, paragraph 29 and the case-law cited, and of 19 September 2018, González Castro, C‑41/17, EU:C:2018:736, paragraph 39 and the case-law cited), while the origins of the provision may also provide information relevant to its interpretation (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 50 and the case-law cited).30It is apparent from the wording of Article 11(3)(e) of Regulation No 883/2004 that ‘any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States’.31As the Advocate General stated in points 34 and 35 of his Opinion, it follows from a literal analysis of that provision that the EU legislature used general terms, in particular the words ‘any other person’ and ‘without prejudice to other provisions of this Regulation’, in order to make Article 11(3)(e) a residual rule which is intended to apply to all persons who find themselves in a situation which is not specifically governed by other provisions of that regulation and to introduce a complete system for determining the applicable legislation.32Furthermore, the wording of that provision does not make any provision for limiting its scope to economically non-active persons.33With regard to the objectives pursued by Regulation No 883/2004, it should be noted that, in accordance with settled case-law, the provisions of Title II of Regulation No 883/2004, of which Articles 11 to 16 form a part, constitute a complete and uniform system of conflict rules which are intended not only to prevent the simultaneous application of a number of national legislative systems and the complication which might ensue, but also to ensure that the persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them (judgments of 14 June 2016, Commission v United Kingdom, C‑308/14, EU:C:2016:436, paragraph 64, and of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 41 and the case-law cited).34More particularly, as regards Article 11(3) of Regulation No 883/2004, the Court has held that the purpose of that provision is to determine the national legislation applicable to persons who are in one of the situations referred to in subparagraphs (a) to (e) of Article 11(3) (judgment of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 43 and the case-law cited).35It is true that the Court has held that Article 11(3)(e) of Regulation No 883/2004 applies, inter alia, to economically non-active persons (see, to that effect, judgments of 14 June 2016, Commission v United Kingdom, C‑308/14, EU:C:2016:436, paragraph 63).36However, as the Advocate General stated in points 44 and 45 of his Opinion, a restrictive interpretation of Article 11(3)(e) of Regulation No 883/2004 limiting its scope solely to economically non-active persons may deprive persons who do not come under the situations referred to in subparagraphs (a) to (d) of Article 11(3) or other provisions of Regulation No 883/2004 of social security cover because there is no legislation which is applicable to them.37With regard to the origins of Article 11(3)(e) of Regulation No 883/2004, which are set against a background of modernisation and simplification of the rules contained in Regulation No 1408/71, it should be pointed out, as the Advocate General also stated in point 49 of his Opinion, that that provision replaced Article 13(2)(f) of Regulation No 1408/71, which provided that ‘a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17, shall be subject to the legislation of the Member State in whose territory he resides’.38In that regard, it should be recalled that Article 13 of Regulation No 1408/71, and more particularly paragraph 2(f) thereof, was given a broad interpretation in order to achieve the aim of the legislation of which it forms part, which is to prevent persons who come within the scope of that regulation being left without social security cover because there is no legislation which is applicable to them (see, to that effect, judgment of 11 June 1998, Kuusijärvi, C‑275/96, EU:C:1998:279, paragraph 40).39Article 11(3)(e) of Regulation No 883/2004 pursues the same objective and, to the extent that that provision is worded in terms broader than those used in Article 13(2)(f) of Regulation No 1408/71, in that it expressly covers persons who are in a situation which does not come under the other provisions of that regulation, it cannot be interpreted restrictively.40Consequently, Article 11(3)(e) of Regulation No 883/2004 must be interpreted to the effect that it applies to all persons who are not covered by subparagraphs (a) to (d) of that provision and not only those who are economically non-active.41As the Advocate General stated in point 50 of his Opinion, that interpretation cannot be called into question by the Explanatory notes of the Commission, referred to in paragraph 14 above, or the Practical guide — The applicable legislation in the EU, EEA and in Switzerland, drawn up and approved by the Administrative Commission for the Coordination of Social Security Systems and published in December 2013. Even though those documents are useful tools for interpreting Regulation No 883/2004, they are not legally enforceable and cannot, therefore, bind the Court in the interpretation of that regulation.42In view of the foregoing, a situation such as the one at issue in the main proceedings is governed by Article 11(3)(e) of Regulation No 883/2004 which stipulates that the applicable national legislation is that of the Member State of residence of the interested party.43That finding cannot be called into question by the fact, raised by the Netherlands Government at the hearing, that some Member States make the interested party’s affiliation to the national social security scheme subject to the condition that he must work as an employee on their territory, so that, in a situation such as the one at issue in the main proceedings, the interested party may not be affiliated to a social security scheme and may be left without social protection.44In the present case, it is not apparent from the file before the Court that the national legislation of the Member State of residence of the interested party makes provision for such a condition.45In any event, it is clear from the settled case-law of the Court that, although it is for the legislation of each Member State to lay down the conditions for creating the right to become affiliated to a social security scheme, the Member States are nevertheless required to abide by the provisions of EU law in force when setting those conditions. In particular, the conflict rules laid down by Regulation No 883/2004 are mandatory for the Member States, and the latter do not have the option to determine to what extent their own legislation or that of another Member State is applicable (see, to that effect, judgment of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraphs 47 and 48 and the case-law cited).46Accordingly, the conditions establishing the right to affiliate to a social security scheme cannot have the effect of excluding from the scope of the legislation at issue persons to whom, pursuant to Regulation No 883/2004, that legislation is applicable (judgment of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 49 and the case-law cited).47In the light of all of the foregoing considerations, the answer to the question referred is that Article 11(3)(e) of Regulation No 883/2004 must be interpreted to the effect that a situation such as the one at issue in the main proceedings in which a person, whilst working as a seaman for an employer established in a Member State on board a vessel flying the flag of a third State and travelling outside of the territory of the European Union, maintained his residence in his Member State of origin, falls within the scope of that provision, such that the applicable national legislation is that of the Member State of residence of that person. Costs 48Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Article 11(3)(e) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, must be interpreted to the effect that a situation such as the one at issue in the main proceedings in which a person, whilst working as a seaman for an employer established in a Member State on board a vessel flying the flag of a third State and travelling outside of the territory of the European Union, maintained his residence in his Member State of origin, falls within the scope of that provision, such that the applicable national legislation is that of the Member State of residence of that person. [Signatures]( *1 ) Language of the case: Dutch. | 20910-ceff866-40d1 | EN |
The Austrian system of remuneration and advancement of State officials and contractual public servants remains contrary to the prohibition of discrimination on grounds of age | 8 May 2019 ( *1 )(Reference for a preliminary ruling — Social policy — Prohibition of all discrimination on grounds of age — Directive 2000/78/EC — Exclusion of professional experience obtained before the age of 18 — New system of remuneration and advancement — Maintenance of the difference in treatment — Freedom of movement for workers — Article 45 TFEU — Regulation (EU) No 492/2011 — Article 7(1) — National legislation providing for account to be taken of a proportion of previous periods of service)In Case C‑24/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 19 December 2016, received at the Court on 18 January 2017, in the proceedings Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst v Republik Österreich, THE COURT (First Chamber),composed of R. Silva de Lapuerta, Vice-President of the Court, acting as President of the First Chamber, A. Arabadjiev (Rapporteur), E. Regan, C.G. Fernlund and S. Rodin, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: K. Malacek, Administrator,having regard to the written procedure and further to the hearing on 12 September 2018,after considering the observations submitted on behalf of:–the Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst, by M. Riedl and V. Treber-Müller, Rechtsanwälte,the Austrian Government, by G. Hesse and J. Schmoll, acting as Agents,the European Commission, by B.‑R. Killmann and D. Martin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 6 December 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 45 TFEU, Articles 21 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 7(1) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1) and of Articles 1, 2, 6 and 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).2The request has been made in the context of proceedings between the Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst (Austrian Confederation of Trade Unions, Public Service Union) (‘the Gewerkschaftsbund’) and the Republik Österreich (the Republic of Austria) concerning the lawfulness of the federal system for the remuneration and advancement of contractual public servants adopted by the Austrian legislature in order to put an end to discrimination on the ground of age. Legal context European Union law Regulation No 492/2011 3Chapter I of Regulation No 492/2011, entitled ‘Employment, equal treatment and workers’ families’, includes Section 2 thereof, relating to employment and equality of treatment. That section contains Article 7 of that regulation, which provides, in paragraph 1 thereof:‘A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.’ Directive 2000/78 4In accordance with Article 1 thereof, the purpose of Directive 2000/78 ‘is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’5Article 2 of that directive provides:‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.2. For the purposes of paragraph 1:(a)direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;(b)indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:(i)that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or…’6Article 6 of that directive provides:‘1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.Such differences of treatment may include, among others:the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;(c)the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’7Article 17 of that directive states:‘Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.’ Austrian law 8The referring court states that the national legislation on the remuneration and advancement of State contractual public servants was amended on numerous occasions as a result of the incompatibility of some of its provisions with EU law. The new system of remuneration and advancement of those public servants, resulting from legislative amendments adopted during 2015 and 2016, sought in particular to put an end to discrimination on grounds of age caused by the previous system of remuneration and advancement in force. The Law on contractual public servants 9Paragraph 19(1) of the Vertragsbedienstetengesetz 1948 (Law on contractual public servants 1948), as amended by the Federal Law of 30 August 2010 (BGBl. I, 82/2010) (‘the Law on contractual public servants’), provided:‘Advancement shall be determined on the basis of a reference date. Unless otherwise provided in this paragraph, the period required for advancement to the second incremental step for each job category shall be 5 years and 2 years for other incremental steps.’10Paragraph 26(1) of the Law on contractual public servants provided:‘Subject to the restrictions set out in subparagraphs 4 to 8, the reference date to be taken into account for purposes of advancement by an incremental step shall be calculated by counting backwards from the date of appointment for periods after 30 June of the year in which 9 school years were completed or ought to have been completed after admission to the first level of education:(1)the periods specified in subparagraph 2 shall be taken into account in their entirety;(2)other periods …’ The amended Law on contractual public servants 11In order to address the discrimination on grounds of age found in the judgments of the Court of 18 June 2009, Hütter (C‑88/08, EU:C:2009:381), and of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359), the Law on contractual public servants was amended with retroactive effect by the Bundesbesoldungsreform 2015 (Federal Law on Remuneration Reform, 2015) (BGBl. I, 32/2015) and by the Besoldungsrechtsanpassungsgesetz (Law adjusting remuneration legislation) of 6 December 2016 (BGB1 I, 104/2016) (‘the amended Law on contractual public servants’).12Under the heading ‘Grading and advancement’, Paragraph 19(1) of the amended Law on contractual public servants provides that:‘… Grading and further advancement shall be determined on the basis of remuneration seniority.’13Under Paragraph 26 of the amended Law on contractual public servants, entitled ‘Remuneration seniority’:‘1. Remuneration seniority shall comprise the length of the periods effective for advancement spent in the employment relationship, plus the length of the accreditable previous service periods.2. Periods shall be added to remuneration seniority as previous service periods which are completedin an employment relationship with a local authority or municipal association of a Member State of the European Economic Area, the Turkish Republic or the Swiss Confederation;in an employment relationship with a body of the European Union or with an intergovernmental organisation of which the Republic of Austria is a member;(3)in which the contractual public servant was entitled to a pension for injury based on the Heeresversorgungsgesetz (Law on protection of the armed forces) … and(4)for service in:military service …training service …civilian service …(d)obligatory military service, a comparable military training service or an obligatory civilian substitute service in a Member State of the European Economic Area, the Turkish Republic or the Swiss Confederation.…3. Apart from the periods listed in subparagraph 2, periods of exercising a relevant occupation or relevant administrative traineeship up to a maximum of 10 years in total shall also be accredited as previous service periods. …’14Paragraph 94a of the amended Law on contractual public servants provides that, during the transition of active contractual public servants in the new system of remuneration and advancement, it is necessary to apply Paragraphs 169c, 169d and 169e of the Gehaltsgesetz 1956 (Law on salaries 1956, BGBl. 54/1956), as amended by the Federal Law on Remuneration Reform of 2015 and by the Law on Remuneration Reform of 2016 (‘the amended Law on remuneration’), which concern the regrading of public servants already in service in the new remuneration and advancement system.15In accordance with Paragraph 100(70)(3) of the amended Law on contractual public servants, Paragraphs 19 and 26 of that law, including their headings, enter into force in the version of the Federal Law on Remuneration Reform, 2015, published in the BGBl. I, 32/2015, ‘on 1 July 1948; all the versions of those provisions published before 11 February 2015 shall cease to apply in current and future procedures’. The amended Law on remuneration 16Under Paragraph 169c of the amended Law on remuneration:‘1. All civil servants in the job categories and salary groups specified in Paragraph 169d who were employed on 11 February 2015 shall be reclassified in the new remuneration system created by this Federal Act in accordance with the following provisions solely on the basis of their previous salaries. Civil servants shall initially be ranked in a salary grade in the new remuneration system based on their previous salary in which that previous salary is preserved. …2. The transition of the civil servant to the new remuneration system shall occur through a fixed determination of his or her remuneration seniority. The fixed determination shall be based on the transition amount. The transition amount is the full salary excluding any extraordinary advancements, which was calculated based on the monthly pay of the civil servant for February 2015 (transition month). …2a. The base salary for that salary grade that was actually applied to the salaries paid for the transition month shall be used as the transition amount (grading according to the payslip). There shall be no assessment of whether the reason for and amount of the salary payments were correct. A subsequent correction of the salary payments shall be taken into account only in so far as when calculating the transition amountfactual errors that occurred during inputting in an automated data processing system are corrected, anderroneous inputting clearly departs from the intended inputting as shown by the documents already existing at the time of the inputting.2b. If the actual grading according to the payslip is lower in terms of amount than the grading protected by statute, then upon application by the civil servant, the grading protected by statute shall be used for calculating the transition amount, unless a different approach is mandated, because of the existence of a mere temporary grading, in accordance with Paragraph 169d(5). The grading protected by statute is the salary grade that results when the effective date is applied. The effective date is the date that results when the following periods are counted backwards from the first day of the transition month. To be counted backwards are:the periods that, at the time that the transition month commences, have been definitively accredited as previous service periods, to the extent that such periods were completed before the age of 18 and have become effective for advancement, andthe periods completed since the date of appointment, to the extent that they have become effective for advancement.No other periods shall be counted backwards. For each 2 years that have elapsed since the effective date, the next higher salary grade shall be applicable in each case as the grading protected by statute. A salary grade shall be deemed as having been attained on 1 January or 1 July following completion of the two-year period, unless advancement was postponed or suspended on such date. The period of 2 years shall be deemed to have elapsed respectively on 1 January or 1 July where it is completed before the following 31 March or 30 September respectively.2c. Subparagraphs 2a and 2b transpose into Austrian law, in the field of the Staff Regulations of federal employees and teaching personnel of the Länder, Articles 2 and 6 of [Directive 2000/78] as interpreted by the Court of Justice of the European Union in the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005). The procedures for the transition of civil servants appointed before the entry into force of the federal reform of remuneration in 2015 were therefore fixed in the new remuneration system and provide that the salary grade at which they are now placed is to be determined solely on the basis of the salary acquired under the old remuneration system, although that system was based on discrimination on the ground of the age of the civil servant and although that subsequent advancement to a higher salary grade is now calculated solely on the basis of professional experience since the entry into force of the reform of remunerations in 2015.3. The remuneration seniority of reclassified civil servants shall be fixed in line with the period of time required for advancement from the first salary grade (from the first day) to that salary grade within the same job category for which the next lower salary is cited as an amount to the transition amount in the version applicable on 12 February 2015. If the transition amount is the same as the lowest amount cited for a salary grade within the same job category, this salary grade shall be the determining one. All comparable amounts shall be rounded to full euros.4. The remuneration seniority fixed in accordance with subparagraph 3 shall be extended by the period of time that elapsed between the time of the last advancement to a higher salary and the end of the transition month, provided that that period is useful for the advancement.6. … If the civil servant’s new salary is below the transition amount, a maintenance premium equal to the difference in the amount, taken into consideration for the calculation of the retirement pension, shall be paid to him as a supplementary premium …, until he reaches a salary level higher than the transition amount. The comparison of the amounts shall include any seniority premiums or exceptional advancements.9. In order to maintain expectations connected with a future advancement, the exceptional advancement or the seniority premium in the old remuneration system, a maintenance premium, taken into consideration for the calculation of the retirement pension, shall be payable to the civil servant as a supplementary premium …, as soon as he reaches the transitional grade … The dispute in the main proceedings and the questions referred for a preliminary ruling 17The dispute in the main proceedings is between the Gewerkschaftsbund, the trade union representing, in particular, contractual public servants of the civil service of the Republic of Austria, in its capacity as employer.18The Gewerkschaftsbund brought an action before the Oberster Gerichtshof (Supreme Court, Austria), under Paragraph 54(2) of the Arbeits- und Sozialgerichtsgesetz (Law governing labour and social courts), for an order that the new system of remuneration and advancement of contractual public servants is contrary to EU law.19In support of its action, the Gewerkschaftsbund claims that the discrimination on the ground of age resulting from the old system of remuneration and advancement was maintained by the new system, on the ground that the remuneration payable for February 2015 is taken into account in the new system as a reference point for the regrading of the contractual public servants concerned for salary purposes. It added that the retroactive abolition of the ‘advancement reference date’, which had thus far been applicable to those public servants, deprived the latter of the possibility to check the legality of that remuneration.20The Oberster Gerichtshof (Supreme Court) questions, first, whether the modalities for the transition of contractual public servants from the old system of remuneration and advancement to the new system, in particular in so far as it does not provide for any financial compensation for contractual public servants who are treated unfavourably and the new system prevents regraded contractual public servants from obtaining a review of their reference date according to the rules of the old system of remuneration and advancement, are compatible with EU law.21Secondly, the referring court questions the compatibility with EU law of the rules of the new system of remuneration and advancement according to which previous professional experience is taken into account according to conditions that differ depending on the employer with whom that experience was acquired.22That court notes that the amended Law on remuneration seeks to prevent significant reductions in the level of remuneration of transitioned contractual public servants. That court adds that that reform responds also to an objective of neutrality in terms of costs. Furthermore, due to the great number of contractual public servants concerned, it would not have been possible, within a short period, to carry out an individual examination of the situation of each of those public servants prior to their regrading.23The Oberster Gerichtshof (Supreme Court) considers that there is a significant difference between the reform resulting from the amended Law on remuneration and the systems of remuneration that the Court examined in the cases giving rise to the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561). In particular, according to that court, the system of remuneration and advancement at issue in those cases was discriminatory on grounds of age, since the age of employees was taken into account as a benchmark. No category of employees was thus favoured. As a result, all the active employees, or at least a large number of them, were affected by the old discriminatory system. By contrast, in the main proceedings, under the old system of remuneration and advancement, a category of contractual public servants was treated unfavourably, namely the category of contractual public servants who acquired experience before the age of 18.24In the context of the new system of remuneration and advancement, those contractual public servants could not obtain a review of the reference date resulting from the application of the rules of the old system of remuneration and advancement. However, that new system of remuneration and advancement does not deprive them of the right to bring an effective judicial appeal before the court in order to review the validity of a norm of that system in relation to EU law and Austrian constitutional law.25In those circumstances the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:‘(1)Is European Union law, in particular Articles 1, 2 and 6 of [Directive 2000/78], in conjunction with Article 21 of the Charter …, to be interpreted as precluding national legislation under which a remuneration system which (in relation to the accreditation of previous service periods completed before the age of 18) discriminates on grounds of age is replaced by a new remuneration system, under which, however, the transition of existing public servants to the new remuneration system occurs in such a way that the new system is implemented retroactively to the date on which the original law entered into force, but the initial grading in the new remuneration system is based on the salary actually paid under the old remuneration system for a specific transition month (February 2015), with the result that the previously existing age discrimination continues in terms of its financial effects?If the answer to Question [1(a)] is in the affirmative:Is European Union law, in particular Article 17 of [Directive 2000/78], to be interpreted as meaning that existing public servants who were discriminated against in the old remuneration system in relation to the accreditation of previous service periods completed before the age of 18 must receive financial compensation if that age discrimination continues in terms of its financial effects even after transition to the new remuneration system?If the answer to Question [1(a)] is in the negative:Is European Union law, in particular Article 47 of the Charter …, to be interpreted as meaning that the fundamental right to effective legal protection enshrined therein precludes national legislation under which the age-discriminatory remuneration system is no longer to apply in current and future procedures and the transition of the remuneration of existing public servants to the new remuneration system is to be based solely on the salary calculated or paid for the transition month?Is European Union law, in particular Article 45 TFEU, Article 7(1) of Regulation [No 492/2011], and Articles 20 and 21 of the Charter …, to be interpreted as precluding legislation under which previous service periods completed by a contractual public servantin an employment relationship with a local authority or municipal association of a Member State of the [EEA], the Republic of Turkey or the Swiss Confederation, or with an organisation of the European Union or an intergovernmental organisation of which [the Republic of] Austria is a member, or with any similar body, must be accredited in their entirety,in an employment relationship with another employer, only when exercising a relevant occupation or relevant administrative traineeship, must be accredited up to a maximum of 10 years in total?’ Consideration of the questions referred Question 1(a) 26By Question 1(a), the referring court asks, in essence, whether Articles 1, 2 and 6 of Directive 2000/78, read in combination with Article 21 of the Charter, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, entering into force retroactively, that, for the purposes of putting an end to discrimination on grounds of age, provides for the transition of active contractual public servants to a new system of remuneration and advancement in the context of which the initial grading of those contractual public servants is calculated according to their last remuneration paid under the previous system.27It is necessary, as a first step, to determine whether the national legislation under examination involves a difference in treatment within the meaning of Article 2(1) of Directive 2000/78.28In that regard, it should be borne in mind that, under that provision, the ‘principle of equal treatment’ means that there is no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive. Article 2(2)(a) of that directive states that, for the purposes of paragraph 1 of Article 2, direct discrimination occurs where one person is treated less favourably than another is, in a comparable situation, on any of the grounds referred to in Article 1 of that directive.29In the main proceedings, the categories of persons relevant for the purposes of that comparison are, first, contractual public servants active at the time of the transition whose professional experience was, even if partially, acquired before the age of 18 (‘the contractual public servants treated unfavourably by the old system’) and, secondly, those who obtained, after reaching that age, experience of the same nature and of a comparable duration (‘the contractual public servants favoured by the old system’).30It is apparent from the case file before the Court that, by the adoption of Paragraph 169c of the amended Law on remuneration, the Austrian legislature introduced a mechanism for regrading carried out on the basis of a ‘transition amount’ calculated in accordance with the rules of the old system. In particular, that ‘transition amount’, which under Paragraph 169c(2) of that law is the basis for the fixed determination of the remuneration seniority of transitioned contractual public servants, is calculated on the basis of the remuneration paid to those public servants the month preceding their transition to the new system.31It is apparent from the case file before the Court that the old system of remuneration and advancement has characteristics analogous to those of the system at issue in the case giving rise to the judgment of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359).32In that regard, the Court ruled, in that judgment, that national legislation that, in order to put an end to discrimination on grounds of age in relation to civil servants, takes into account periods of study and service completed before the age of 18, but that, at the same time, introduces — with regard to civil servants who suffered from that discrimination — a three-year extension of the period required to progress from the first to the second incremental step in each job category and each salary group, maintains direct discrimination on grounds of age, for the purposes of Article 2(1) and (2)(a) and Article 6(1) of Directive 2000/78.33Moreover, it should be noted that it is apparent from the actual wording used in Paragraph 169c(2c) of the amended Law on remuneration that the old system of remuneration and advancement was based on discrimination on grounds of the age of the contractual public servants.34In those circumstances, a regrading mechanism, such as that created by the amended Law on remuneration, set out in paragraph 30 of the present judgment, is capable of maintaining the effects produced by the old system of remuneration and advancement, as a result of the link it establishes between the last salary received and the grading in the new system of remuneration and advancement.35It is necessary, therefore, to consider that Paragraph 169c of the amended Law on remuneration maintains a difference in treatment between the contractual public servant treated unfavourably by the old system and the contractual public servants treated favourably by that system, since the amount of remuneration that will be received by the former will be less than that that will be paid to the latter solely on the ground of the age they were at the time of their recruitment, although they are in comparable situations (see, to that effect, judgment of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 40).36It is necessary, at a second stage, to examine whether that difference in treatment based on age is capable of being justified under Article 6(1) of Directive 2000/78.37The first subparagraph of Article 6(1) of Directive 2000/78 states that the Member States may provide that differences of treatment on grounds of age do not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.38The Court has held on numerous occasions that Member States enjoy a broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 34 and the case-law cited).39In that context, the referring court notes that the legislation at issue in the main proceedings is, first and foremost, intended to establish a non-discriminatory system of remuneration and advancement. That court notes that that legislation pursues objectives of fiscal neutrality, procedural economy, respect for acquired rights and the protection of legitimate expectations.40As regards, first, the objective of financial neutrality pursued by the national legislation at issue in the main proceedings, it must be borne in mind that EU law does not preclude Member States from taking account of budgetary considerations at the same time as political, social or demographic considerations, provided that in so doing they observe, in particular, the general principle of the prohibition of age discrimination. In that regard, while budgetary considerations may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78. This also applies to the considerations of an administrative nature mentioned by the referring court and by the Austrian Government (see, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 36).41As regards, secondly, respect for the acquired rights and the protection of the legitimate expectations of contractual public servants treated favourably by the old system with regard to their remuneration, it should be noted that these constitute legitimate employment-policy and labour-market objectives that can justify, for a transitional period, the maintenance of earlier pay and, consequently, the maintenance of different treatment based on age (see, to that effect, judgment of 11 November 2014, Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 42).42Those objectives cannot, however, justify a measure that maintains definitively, if only for certain persons, the age-based difference in treatment that the reform, of which such a measure forms part, is designed to eliminate. Such a measure is not appropriate for the purpose of establishing a non-discriminatory system for persons who are treated unfavourably (see, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 39 and the case-law cited).43In this case, Paragraph 169c of the amended Law on remuneration provides for various mechanisms in order to prevent a significant reduction of the remuneration of regraded contractual public servants. Amongst those mechanisms is the payment of a maintenance premium equal to the difference between the amount of the new salary received by the transitioned contractual public servant and the transition amount. That maintenance premium is granted due to the fact that, following his transition, the contractual public servant is subject to a salary scale of the new system of remuneration and advancement to which is associated a salary level immediately below that which he received in the last place under the old system. Also amongst those mechanisms is the increase of between 6 and 18 months of the remuneration seniority of the transitioned contractual public servant.44As the Austrian Government pointed out at the hearing, all those mechanisms apply, without distinction, to all of the contractual public servants who were comprehensively transitioned to the new system of remuneration and advancement, whether or not those public servants were treated unfavourably by the old system of remuneration and advancement.45In those circumstances, it should be noted that, unlike the cases giving rise to the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561), in which the gap in remuneration between the two categories of public servants at issue in those cases lessened, and, in some cases, progressively disappeared, it is not apparent from the case file before the Court in the present case that the mechanisms provided for by the legislation at issue allow a gradual convergence of the treatment of contractual public servants treated unfavourably by the old system with the treatment of contractual public servants treated favourably, so that in the medium or indeed the short term, the former will ‘catch up’ and enjoy the advantages granted to the latter. Those mechanisms, consequently, do not lessen, after a specific period, the gap in remuneration existing between the contractual public servants who are treated favourably and contractual public servants who are treated unfavourably.46Therefore, the legislation at issue in the main proceedings is not appropriate for the purpose of establishing a non-discriminatory system for contractual public servants treated unfavourably by the old system of remuneration and advancement. On the contrary, it maintains with respect to them the discrimination on grounds of age resulting from the previous system.47It follows from all the foregoing considerations that the answer to Question 1(a) is that Articles 1, 2 and 6 of Directive 2000/78, read in combination with Article 21 of the Charter, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, entering into force retroactively, that, for the purposes of putting an end to discrimination on grounds of age, provides for the transition of active contractual public servants to a new system of remuneration and advancement in the context of which the initial grading of those contractual public servants is calculated according to their last remuneration paid under the previous system. Question 1(b) 48Question 1(b) posed by the referring court refers to Article 17 of Directive 2000/78.49It should be noted that, under Article 17 of Directive 2000/78, Member States are to lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and to take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.50It is apparent from the Court’s case-law that that article requires the Member States to apply sanctions to any infringements of national provisions adopted in order to implement that directive (see, to that effect, judgment of 25 April 2013, Asociația Accept, C‑81/12, EU:C:2013:275, paragraph 61).51In the main proceedings, it is not apparent from the case file before the Court that infringements of national provisions adopted in order to transpose that directive are at issue.52The interpretation of Article 17 of Directive 2000/78 is therefore not necessary for the purposes of giving a ruling in the main proceedings.53In accordance with the power recognised by the Court’s settled case-law, and in particular by the judgment of 21 September 2017, Beshkov (C‑171/16, EU:C:2017:710, paragraph 33 and the case-law cited), it is necessary to reformulate Question 1(b) as seeking in essence to ascertain whether EU law must be interpreted as meaning that, where discrimination, contrary to EU law, has been established, as long as measures reinstating equal treatment have not been adopted, the restoration of equal treatment, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old system of remuneration and advancement the same benefits as those enjoyed by the contractual public servants treated favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale and, consequently, granting financial compensation to contractual public servants discriminated against.54In that regard, it should be noted that, according to the Court’s settled case-law, it is for the national courts, taking into account the whole body of rules of national law and applying methods of interpretation recognised by that law, to decide whether and to what extent a national provision can be interpreted in conformity with Directive 2000/78, without having recourse to an interpretation contra legem of the national provision (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 74).55If it is not possible to construe and apply the national legislation in conformity with that directive, it should also be borne in mind that, by reason of the principle of primacy of EU law, which extends also to the principle of non-discrimination on grounds of age, conflicting national legislation that falls within the scope of EU law must be disapplied (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 89).56It is also apparent from the Court’s settled case-law that, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category. Persons treated unfavourably must therefore be placed in the same position as persons enjoying the advantage concerned (see, to that effect, judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 79 and the case-law cited).57In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and must apply to persons within the disadvantaged category the same arrangements as those enjoyed by the persons in the other category. That obligation persists regardless of whether or not the national court has been granted competence under national law to do so (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 80 and the case-law cited).58Nevertheless, such an approach is intended to apply only if there is a valid point of reference (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 81 and the case-law cited).59In the present case, firstly, as is apparent from the answer to Question 1(a), and more particularly from paragraphs 32 and 33 of the present judgment, the rules of the old system of remuneration and advancement created direct discrimination on grounds of age, for the purposes of Directive 2000/78.60Secondly, the rules of the remuneration and advancement applicable to contractual public servants treated favourably are those that allow contractual public servants who are treated unfavourably to be promoted without discrimination.61Therefore, as long as measures reinstating equal treatment have not been adopted, the reinstating thereof, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old remuneration and advancement system the same benefits as those enjoyed by the contractual public servants treated favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale (see, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 48).62It follows also that a contractual public servant who is treated unfavourably by the old system of remuneration and advancement is entitled to receive payment, from the employer, of compensation amounting to the difference between the remuneration that the contractual public servant concerned should have received if he had not been treated in a discriminatory way and the remuneration he actually received.63It should be noted that the considerations in paragraphs 61 and 62 of the present judgment are applicable only until measures reinstating equal treatment have been adopted by the national legislature (see, to that effect, judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 87).64It must be noted that, although the Member States are obliged, in accordance with Article 16 of Directive 2000/78, to ensure that any laws, regulations or administrative provisions contrary to the principle of equal treatment are abolished, that article does not require them to adopt specific measures to be taken in the event of a breach of the prohibition of discrimination but leaves them free to choose, from among the different solutions suitable for achieving its intended purpose, the one that appears to them to be the most appropriate for that purpose, depending on the situations that may arise (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 88).65In the light of the above considerations, the answer to Question 1(b) is that, in the event that national provisions cannot be interpreted in conformity with Directive 2000/78, the national court is required to provide, within the limits of its jurisdiction, the legal protection that individuals derive from that directive and to ensure the full effectiveness of that directive, disapplying, if need be, any incompatible provision of national legislation. EU law must be interpreted as meaning that, where discrimination, contrary to EU law, has been established, as long as measures reinstating equal treatment have not been adopted, the restoration of equal treatment, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old system of remuneration and advancement the same benefits as those enjoyed by the contractual public servants treated favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale and, consequently, granting compensation to contractual public servants discriminated against which is equal to the difference between the amount of remuneration the contractual public servant should have received if he had not been treated in a discriminatory manner and the amount of remuneration he actually received. Question 1(c) 66In light of the answer to Question 1(a), there is no need to answer Question 1(c). The second question 67By its second question, the referring court asks, in essence, whether Article 45 TFEU and Article 7(1) of Regulation No 492/2011 must be interpreted as precluding national legislation, in accordance with which, in order to determine the remuneration seniority of a contractual public servant, previous service periods completed in an employment relationship with a local authority or municipal association of a Member State of the European Economic Area, the Republic of Turkey or the Swiss Confederation, or with an organisation of the European Union or an intergovernmental organisation of which Austria is a member, or with any similar body, must be accredited in their entirety, whereas all other previous service periods are taken into account only up to a maximum of 10 years and in so far as they are relevant.68In that regard, it should be noted that Article 45(2) TFEU provides that freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.69The Court has held that Article 7(1) of Regulation No 492/2011 constitutes merely the specific expression of the principle of non-discrimination laid down in Article 45(2) TFEU within the specific field of conditions of employment and work and must therefore be interpreted in the same way as the latter article (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 23).70In that context, it should be noted that the principle of equal treatment laid down in both Article 45 TFEU and in Article 7 of Regulation No 492/2011 prohibits not only direct discrimination on the ground of nationality but also all indirect forms of discrimination that, by the application of other criteria of differentiation, lead in fact to the same result (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 35).71Therefore, a provision of national law — even if it applies regardless of nationality — must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the migrant worker at a particular disadvantage, unless objectively justified and proportionate to the aim pursued (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 36).72In this case, first, it is clear that the legislation at issue in the main proceedings applies to contractual public servants without distinction on grounds of nationality.73Therefore, it does not appear that legislation such as that at issue in the main proceedings creates a difference in treatment directly based on nationality, for the purposes of Article 45 TFEU and Article 7 of Regulation No 492/2011.74Secondly, as the Advocate General stated in point 91 of his Opinion, the criterion on the basis of which the difference in treatment operates is whether the public servant concerned exercised the activities that he wishes to be taken into account, with employers listed in Paragraph 26(2) of the amended Law on contractual public servants or with those referred to in Paragraph 26(3) thereof, irrespective of the Member State in which he exercised them.75Such a criterion does not seem to be capable of affecting workers from other Member States more than Austrian workers.76However, it should be noted that, according to the Court’s case-law, provisions of national legislation that preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute obstacles to that freedom even if they apply without regard to the nationality of the workers concerned (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 30).77It should be added in that regard that all the provisions of the TFEU relating to freedom of movement for persons are intended, as are those of Regulation No 492/2011, to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures that might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in the territory of another Member State (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 32).78In the main proceedings, the amount of relevant earlier periods of activity completed with employers other than those listed in Paragraph 26(2) of the amended Law on contractual public servants that can be taken into account is limited to 10 years.79Therefore, persons who have professional experience of more than 10 years with those other employers will be dissuaded from applying for a position as an Austrian contractual public servant due to the fact that they would obtain a lower grading in the salary scale, since the relevant periods of activity that they completed with such employers will not be taken entirely into account during the calculation of their seniority in the remuneration scale.80A migrant worker who acquired relevant professional experience of more than 10 years with an employer other than those listed in Paragraph 26(2) of the amended Law on contractual public servants will be graded in the same remuneration scale as that in which a worker who acquired the same type of experience, but of a duration of less than or equal to 10 years, will be graded.81Moreover, a migrant worker who has professional experience of 10 years that can be taken into account for the purposes of Paragraph 26(3) of the amended Law on contractual public servants can be required to seek employment with the employers listed in Paragraph 26(2) of that law in order to acquire relevant professional experience allowing him not to lose the possibility of starting work as an Austrian contractual public servant.82It follows that, by excluding taking into account all of the relevant periods of activity completed by a migrant worker with an employer other than those listed in Paragraph 26(2) of the amended Law on contractual public servants, the national legislation at issue in the main proceedings is likely to dissuade migrant workers who have acquired or who are in the process of acquiring relevant professional experience with other employers, from exercising their right to free movement.83National legislation such as that at issue in the main proceedings is, consequently, likely to make the free movement for workers less attractive, in breach of Article 45 TFEU and Article 7(1) of Regulation No 492/2011.84A measure of that kind cannot be accepted unless it pursues one of the legitimate aims listed in the TFEU or is justified by overriding reasons in the public interest. Even so, application of that measure still has to be such as to ensure achievement of the objective in question and must not go beyond what is necessary for that purpose (see, to that effect, inter alia, judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 36).85In that regard, the Austrian Government notes that, firstly, the Court has already accepted that rewarding experience acquired in a particular field, which enables the worker to better perform the duties conferred on him, constitutes a legitimate aim of pay policy, since the employers can, as a result, take account solely of that acquired experience when determining remuneration. Secondly, the legislation at issue in the main proceedings aims to reward the loyalty of contractual public servants.86As regards the first ground put forward as justification by the Austrian Government, it should be noted that, according to the Court’s settled case-law, rewarding experience acquired in a particular field, which enables the worker to perform the tasks conferred on him, constitutes a legitimate objective of pay policy (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 39).87Such experience must be taken into consideration for the grading and the calculation of the remuneration of a contractual public servant in its entirety.88Therefore, a national measure, such as that at issue in the main proceedings, which takes into account in a limited manner relevant experience, cannot be regarded as aiming to reward entirely that experience and, consequently, is not capable of guaranteeing the achievement of that objective.89As regards the second ground put forward as justification by the Austrian Government, it should be noted that, even assuming that the legislation at issue in the main proceedings indeed pursues the objective of rewarding workers’ loyalty to their employers, if such an objective can constitute an overriding reason of public interest (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 38), it must be stated that, given the characteristics of that legislation, the obstacle that it entails is not such as to ensure achievement of that objective.90It should be noted that, given the large number of employers covered by Article 26(2) of the amended Law on contractual public servants, the new system of remuneration and advancement is intended to allow the greatest possible mobility within a group of legally distinct employers and not to reward the loyalty of an employee to a particular employer (see, by analogy, judgment of 30 November 2000, Österreichischer Gewerkschaftsbund, C‑195/98, EU:C:2000:655, paragraph 49).91In those circumstances, it must be considered that that temporal limitation is not justified by overriding reasons in the general interest such as those referred to in paragraphs 86 and 89 of the present judgment.92In the light of those considerations, the answer to the second question is that Article 45 TFEU and Article 7(1) of Regulation No 492/2011 must be interpreted as precluding national legislation, in accordance with which, in order to determine the remuneration seniority of a contractual public servant, previous service periods completed in an employment relationship with a local authority or municipal association of a Member State of the European Economic Area, the Republic of Turkey or the Swiss Confederation, or with an organisation of the European Union or an intergovernmental organisation of which Austria is a member, or with any similar body, must be accredited in their entirety, whereas all other previous service periods are taken into account only up to a maximum of 10 years and in so far as they are relevant. Costs 93Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: 1. Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in combination with Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, entering into force retroactively, that, for the purposes of putting an end to discrimination on grounds of age, provides for the transition of active contractual public servants to a new system of remuneration and advancement in the context of which the initial grading of those contractual public servants is calculated according to their last remuneration paid under the previous system. 2. In the event that national provisions cannot be interpreted in conformity with Directive 2000/78, the national court is required to provide, within the limits of its jurisdiction, the legal protection that individuals derive from that directive and to ensure the full effectiveness of that directive, disapplying, if need be, any incompatible provision of national legislation. EU law must be interpreted as meaning that, where discrimination, contrary to EU law, has been established, as long as measures reinstating equal treatment have not been adopted, the restoration of equal treatment, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old system of remuneration and advancement the same benefits as those enjoyed by the contractual public servants favoured by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale and, consequently, granting compensation to contractual public servants discriminated against that is equal to the difference between the amount of remuneration the contractual public servant should have received if he had not been treated in a discriminatory manner and the amount of remuneration he actually received. 3. Article 45 TFEU and Article 7(1) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as precluding national legislation, in accordance with which, in order to determine the remuneration seniority of a contractual public servant, previous service periods completed in an employment relationship with a local authority or municipal association of a Member State of the European Economic Area, the Republic of Turkey or the Swiss Confederation, or with an organisation of the European Union or an intergovernmental organisation of which Austria is a member, or with any similar body, must be accredited in their entirety, whereas all other previous service periods are taken into account only up to a maximum of 10 years and in so far as they are relevant. [Signatures]( *1 ) Language of the case: German. | 66237-36b2f55-4111 | EN |
The Greek legislation prohibiting a monk who has the status of lawyer in another Member State from registering at the bar, on account of the incompatibility between the status of monk and the profession of lawyer, is contrary to EU law | 7 May 2019 ( *1 )(Reference for a preliminary ruling — Directive 98/5/EC — Access to the profession of lawyer — Monk who has obtained the professional qualification of lawyer in a Member State other than the host Member State — Article 3(2) — Condition requiring registration with the competent authority of the host Member State — Certificate attesting to registration with the competent authority of the home Member State — Refusal to register — Rules of professional conduct — Incompatibility of the status of monk with practice of the profession of lawyer)In Case C‑431/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Symvoulio tis Epikrateias (Council of State, Greece), made by decision of 29 June 2017, received at the Court on 17 July 2017, in the proceedings Monachos Eirinaios, kata kosmon Antonios Giakoumakis tou Emmanouilv Dikigorikos Syllogos Athinon, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, T. von Danwitz, C. Toader, F. Biltgen, K. Jürimäe and C. Lycourgos, Presidents of Chambers, J. Malenovský, E. Levits, L. Bay Larsen (Rapporteur), M. Safjan, C. Vajda and S. Rodin, Judges,Advocate General: E. Sharpston,Registrar: L. Hewlett, Principal Administrator,having regard to the written procedure and further to the hearing on 18 September 2018,after considering the observations submitted on behalf of:–Monachos Eirinaios, kata kosmon Antonios Giakoumakis tou Emmanouil, by A. Charokopou, dikigoros,Dikigorikos Syllogos Athinon, by D. Vervesos and P. Nikolopoulos, dikigoroi,the Greek Government, by M. Tassopoulou, acting as Agent,the Netherlands Government, by M.K. Bulterman and M.L. Noort, acting as Agents,the European Commission, by H. Tserepa-Lacombe and H. Støvlbæk, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 19 December 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3(2) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36).2The request has been made in proceedings between Monachos Eirinaios, kata kosmon Antonios Giakoumakis tou Emmanouil (Monk Irenaeus, lay name Antonios Giakoumakis, son of Emmanouil; ‘Monachos Eirinaios’), and the Dikigorikos Syllogos Athinon (Athens Bar Association, Greece; ‘the DSA’) concerning that authority’s refusal to grant his application to be entered on the special register of the Athens Bar as a lawyer practising under his home-country professional title. Legal context EU law 3Recitals 2, 6 and 8 of Directive 98/5 are worded as follows:‘(2)… the objective of [Council] Directive 89/48/EEC [of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16)] is to ensure that a lawyer is integrated into the profession in the host Member State, and [that] Directive seeks neither to modify the rules regulating the profession in that State nor to remove such a lawyer from the ambit of those rules;…(6)… action is also justified at Community level because only a few Member States already permit in their territory the pursuit of activities of lawyers, otherwise than by way of provision of services, by lawyers from other Member States practising under their home-country professional titles; … however, in the Member States where this possibility exists, the practical details concerning, for example, the area of activity and the obligation to register with the competent authorities differ considerably; … such a diversity of situations leads to inequalities and distortions in competition between lawyers from the Member States and constitutes an obstacle to freedom of movement; … only a directive laying down the conditions governing practice of the profession, otherwise than by way of provision of services, by lawyers practising under their home-country professional titles is capable of resolving these difficulties and of affording the same opportunities to lawyers and consumers of legal services in all Member States;(8)… lawyers covered by the Directive should be required to register with the competent authority in the host Member State in order that that authority may ensure that they comply with the rules of professional conduct in force in that State; ...’4Article 1(1) and (2) of Directive 98/5 provides:‘1. The purpose of this Directive is to facilitate practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained.2. For the purposes of this Directive:(b)“home Member State” means the Member State in which a lawyer acquired the right to use one of the professional titles referred to in (a) before practising the profession of lawyer in another Member State;(c)“host Member State” means the Member State in which a lawyer practises pursuant to this Directive;(d)“home-country professional title” means the professional title used in the Member State in which a lawyer acquired the right to use that title before practising the profession of lawyer in the host Member State;…’5As set out in the first paragraph of Article 2 of Directive 98/5:‘Any lawyer shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title, the activities specified in Article 5.’6Article 3 of Directive 98/5, headed ‘Registration with the competent authority’, provides in paragraphs 1 and 2:‘1. A lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification shall register with the competent authority in that State.2. The competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his registration with the competent authority in the home Member State. ...’7Article 6 of Directive 98/5, headed ‘Rules of professional conduct applicable’, provides in paragraph 1:‘Irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host Member State in respect of all the activities he pursues in its territory.’ Greek law 8The Hellenic Republic transposed Directive 98/5 into domestic law by Proedriko Diatagma 152/2000, Diefkolynsi tis monimis askisis tou dikigorikou epangelmatos stin Ellada apo dikigorous pou apektisan ton epangelmatiko tous titlo se allo kratos-melos tis EE (Presidential Decree 152/2000 facilitating practice of the profession of lawyer on a permanent basis in Greece by lawyers who obtained their professional qualification in another Member State of the European Union) of 23 May 2000 (FEK A’ 130).9Article 5(1) and (2) of that presidential decree provides:‘1. In order to practise the profession in Greece, the lawyer must be entered on the register of the bar association in whose area he will pursue his activities and must retain an office in that area.2. The board of administration of the aforesaid bar association shall decide upon that registration after the person concerned has submitted the following certificates:a certificate of registration from the competent authority of the home Member State which granted the professional qualification or another competent authority of the home State. …’10Article 6 of the Kodikas dikigoron (Lawyers’ Code; Law 4194/2013, FEK A’ 208), headed ‘Conditions to become a lawyer — Impediments’, provides in paragraph 6:‘The lawyer must … not have the status of … monk.’11It is clear from Article 7(1)(a) and (c) of the Lawyers’ Code that a person who is a clergyman or a monk or who is appointed to or holds any paid post under a contract entailing a relationship as an employee or a public official in the service of any legal person governed by private or public law is to lose ipso jure the status of lawyer and to be removed from the register of the bar association of which he is a member. The dispute in the main proceedings and the question referred for a preliminary ruling 12Monachos Eirinaios, the applicant in the main proceedings, is a monk at the Holy Monastery of Petra, in Karditsa (Greece).13By application of 12 June 2015, Monachos Eirinaios requested the DSA to enter him on the special register of the Athens Bar as a lawyer having acquired that professional status in another Member State, namely in Cyprus.14On 18 June 2015, the DSA rejected that application on the basis of the national provisions relating to the incompatibility between practice of the profession of lawyer and the status of monk, taking the view that those provisions also apply to lawyers wishing to practise in Greece under their home-country professional title.15On 29 September 2015, Monachos Eirinaios challenged that decision before the Symvoulio tis Epikrateias (Council of State, Greece).16In support of his action he pleads in particular that the national legislation is inconsistent with Directive 98/5, on the ground that that legislation imposes a condition not provided for by the directive. In his submission, the directive fully harmonises the rules relating to the conditions for registration, with the competent authority of the host Member State, of lawyers who have obtained their professional qualification in another Member State.17The DSA contends, in essence, that the national legislation under which monks cannot be lawyers is justified by fundamental rules and principles governing practice of the profession of lawyer in the host Member State.18That authority takes the view that the status of monk does not allow a monk to provide, in accordance with those rules and principles, guarantees such as, in particular, independence vis-à-vis the ecclesiastical authorities to which he is subject, the ability to devote himself entirely to practice of the profession of lawyer, the ability to handle contentious cases, actual establishment in the area of the court of first instance concerned and observance of the prohibition on providing services without remuneration.19The Symvoulio tis Epikrateias (Council of State) is uncertain as to the interpretation of Article 3 of Directive 98/5. In the light of the requirements arising from the national rules of professional conduct to which lawyers are subject in the host Member State — rules which do not permit a monk to practise as a lawyer — the referring court is unsure whether the competent national authority of that Member State is, nonetheless, required to register a monk with a view to him practising as a lawyer under the professional title obtained in the home Member State.20According to the referring court, that question arises all the more acutely since the competent authority of the host Member State would automatically have to find an infringement of those rules of professional conduct by the person concerned, pursuant to the national provision which establishes that the status of monk does not allow the requirements and guarantees necessary for practice of the profession of lawyer in Greece to be satisfied.21In those circumstances, the Symvoulio tis Epikrateias (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Is Article 3 of Directive [98/5] to be interpreted as meaning that the registration of a monk of the Church of Greece as a lawyer with the competent authority of a Member State other than that in which he obtained his professional qualification, in order for him to practise there under his home-country professional title, may be prohibited by the national legislature on the ground that monks of the Church of Greece cannot, under national law, be entered in the registers of bar associations since, on account of their status as persons under monastic discipline, they do not provide certain guarantees necessary for practice as a lawyer?’ Consideration of the question referred 22By its question, the referring court asks, in essence, whether Article 3(2) of Directive 98/5 must be interpreted as precluding national legislation which, on account of the incompatibility under that legislation between the status of monk and practice of the profession of lawyer, prohibits a lawyer who has the status of monk, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practise there under his home-country professional title.23It should be noted at the outset that, by virtue of Article 1(1) of Directive 98/5, the purpose of that directive is to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the professional qualification was obtained.24In that regard, the Court has already had occasion to hold that Directive 98/5 establishes a mechanism for the mutual recognition of the professional titles of lawyers who migrate and wish to practise under the professional title obtained in the home Member State (judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 36 and the case-law cited).25Furthermore, as is clear from recital 6 of Directive 98/5, by that directive the EU legislature sought, inter alia, to put an end to the differences in national rules on the conditions for registration with the competent authorities, which gave rise to inequalities and obstacles to freedom of movement (judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 37 and the case-law cited).26In that context, Article 3 of Directive 98/5 harmonises fully the preconditions for exercise of the right of establishment conferred by that directive, laying down that a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification is obliged to register with the competent authority of that Member State, which must effect that registration ‘upon presentation of a certificate attesting to his registration with the competent authority of the home Member State’ (judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 38 and the case-law cited).27In that regard, the Court has already held that the presentation to the competent authority of the host Member State of a certificate attesting to registration with the competent authority of the home Member State is the only condition to which registration of the person concerned in the host Member State, enabling him to practise there under his home-country professional title, may be subject (judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 39 and the case-law cited).28Accordingly, it must be held that lawyers who have acquired the right to use that professional title in a Member State, such as the applicant in the main proceedings, and who present to the competent authority of the host Member State a certificate attesting to their registration with the competent authority of the first Member State must be regarded as satisfying all the conditions required for their registration with the competent authority of the host Member State, under their professional title obtained in the home Member State.29That conclusion is not called into question by the fact that under Article 6(1) of Directive 98/5 a lawyer practising in the host Member State under his home-country professional title is, irrespective of the rules of professional conduct to which he is subject in his home Member State, subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host Member State in respect of all the activities pursued in its territory.30A distinction should be drawn between, on the one hand, registration with the competent authority of the host Member State of a lawyer who wishes to practise in that Member State under his home-country professional title, a process which, in accordance with Article 3(2) of the directive, is subject solely to the condition referred to in paragraphs 26 to 28 above, and, on the other, the practice itself of the profession of lawyer in that Member State, in respect of which that lawyer is subject, by virtue of Article 6(1) of the directive, to the rules of professional conduct applicable in that Member State.31Those rules, unlike the rules concerning the preconditions for such registration, have not been harmonised and may therefore differ considerably from those in force in the home Member State. Moreover, as Article 7(1) of Directive 98/5 confirms, failure to comply with those rules is liable to lead to application of the penalties provided for in the law of the host Member State. Those penalties may, where appropriate, include removal from the register of the relevant bar in that Member State (see, to that effect, judgment of 2 December 2010, Jakubowska, C‑225/09, EU:C:2010:729, paragraph 57).32In the present instance, it is apparent from the information provided by the referring court that, according to the competent authority of the host Member State, practice of the profession of lawyer by a monk would not be consistent with the guarantees, such as those referred to in paragraph 18 above, which, under the law of that Member State, are required for practice of that profession.33In that regard, it should be pointed out that it is permissible for the national legislature to prescribe such guarantees provided that the rules laid down for that purpose do not go beyond what is necessary in order to attain the objectives pursued. In particular, the absence of conflicts of interest is essential for practice of the profession of lawyer and requires, inter alia, that lawyers should be in a situation of independence vis-à-vis the authorities, by which they must never be influenced.34This power available to the national legislature nevertheless does not allow it to supplement the preconditions for registration with the competent authority of the host Member State — which, as noted in paragraph 26 above, have been fully harmonised — by adding further conditions that relate to compliance with requirements of professional conduct. If a lawyer wishing to practise in the host Member State under his home-country professional title were refused registration with the competent authorities of that Member State solely on the ground that he has the status of monk, that would effectively add a registration condition to those set out in Article 3(2) of Directive 98/5, whereas such addition is not permitted by that provision.35Furthermore, as has been pointed out in paragraph 33 above, in order for the rules of professional conduct applicable in the host Member State to be in compliance with EU law, they must in particular comply with the principle of proportionality, which means that they are not to go beyond what is necessary in order to attain the objectives pursued. It is for the referring court to carry out the necessary checks in respect of the rule regarding incompatibility at issue in the main proceedings.36In the light of all the foregoing considerations, the answer to the question referred is that Article 3(2) of Directive 98/5 must be interpreted as precluding national legislation which, on account of the incompatibility under that legislation between the status of monk and practice of the profession of lawyer, prohibits a lawyer who has the status of monk, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practise there under his home-country professional title. Costs 37Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 3(2) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained must be interpreted as precluding national legislation which, on account of the incompatibility under that legislation between the status of monk and practice of the profession of lawyer, prohibits a lawyer who has the status of monk, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practise there under his home-country professional title. [Signatures]( *1 ) Language of the case: Greek. | 861f3-ae97732-42ea | EN |
The use of figurative signs evoking the geographical area with which a protected designation of origin (PDO) is associated may constitute an unlawful evocation of that designation | 2 May 2019 ( *1 )(Reference for a preliminary ruling — Agriculture — Regulation (EC) No 510/2006 — Article 13(1)(b) — Protection of geographical indications and designations of origin for agricultural products and foodstuffs — Manchego cheese (‘queso manchego’) — Use of signs capable of evoking the region with which a protected designation of origin (PDO) is associated — Concept of the ‘average consumer who is reasonably well informed and reasonably observant and circumspect’ — European consumers or consumers of the Member State in which the product covered by the PDO is made and mainly consumed)In Case C‑614/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 19 October 2017, received at the Court on 24 October 2017, in the proceedings Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego v Industrial Quesera Cuquerella SL, Juan Ramón Cuquerella Montagud, THE COURT (Fourth Chamber),composed of M. Vilaras, President of the Chamber, K. Jürimäe, D. Šváby, S. Rodin (Rapporteur) and N. Piçarra, Judges,Advocate General: G. Pitruzella,Registrar: R. Schiano, Administrator,having regard to the written procedure and further to the hearing on 25 October 2018,after considering the observations submitted on behalf of:–the Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego, by M. Pomares Caballero, abogado,Industrial Quesera Cuquerella SL and M. Cuquerella Montagud, by J.A. Vallejo Fernández, F. Pérez Álvarez and J. Pérez Itarte, abogados,the Spanish Government, by A. Rubio González and V. Ester Casas, acting as Agents,the German Government, by T. Henze, M. Hellmann and J. Techert, acting as Agents,the French Government, by D. Colas, S. Horrenberger, A.-L. Desjonquères and C. Mosser, acting as Agents,the European Commission, by I. Galindo Martín, D. Bianchi and I. Naglis, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 10 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 13(1)(b) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).2The request has been made in proceedings between, on the one hand, the Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego (Foundation responsible for managing the Protected Designation of Origin Queso Manchego, Spain) (‘the Queso Manchego Foundation’) and, on the other hand, Industrial Quesera Cuquerella SL (‘IQC’) and Mr Juan Ramón Cuquerella Montagud concerning, inter alia, the use by IQC of labels to identify and market cheeses which are not covered by the protected designation of origin (PDO) ‘queso manchego’. Legal context 3Recitals 4 and 6 of Regulation No 510/2006 state:‘(4)In view of the wide variety of products marketed and the abundance of product information provided, the consumer should, in order to be able to make the best choices, be given clear and succinct information regarding the product origin.…(6)Provision should be made for a Community approach to designations of origin and geographical indications. A framework of Community rules on a system of protection permits the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework ensures fair competition between the producers of products bearing such indications and enhances the credibility of the products in the consumer’s eyes.’4Article 2(1)(a) of that regulation states:‘For the purposes of this Regulation:(a)“designation of origin” means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:originating in that region, specific place or country,the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, andthe production, processing and preparation of which take place in the defined geographical area’.5Article 13(1) of Regulation No 510/2006 provides:‘Registered names shall be protected against:(b)any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation” or similar;(c)any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;…’6Article 14(1) of that regulation provides:‘Where a designation of origin or a geographical indication is registered under this Regulation, the application for registration of a trademark corresponding to one of the situations referred to in Article 13 and relating to the same class of product shall be refused if the application for registration of the trademark is submitted after the date of submission of the registration application to the [European] Commission.Trademarks registered in breach of the first subparagraph shall be invalidated.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 7The Queso Manchego Foundation is responsible for managing and protecting the PDO ‘queso manchego’. On that basis, it brought an action against the defendants in the main proceedings before the Spanish court of first instance with jurisdiction to hear the case seeking a declaration that the labels used by IQC to identify and market the cheeses ‘Adarga de Oro’, ‘Super Rocinante’ and ‘Rocinante’, which are not covered by the PDO ‘queso manchego’, and the use of the words ‘Quesos Rocinante’ infringe the PDO ‘queso manchego’ because those labels and those words constitute an unlawful evocation of that PDO for the purpose of Article 13(1)(b) of Regulation No 510/2006.8The Spanish court of first instance dismissed that action on the ground that the signs and names used by IQC to market the cheeses which were not covered by the PDO ‘queso manchego’ were not visually or phonetically similar to the PDOs ‘queso manchego’ or ‘La Mancha’ and that the use of signs such as the name ‘Rocinante’ or the image of the literary character Don Quixote de La Mancha evoke the region of La Mancha (Spain) and not the cheese covered by the PDO ‘queso manchego’.9The Queso Manchego Foundation brought an appeal against that decision before the Audiencia Provincial de Albacete (Provincial Court, Albacete, Spain), which, by judgment of 28 October 2014, upheld the judgment at first instance. That court held that, for cheeses marketed by IQC which are not covered by the PDO ‘queso manchego’, the use of landscape and images typical of La Mancha on the labels of those cheeses leads consumers to think of the region of La Mancha but not necessarily of the cheese covered by the PDO ‘queso manchego’.10The applicant in the main proceedings brought an appeal against that judgment before the Tribunal Supremo (Supreme Court, Spain).11In its order for reference, the Tribunal Supremo (Supreme Court) sets out a number of factual considerations.12First of all, the referring court states that the word ‘manchego’ used in the PDO ‘queso manchego’ is the adjective which describes, in Spanish, the people and the products originating in the region of La Mancha. Next, it observes that the PDO ‘queso manchego’ covers cheeses made in the region of La Mancha from sheep’s milk in accordance with the traditional production, preparation and ageing requirements set out in the product specification of that PDO.13Moreover, the referring court states that Miguel de Cervantes set most of the story relating to the fictional character Don Quixote de La Mancha in the region of La Mancha. Don Quixote is also described by the referring court as having certain physical features and clothing similar to those of the character depicted on the figurative design on the label of the cheese ‘Adarga de Oro’. In that regard, the archaic word ‘adarga’ (small leather shield) is used in [Cervantes’] novel to describe the shield used by Don Quixote. In addition, the referring court notes that one of the names used by IQC for some of its cheeses is the name of the horse ridden by Don Quixote de La Mancha, namely ‘Rocinante’. The windmills which Don Quixote fights are a typical feature of the landscape of La Mancha. Landscapes featuring windmills and sheep appear on some of the labels used for the cheeses produced by IQC which are not covered by the PDO ‘queso manchego’ and in some of the illustrations on IQC’s website, which also advertises cheeses not covered by the PDO.14In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Must the evocation of a [PDO], prohibited by Article 13(1)(b) of Regulation No 510/2006 necessarily be brought about by the use of a name visually, phonetically or conceptually similar to the [PDO] or may it be brought about by the use of figurative signs evoking the [PDO]?(2)When the [PDO] is of a geographical nature (Article 2(1)(a) of Regulation No 510/2006) and when the products are the same or comparable, can the use of signs evoking the region with which a [PDO] is associated constitute evocation of the [PDO] itself, within the meaning of Article 13(1)(b) of Regulation No 510/2006, which is prohibited even when the user of those signs is a producer established in the region associated with the [PDO], but whose products are not protected by [that PDO] because they do not meet the requirements set out in the product specification, apart from the geographical provenance?(3)Must the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is “evocation” within the meaning of Article 13(1)(b) of Regulation No 510/2006, be understood to cover European consumers or can it cover only consumers of the Member State in which the product giving rise to evocation of the protected geographical indication is produced or with which the PDO is geographically associated and in which the product is mainly consumed?’ Consideration of the questions referred The first question 15By its first question, the referring court asks, in essence, whether Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that a registered name may be evoked through the use of figurative signs.16The Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 May 2018, Industrias Químicas del Vallés, C‑325/16, EU:C:2018:326, paragraph 27, and of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraph 27).17In the first place, it is apparent from the wording of Article 13(1)(b) of Regulation No 510/2006 that registered names must be protected against any evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’ or similar.18That wording can be understood as referring not only to words capable of evoking a registered name, but also to any figurative sign capable of evoking in the mind of the consumer products whose designation is protected. In that regard, the use of the word ‘any’ reflects the EU legislature’s intention to protect registered names as it took the view that evocation is possible through the use of a word element or a figurative sign.19It is true that the Court has held that the concept of ‘evocation’ covers a situation where the term used to designate a product incorporates part of a registered name, so that when the consumer is confronted with the name of the product, the image triggered in his mind is that of the product whose name is protected (see, by analogy, judgment of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 25).20The Court has also stated that, for the purposes of determining what is meant by the term ‘evocation’, within the meaning of Article 16(b) of Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 (OJ 2008 L 39, p. 16), the decisive criterion is whether, when the consumer is confronted with a disputed designation, the image triggered directly in his mind is that of the product whose geographical indication is protected (judgment of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraph 51).21Although the case-law cited in paragraphs 19 and 20 above concerned cases relating to product names and not figurative signs, it may nevertheless be inferred, as the Advocate General noted in point 24 of his Opinion, that the decisive criterion for establishing whether an element evokes a registered name, within the meaning of Article 13(1)(b) of Regulation No 510/2006, is whether that element is capable of triggering directly in the consumer’s mind the image of the product whose designation is protected.22Therefore, it cannot be excluded, in principle, that figurative signs may trigger directly in the consumer’s mind the image of products whose name is registered on account of their ‘conceptual proximity’ to such a name.23In the second place, as regards the context in which the term ‘evocation’ occurs, it cannot be accepted, as the Commission maintains, that the evocation of a registered name through the use of figurative signs can be examined only in the light of Article 13(1)(c) of Regulation No 510/2006.24First, it should be noted that the wording itself of Article 13(1)(b) of that regulation does not limit the scope of that provision solely to the names of the products covered by those names. On the contrary, as the Advocate General noted in point 28 of his Opinion, that provision requires protection against ‘any’ evocation, even if the protected name is accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’ or ‘imitation’, on the packaging of the product concerned.25Second, as the Commission pointed out, it is true that the Court held, in the judgment of 7 June 2018, Scotch Whisky Association (C‑44/17, EU:C:2018:415, paragraph 65), that Article 16 of Regulation No 110/2008, which is worded in similar terms to Article 13 of Regulation No 510/2006, sets out a graduated list of prohibited conduct.26Nevertheless, it cannot be inferred from the fact that Article 13(1)(c) of Regulation No 510/2006 refers to any other indication on the inner or outer packaging, advertising material or documents relating to the product concerned that only that provision precludes the use of figurative signs that infringe registered names.27As the Advocate General stated in point 33 of his Opinion, the graduated list referred to by the Court relates to the nature of the prohibited conduct, namely, as regards Article 13(1)(c) of that regulation, to false and misleading indications as to the provenance, origin, nature or essential qualities of the product and not to the factors to be taken into consideration when determining whether there are such false or misleading indications.28Therefore, a contextual interpretation of Article 13(1)(b) of Regulation No 510/2006 confirms the interpretation based on the wording of that provision set out in paragraph 22 above.29In the third place, it should be noted that Regulation No 510/2006 pursues, inter alia, the objective of ensuring, in accordance with recitals 4 and 6 of that regulation, that the consumer has clear, succinct and credible information regarding the origin of the product.30Such an objective is further guaranteed if the registered name cannot be evoked, within the meaning of Article 13(1)(b) of that regulation, through the use of figurative signs.31Finally, it is important to note that it is for the referring court to assess specifically whether figurative signs, such as those at issue in the main proceedings, are capable of triggering directly in the consumer’s mind the products whose names are registered.32Consequently, the answer to the first question is that Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that a registered name may be evoked through the use of figurative signs. The second question 33By its second question, the referring court asks, in essence, whether Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that the use of figurative signs evoking the geographical area with which a designation of origin, as referred to in Article 2(1)(a) of that regulation, is associated may constitute evocation of that designation, including where such figurative signs are used by a producer established in that region, but whose products, similar or comparable to those protected by that designation of origin, are not covered by it.34It must be observed at the outset that the wording of Article 13(1)(b) of Regulation No 510/2006 does not provide that a producer established in a geographical area corresponding to the PDO and whose products are not protected by the PDO but are similar or comparable to those protected by it is to be excluded from that provision.35Alternatively, if such a producer were excluded, such an exclusion would have the effect of authorising a producer to use figurative signs which evoke the geographical area whose name is part of a designation of origin covering an identical or similar product to that of that producer and, accordingly, of allowing him to take unfair advantage of the reputation of that designation.36Consequently, in a situation such as that at issue in the main proceedings, the fact that a producer of similar or comparable products to those protected by a designation of origin is established in a geographical area associated with that designation cannot exclude that producer from the scope of Article 13(1)(b) of Regulation No 510/2006.37Next, although it is for the national courts to ascertain whether the use by a producer of figurative signs which evoke the geographical area whose name is part of a designation of origin for identical or similar products to those covered by that designation amounts to evocation of a registered name, within the meaning of Article 13(1)(b) of that regulation, the Court, when giving a preliminary ruling on a reference, may, in appropriate cases, give clarifications to guide the national court in its decision (see, to that effect, judgment of 10 September 2009, Severi, C‑446/07, EU:C:2009:530, paragraph 60).38In doing so, the national court must essentially rely on the presumed reaction of consumers, it being essential that the latter establish a link between the disputed elements, namely, in the present case figurative signs evoking the geographical area whose name is part of a designation of origin and the registered name (see, to that effect, judgment of 21 January 2016, Viiniverla, C‑75/15, EU:C:2016:35, paragraph 22).39In that regard, it is for the national court to assess whether the link between those disputed elements and the registered name is sufficiently clear and direct that that name is especially brought to the mind of the consumer in their presence (see, to that effect, judgment of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraphs 53 and 54).40Accordingly, it is for the referring court to establish whether there is sufficiently clear and direct conceptual proximity between the figurative signs at issue in the main proceedings and the PDO ‘queso manchego’, which, in accordance with Article 2(1)(a) of Regulation No 510/2006, refers to the geographical area with which it is associated, namely the region of La Mancha.41In the present case, the referring court must ensure that the figurative signs at issue in the main proceedings, in particular the illustrations of a character resembling Don Quixote de La Mancha, a bony horse and landscapes with windmills and sheep, are capable of creating conceptual proximity with the PDO ‘queso manchego’ so that the image triggered directly in the consumer’s mind is that of the product protected by that PDO.42In that regard, the referring court must assess whether it is necessary, as stated by the Advocate General in point 41 of his Opinion, to consider together all the figurative and word signs which appear on the products at issue in the main proceedings in order to carry out an overall assessment taking account of all the elements which are potentially evocative.43In the light of the foregoing, Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that the use of figurative signs evoking the geographical area with which a designation of origin, as referred to in Article 2(1)(a) of that regulation, is associated may constitute evocation of that designation, including where such figurative signs are used by a producer established in that region, but whose products, similar or comparable to those protected by the designation of origin, are not covered by it. The third question 44By its third question, the referring court asks, in essence, whether the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is ‘evocation’ within the meaning of Article 13(1)(b) of Regulation No 510/2006, must be understood as covering European consumers or only consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed.45First of all, as regards the interpretation of Article 16(b) of Regulation No 110/2008, worded in similar terms to Article 13(1)(b) of Regulation No 510/2006, the Court held that for the purpose of establishing whether there is an ‘evocation’ of a registered geographical indication, the referring court is required to determine whether, when the average European consumer who is reasonably well informed and reasonably observant and circumspect is confronted with the disputed designation, the image triggered directly in his mind is that of the product whose geographical indication is protected (see, to that effect, judgment of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraph 56).46The Court has also made clear that the fact that the disputed designation in the case that gave rise to the judgment cited in the preceding paragraph refers to a place of production that is known to consumers in the Member State where the product is made is not relevant for the purpose of assessing the concept of ‘evocation’ within the meaning of Article 16(b) of Regulation No 110/2008, since that provision protects registered geographical indications against any evocation throughout the territory of the European Union and, in view of the need to guarantee effective and uniform protection of those indications in that territory, it covers all European consumers (see, by analogy, judgments of 21 January 2016, Viiniverla, C‑75/15, EU:C:2016:35, paragraphs 27 and 28, and of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraph 59).47It follows from the foregoing that the concept of the average European consumer who is reasonably well informed and reasonably observant and circumspect must be interpreted in a way that guarantees effective and uniform protection of registered names against any evocation throughout the territory of the Union.48Thus, as the Advocate General observed in point 51 of his Opinion, while the effective and uniform protection of registered names means that circumstances which may lead to the conclusion that there is no ‘evocation’ only in respect of the consumers of one Member State must be disregarded, that does not mean, on the other hand, that evocation assessed by reference to the consumers of a single Member State is not sufficient to trigger the protection provided in Article 13(1)(b) of Regulation No 510/2006.49Therefore, it is for the referring court to assess whether both the figurative and word elements relating to the product at issue in the main proceedings, which is made or mainly consumed in Spain, evoke the image of a registered name in the mind of the consumers of that Member State, which must, if that is the case, be protected against evocation wherever that may occur throughout the territory of the European Union.50It follows that the answer to the third question is that the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is ‘evocation’ within the meaning of Article 13(1)(b) of Regulation No 510/2006, must be understood as covering European consumers, including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed. Costs 51Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fourth Chamber) hereby rules: 1. Article 13(1)(b) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs must be interpreted as meaning that a registered name may be evoked through the use of figurative signs. 2. Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that the use of figurative signs evoking the geographical area with which a designation of origin, as referred to in Article 2(1)(a) of that regulation, is associated may constitute evocation of that designation, including where such figurative signs are used by a producer established in that region, but whose products, similar or comparable to those protected by the designation of origin, are not covered by it. 3. The concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is ‘evocation’ within the meaning of Article 13(1)(b) of Regulation No 510/2006, must be understood as covering European consumers, including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed. [Signatures]( *1 ) Language of the case: Spanish. | 4616c-0d99475-4f35 | EN |
Advocate General Szpunar: Deutsche Bahn cannot require customers wishing to purchase travel tickets online by direct debit to be resident in Germany | 5 September 2019 ( *1 )(Reference for a preliminary ruling — Technical and business requirements for credit transfers and direct debits in euro — Regulation (EU) No 260/2012 — Single euro payments area (SEPA) — Payment by direct debit — Article 9(2) — Accessibility of payments — Residence condition)In Case C‑28/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 20 December 2017, received at the Court on 17 January 2018, in the proceedings Verein für Konsumenteninformation v Deutsche Bahn AG, THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, C. Lycourgos, E. Juhász, M. Ilešič and I. Jarukaitis, Judges,Advocate General: M. Szpunar,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 30 January 2019,after considering the observations submitted on behalf of:–the Verein für Konsumenteninformation, by S. Langer, Rechtsanwalt,Deutsche Bahn AG, by C. Pöchhacker and L. Riede, Rechtsanwälte,the European Commission, by H. Tserepa-Lacombe and T. Scharf, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 2 May 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 9(2) of Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 (OJ 2012 L 94, p. 22).2The request has been made in proceedings between the Verein für Konsumenteninformation (Consumer Information Association; ‘the VKI’) and Deutsche Bahn AG concerning the fact that it is not possible for passengers who are not resident in Germany to pay for tickets booked on the company’s website by means of direct debit in euros under the EU-wide direct debit scheme (‘SEPA direct debit’). Legal context 3Recitals 1, 6, 9, 10 and 32 of Regulation No 260/2012 are worded as follows:‘(1)The creation of an integrated market for electronic payments in euro, with no distinction between national and cross-border payments is necessary for the proper functioning of the internal market. To that end, the single euro payments area (SEPA) project aims to develop common Union-wide payment services to replace current national payment services. As a result of the introduction of open, common payment standards, rules and practices, and through integrated payment processing, SEPA should provide Union citizens and businesses with secure, competitively priced, user-friendly, and reliable payment services in euro. This should apply to SEPA payments within and across national boundaries under the same basic conditions and in accordance with the same rights and obligations, regardless of location within the Union. ……(6)Only rapid and comprehensive migration to Union-wide credit transfers and direct debits will generate the full benefits of an integrated payments market, so that the high costs of running both “legacy” and SEPA products in parallel can be eliminated. Rules should therefore be laid down to cover the execution of all credit transfer and direct debit transactions denominated in euro within the Union. …(9)For a credit transfer to be executed, the payee’s payment account must be reachable. Therefore, in order to encourage the successful take-up of Union-wide credit transfer and direct debit services, a reachability obligation should be established across the Union. To improve transparency, it is furthermore appropriate to consolidate that obligation and the reachability obligation for direct debits already established under Regulation (EC) No 924/2009 [of the European Parliament and of the Council of 16 September 2009 on cross-border payments in the Community and repealing Regulation (EC) No 2560/2001 (OJ 2009 L 266, p. 11)] in a single act. All payee payment accounts reachable for a national credit transfer should also be reachable via a Union-wide credit transfer scheme. All payers’ payment accounts reachable for a national direct debit should also be reachable via a Union-wide direct debit scheme. This should apply whether or not a [payment service provider (PSP)] decides to participate in a particular credit transfer or direct debit scheme.(10)Technical interoperability is a prerequisite for competition. In order to create an integrated market for electronic payments systems in euro, it is essential that the processing of credit transfers and direct debits is not hindered by business rules or technical obstacles such as compulsory adherence to more than one system for settling cross-border payments. Credit transfers and direct debits should be carried out under a scheme, the basic rules of which are adhered to by PSPs representing a majority of PSPs within a majority of the Member States and constituting a majority of PSPs within the Union, and which are the same both for cross-border and for purely national credit transfer and direct debit transactions. …(32)In order to ensure broad public support for SEPA, a high level of protection for payers is essential, particularly for direct debit transactions. The current and only pan-European direct debit scheme for consumers developed by the [European Payments Council (EPC)] provides for a “no-questions-asked”, unconditional refund right for authorised payments during a period of 8 weeks from the date on which the funds were debited, while that refund right is subject to several conditions under Articles 62 and 63 of Directive 2007/64/EC [of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1)]. In the light of the prevailing market situation and of the necessity to ensure a high level of consumer protection, the impact of those provisions should be assessed in the report that, in accordance with Article 87 of Directive 2007/64/EC, the Commission shall, no later than 1 November 2012, present to the European Parliament, the Council, the European Economic and Social Committee and the [European Central Bank] accompanied, where appropriate, by a proposal for its revision.’4Article 1 of Regulation No 260/2012, entitled ‘Subject matter and scope’, provides in paragraph 1:‘This Regulation lays down rules for credit transfer and direct debit transactions denominated in euro within the Union where both the payer’s payment service provider and the payee’s payment service provider are located in the Union, or where the sole payment service provider (PSP) involved in the payment transaction is located in the Union.’5Article 2 of that regulation, entitled ‘Definitions’, provides:‘For the purposes of this Regulation, the following definitions shall apply:(2)“direct debit” means a national or cross-border payment service for debiting a payer’s payment account, where a payment transaction is initiated by the payee on the basis of the payer’s consent;(3)“payer” means a natural or legal person who holds a payment account and allows a payment order from that payment account or, where there is no payer’s payment account, a natural or legal person who makes a payment order to a payee’s payment account;(4)“payee” means a natural or legal person who holds a payment account and who is the intended recipient of funds which have been the subject of a payment transaction;(5)“payment account” means an account held in the name of one or more payment service users which is used for the execution of payment transactions;(21)“mandate” means the expression of consent and authorisation given by the payer to the payee and (directly or indirectly via the payee) to the payer’s PSP to allow the payee to initiate a collection for debiting the payer’s specified payment account and to allow the payer’s PSP to comply with such instructions;(26)“cross-border payment transaction” means a payment transaction initiated by a payer or by a payee where the payer’s PSP and the payee’s PSP are located in different Member States;(27)“national payment transaction” means a payment transaction initiated by a payer or by a payee, where the payer’s PSP and the payee’s PSP are located in the same Member State;…’6Article 3 of that regulation, entitled ‘Reachability’, provides in paragraph 2:‘A payer’s PSP which is reachable for a national direct debit under a payment scheme shall be reachable, in accordance with the rules of a Union-wide payment scheme, for direct debits initiated by a payee through a PSP located in any Member State.’7Article 9 of the regulation, entitled ‘Payment accessibility’, states in paragraph 2:‘A payee accepting a credit transfer or using a direct debit to collect funds from a payer holding a payment account located within the Union shall not specify the Member State in which that payment account is to be located, provided that the payment account is reachable in accordance with Article 3.’ The dispute in the main proceedings and the question referred for a preliminary ruling 8In accordance with Austrian legislation, the VKI has standing to bring an action for the protection of consumers.9Deutsche Bahn is a rail transport company with its registered office in Berlin (Germany). It offers consumers the possibility to book international train journeys on its website. For that purpose it concludes contracts with consumers on the basis of its general conditions of carriage.10According to one of the clauses in those general conditions of carriage, bookings made on Deutsche Bahn’s website may be paid for by credit card, via PayPal, by credit transfer or under the SEPA direct debit scheme. However, according to that clause, payment by SEPA direct debit is only accepted subject to the observance of several conditions, namely that the payer have a place of residence in Germany, that he consent to the direct debit being taken from an account held with a bank or savings bank that has its registered office in a SEPA-participating State, that he instruct the bank or savings bank to honour the SEPA direct debit and that he register on the Deutsche Bahn website. In addition, in order to activate the SEPA direct debit scheme, the payer must give his consent to undergo a credit check.11The VKI brought an action for a prohibitory order before the Handelsgericht Wien (Commercial Court, Vienna, Austria) by which it sought to have Deutsche Bahn ordered to cease using that clause in consumer contracts. In support of that action, the VKI claimed that the clause at issue in the main proceedings, according to which the payer must inter alia have a place of residence in Germany in order to make a payment by SEPA direct debit, is contrary to Article 9(2) of Regulation No 260/2012 since, first, a consumer’s payment account is generally located in the Member State of his residence and, secondly, that clause imposes an even weightier obligation than a condition requiring the payer to open a payment account in Germany.12Deutsche Bahn contends that since Regulation No 260/2012 is addressed to payment service providers, it aims to protect payments rather than payers. That regulation does not require payees to offer payment by SEPA direct debit to all consumers throughout the European Union. Moreover, other methods of payment are available to consumers for the purpose of purchasing tickets on its website. In any event, the condition regarding the consumer’s place of residence is justified. Indeed, in contrast to the situation in relation to other payment procedures, under the direct debit scheme the payee receives no payment guarantee from the payment service provider.13By judgment of 13 July 2016, the Handelsgericht Wien (Commercial Court, Vienna), allowed the VKI’s claim with regard to consumers residing in Austria, having held that the clause was contrary to Article 9(2) of Regulation No 260/2012.14By judgment of 14 March 2017, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), hearing the case on appeal, set aside that judgment and dismissed the VKI’s claim on the ground that, while Article 9(2) of Regulation No 260/2012 ensures that both payers and payees only require a single bank account for both domestic and cross-border payments by direct debit, the regulation does not oblige payees to accept, in all cases, specific payment instruments for the settlement of commercial transactions with consumers.15The Oberster Gerichtshof (Supreme Court, Austria), which is hearing the VKI’s appeal against that judgment, considers that, by prohibiting payers and payees from specifying in which Member State the other party’s account must be held, Article 9(2) of Regulation No 260/2012 does not apply to payment service providers but applies to the relationships between payees and payers and, accordingly, aims to protect payers. Whilst it is true that on a literal interpretation that provision only prohibits making the geographical location of the payment account a criterion, nevertheless, a clause, such as that at issue in the main proceedings, which precludes payment by SEPA direct debit when the payer is not resident in the same Member State as that in which the payee has established his place of business, could be contrary to that provision since a payer’s payment account is, as a general rule, located in the Member State in which the payer is resident.16In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Must Article 9(2) of Regulation [No 260/2012] be interpreted as meaning that the payee is prohibited from making payment under the SEPA direct debit scheme dependent on the payer’s place of residence being in the Member State in which the payee also has its registered office or residence, if payment in a different way, for example with a credit card, is also allowed?’ Consideration of the question referred 17By its question, the referring court asks, in essence, whether Article 9(2) of Regulation No 260/2012 must be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which excludes payment by SEPA direct debit where the payer’s place of residence is not in the same Member State as that in which the payee has established his place of business.18As a preliminary point, it must be borne in mind that, as is apparent from recital 1 of Regulation No 260/2012, that regulation was adopted in the context of the project to create SEPA, with the intention of developing, for payments in euros, common Union-wide payment services to replace national payment services.19According to Article 1, that regulation aims to lay down rules for credit transfer and direct debit transactions denominated in euros within the Union where both the payer’s payment service provider and the payee’s payment service provider are located in the Union, or where the sole payment service provider involved in the payment transaction is located in the Union.20As is apparent particularly from recitals 1 and 6 of that regulation, the technical and business requirements provided for by the regulation apply to national and cross-border payments made under SEPA according to the same basic conditions and in accordance with the same rights and obligations, regardless of location within the Union, in order to ensure a complete migration to Union-wide credit transfers and direct debits and thus to introduce an integrated market for electronic payments in euros in which there is no distinction between national and cross-border payments.21In that respect, Article 9(2) of Regulation No 260/2012 provides that a payee who uses a direct debit to collect funds from a payer holding a payment account located within the Union is not to ‘specify’ the Member State in which that payment account is to be located, provided that the payment account is reachable in accordance with Article 3 of that regulation, given that the term ‘direct debit’ is defined in Article 2(2) of that regulation as a national or cross-border payment service for debiting a payer’s payment account, where a payment transaction is initiated by the payee on the basis of the payer’s consent.22Pursuant to Article 3(2) of Regulation No 260/2012, a payer’s PSP which is reachable for a national direct debit under a payment scheme must be reachable in the same way, as is also apparent from recital 9 of the regulation, for direct debits initiated by a payee in accordance with the rules of a Union-wide payment scheme via a PSP located in another Member State.23It thus follows from the wording of Article 9(2) of Regulation No 260/2012, read in conjunction with Article 3(2) of that regulation, that a payee receiving a direct debit is prohibited from requiring that the payer’s account be located in a particular Member State when that account is reachable for a national direct debit.24In the present case it is common ground that, although the clause at issue in the main proceedings requires the payer to have his place of residence in the same Member State as that in which the payee has established his place of business, namely Germany, it does not, by contrast, require the payer to have a payment account in a specific Member State. That clause is therefore not explicitly covered by the wording of Article 9(2) of Regulation No 260/2012.25However, the Court of Justice has consistently held that, in interpreting provisions of EU law, it is necessary to consider not only their wording but also the context in which they occur and the objectives pursued by the rules of which they are part (judgment of 17 October 2018, Günter Hartmann Tabakvertrieb, C‑425/17, EU:C:2018:830, paragraph 18 and the case-law cited).26In that regard, the fundamental purpose of Regulation No 260/2012, as was noted in paragraphs 18 to 20 above, is to establish technical and business requirements, as regards direct debits in particular, in order to develop common Union-wide payment services.27That being said, Article 9(2) of that regulation, in so far as it expressly concerns the specific relationship between the payer and the payee, also contributes to the objective of achieving the high level of consumer protection necessary to ensure broad support for SEPA by those consumers, as is apparent from recital 32 of that regulation.28That provision allows, as regards payment by direct debit, a single payment account to be used for any transaction within the European Union, thus avoiding costs associated with maintaining several payment accounts, and does so by ensuring, as is apparent from recital 10 of Regulation No 260/2012, that business rules do not have the effect of preventing consumers from making payments, within the context of an integrated market for electronic payments in euros, to accounts held by payees with PSPs located in other Member States.29However, it must be noted that a clause, such as the one at issue in the main proceedings, under which a distinction is drawn on the basis of the payer’s place of residence, is liable to operate mainly to the detriment of consumers who do not have a payment account in the Member State in which the payee has established his place of business. It is common ground that consumers most often have a payment account in the Member State in which they are resident.30Such a clause therefore indirectly indicates the Member State in which the payment account must be located, thus producing effects comparable to those resulting from such an indication of a specific Member State.31In most instances, that residence condition restricts the accessibility of payment by SEPA direct debit only to payers with a payment account in the Member State in which the payee has established his place of business and, accordingly, excludes from this method of payment payers with payment accounts in other Member States.32Accordingly, that clause reserves this method of payment essentially to national payment transactions within the meaning of Article 2(27) of Regulation No 260/2012, namely those made between a payer and a payee each with a payment account with PSPs located in the same Member State, and to the exclusion, as a result, of most cross-border payment transactions, which involve, in accordance with Article 2(26) of that regulation, PSPs located in different Member States.33It follows that a clause such as that at issue in the main proceedings is liable to undermine the practical effect of Article 9(2) of Regulation No 260/2012, since it prevents payers from being able to make a direct debit from an account located in the Member State of their choice. That clause therefore frustrates the objective pursued by that provision, that being, as was stated in paragraph 28 above, to prevent business rules from undermining the development of an integrated market for electronic payments in euros, referred to in recital 1 of that regulation.34In this regard it is irrelevant that the consumer may use alternative payment methods. Although payees remain free either to offer payers the possibility of making payments by SEPA direct debit or not, by contrast, contrary to what Deutsche Bahn maintains, when they do offer such a possibility, those payees may not subject the use of that payment method to conditions which undermine the practical effects of Article 9(2) of Regulation No 260/2012.35However, according to Deutsche Bahn, it can be inferred from Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ 2018 L 60 I, p. 1) that Article 9(2) of Regulation No 260/2012 does not relate to a residence condition, such as that at issue in the main proceedings.36However, aside from the fact that it excludes from its scope transport services, such as those at issue in the main proceedings, and that it only became applicable from 3 December 2018, that is to say after the facts of the main proceedings, it is sufficient to state that Regulation No 2018/302, which specifically concerns geo-blocking, has no effect whatsoever on the interpretation of Article 9(2) of Regulation No 260/2012, as the Advocate General noted in point 39 of his Opinion, in the absence of a cross-reference made by the EU legislature between those two regulations.37Deutsche Bahn also maintains that a residence condition such as that at issue in the main proceedings is justified by the need to credit-check payers, since the risk of abuse or default on payment is particularly high when, as in the case in the main proceedings, the direct debit follows on from a mandate delivered directly by the payer to the payee without the involvement of either of their payment service providers. In those circumstances, the payee should himself assess the risk of the client defaulting on his payment.38It must be noted, however, as the Advocate General observed in points 46 and 47 of his Opinion, that neither Article 9(2) of Regulation No 260/2012 nor any other provision of that regulation provide for an exception to the obligation set out therein, the EU legislature having sufficiently taken into consideration the various interests at stake between payers and payees when adopting that provision.39In any event, as the Commission noted during the hearing, nothing prevents a payee from reducing the risk of abuse or of default on payment by, for example, providing that delivery or printing of tickets will only be possible once the payee has received confirmation that the payment has actually been collected.40In the light of the foregoing, the answer to the question referred is that Article 9(2) of Regulation No 260/2012 must be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which excludes payment by SEPA direct debit where the payer does not have his place of residence in the same Member State as that in which the payee has established his place of business. Costs 41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fifth Chamber) hereby rules: Article 9(2) of Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 must be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which excludes payment by direct debit in euros under the European Union-wide direct debit scheme (SEPA direct debit) where the payer does not have his place of residence in the same Member State as that in which the payee has established his place of business. [Signatures]( *1 ) Language of the case: German. | 8bed5-662aa00-42ff | EN |
According to Advocate General Szupunar a service such as that provided by the AIRBNB portal constitutes an information society service | 19 December 2019 ( *1 )(Reference for a preliminary ruling — Directive 2000/31/EC — Information society services — Directive 2006/123/EC — Services — Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation — Qualification — National legislation imposing certain restrictions on the exercise of the profession of real estate agent — Directive 2000/31/EC — Article 3(4)(b), second indent — Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification — Enforceability — Criminal proceedings with an ancillary civil action)In Case C‑390/18,REQUEST for a preliminary ruling under Article 267 TFEU from the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris, France), made by decision of 7 June 2018, received at the Court on 13 June 2018, in the criminal proceedings against X, interveners: YA, Airbnb Ireland UC, Hôtelière Turenne SAS, Association pour un hébergement et un tourisme professionnels (AHTOP), Valhotel, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, D. Šváby (Rapporteur) and N. Piçarra, Judges,Advocate General: M. Szpunar,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 14 January 2019,after considering the observations submitted on behalf of:–Airbnb Ireland UC, by D. Van Liedekerke, O.W. Brouwer and A.A.J. Pliego Selie, advocaten,the Association pour un hébergement et un tourisme professionnels (AHTOP), by B. Quentin, G. Navarro and M. Robert, avocats,the French Government, by E. de Moustier and R. Coesme, acting as Agents,the Czech Government, by M. Smolek, J. Vláčil and T. Müller, acting as Agents,the Spanish Government, by M.J. García-Valdecasas Dorrego, acting as Agent,the Luxembourg Government, initially by D. Holderer, and subsequently by T. Uri, acting as Agents,the European Commission, by L. Malferrari, É. Gippini Fournier and S.L. Kalėda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).2The request has been made in criminal proceedings against X, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person without a professional licence. Legal context EU law Directive 98/34 3Point 2 of the first paragraph of Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’), provides the following:‘For the purposes of this Directive, the following meanings shall apply:…2.“service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.For the purposes of this definition:“at a distance” means that the service is provided without the parties being simultaneously present,“by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,“at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.…’ Directive (EU) 2015/1535 4Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1) repealed and replaced Directive 98/34 as of 7 October 2015.5Article 1(1)(b) of Directive 2015/1535 states:‘For the purposes of this Directive, the following definitions apply:(b)“service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.(i)“at a distance” means that the service is provided without the parties being simultaneously present;(ii)“by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;(iii)An indicative list of services not covered by this definition is set out in Annex I.’6Article 5(1) of that directive provides:‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.7Under the second paragraph of Article 10 of Directive 2015/1535, references to Directive 98/34 are henceforth to be construed as references to Directive 2015/1535. Directive 2000/31 8Recital 8 of Directive 2000/31 states:‘The objective of this Directive is to create a legal framework to ensure the freedom of information society services between Member States and not to harmonise the field of criminal law as such.’9In the version before the entry into force of Directive 2015/1535, Article 2(a) of Directive 2000/31 defined ‘information society services’ as services within the meaning of point 2 of the first paragraph of Article 1 of Directive 98/34. Since that directive entered into force, that reference must be understood as being made to Article 1(1)(b) of Directive 2015/1535.10Article 2(h) of Directive 2000/31 provides:‘(h)“coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.The coordinated field concerns requirements with which the service provider has to comply in respect of:the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider;The coordinated field does not cover requirements such as:requirements applicable to goods as such,requirements applicable to the delivery of goods,requirements applicable to services not provided by electronic means.’11Article 3(2) and (4) to (6) of that directive states the following:‘2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:(a)the measures shall be:necessary for one of the following reasons:public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons,the protection of public health,public security, including the safeguarding of national security and defence,the protection of consumers, including investors;taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;proportionate to those objectives;before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.5. Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph 1, indicating the reasons for which the Member State considers that there is urgency.6. Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.’ Directive 2006/123/EC 12Article 3(1) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) provides:‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. …’ French law 13Article 1 of Law No 70-9 of 2 January 1970 regulating the conditions for the exercise of activities relating to certain transactions concerning real property and financial goodwill (JORF of 4 January 1970, p. 142), in the version applicable to the facts in the main proceedings (‘the Hoguet Law’), provides:‘The provisions of the present law apply to all natural or legal persons who lend themselves to or give their assistance on a regular basis, even in an ancillary capacity, to any transaction affecting the goods of others and relative to:1. the purchase, sale, search for, exchange, leasing or sub-leasing, seasonal or otherwise, furnished or unfurnished, of existing buildings or those under construction;14Article 3 of that law provides:‘The activities listed in Article 1 may be practised only by natural persons or legal entities holding a professional licence that has been issued, for a period and in accordance with rules laid down by a decree of the Council of State, by the President of the Regional Chamber of Commerce and Industry or by the President of the Île-de-France Regional Chamber of Commerce and Industry, listing the transactions which those persons may carry out. …That licence may be issued only to natural persons on condition that they:1. provide proof of their professional credentials;2. provide proof of a financial guarantee permitting the reimbursement of funds …;3. take out insurance against the financial consequences of their civil and professional liability;4. are not caught by one of the validation or disqualification conditions …15Article 5 of that law provides:‘The persons referred to in Article 1 who receive or possess sums of money … must respect the conditions laid down by the decree of the Council of State, in particular the formalities of record keeping and the delivery of receipts, as well as other obligations arising from that mandate.’16Article 14 of that law is worded as follows:‘The following acts are punishable by 6 months’ imprisonment and a fine of EUR 7 500:lending oneself to or providing assistance on a regular basis, even in an ancillary capacity, to the transactions listed in Article 1 without holding a valid licence issued in accordance with Article 3, or after such a licence has been restored, or if the aforesaid licence has not been restored after a declaration of non-competence from the appropriate administrative body;17Article 16 of the Hoguet Law provides:‘The following acts are punishable by 2 years’ imprisonment and a fine of EUR 30000:1. receiving or possessing at the time of the transactions listed in Article 1, in whatever capacity or manner, sums of money, goods, or stocks and bonds that are:in breach of Article 3;in breach of the conditions laid down in Article 5 regarding the keeping of records and the delivery of receipts when such documents and receipts are legally required; The dispute in the main proceedings and the questions referred for a preliminary ruling 18Airbnb Ireland UC, a company established in Dublin (Ireland) under Irish law, is part of the Airbnb Group, made up of a number of companies directly or indirectly owned by Airbnb Inc., which is established in the United States. Airbnb Ireland offers an electronic platform the purpose of which is, on payment of a commission, to establish contact, in particular in France, between, on the one hand, hosts, whether professionals or private individuals, with accommodation to rent and, on the other, people looking for such accommodation. Airbnb Payments UK Ltd, a company established in London (United Kingdom) under the law of the United Kingdom, provides online payment services as part of that contact service and manages the payment activities of the Group in the European Union. In addition, Airbnb France SARL, a company established under French law and a supplier to Airbnb Ireland, is responsible for promoting that platform among users in the French market by organising, inter alia, advertising campaigns for target audiences.19Apart from the service of connecting hosts and guests using its electronic platform which centralises offers, Airbnb Ireland offers the hosts a certain number of other services, such as a format for setting out the content of their offer, with an option for a photography service, and also with an option for civil liability insurance and a guarantee against damages for up to EUR 800000. Furthermore, it provides them with an optional tool for estimating the rental price having regard to the market averages taken from that platform. In addition, if a host accepts a guest, the guest will transfer to Airbnb Payments UK the rental price to which is added 6% to 12% of that amount in respect of charges and the service provided by Airbnb Ireland. Airbnb Payments UK holds the money on behalf of the guest and then, 24 hours after the guest checks in, sends the money to the host by transfer, thus giving the guest assurance that the property exists and the host a guarantee of payment. Finally, Airbnb Ireland has put in place a system whereby the host and the guest can leave an evaluation on a scale of zero to five stars, and that evaluation is available on the electronic platform at issue.20In practice, as is apparent from the explanations provided by Airbnb Ireland, internet users looking for rental accommodation connect to its electronic platform, identify the place where they wish to go to and the period and number of persons of their choice. On that basis, Airbnb Ireland provides them with the list of available accommodation matching those criteria so that the users can select the accommodation of their choice and proceed to reserve it online.21In that context, users of the electronic platform at issue, both hosts and guests, conclude a contract with Airbnb Ireland for the use of that platform and with Airbnb Payments UK for the payments made via that platform.22On 24 January 2017, the Association pour un hébergement et un tourisme professionnels (Association for professional tourism and accommodation, AHTOP) lodged a complaint together with an application to be joined as a civil party to the proceedings, inter alia, for the practice of activities concerning the mediation and management of buildings and businesses without a professional licence, under the Hoguet Law, between 11 April 2012 and 24 January 2017.23In support of its complaint, AHTOP claims that Airbnb Ireland does not merely connect two parties through its platform; it also offers additional services which amount to an intermediary activity in property transactions.24On 16 March 2017, after that complaint was lodged, the Public Prosecutor attached to the Tribunal de grande instance de Paris (Regional Court, Paris, France) brought charges, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person with no professional licence, contrary to the Hoguet Law, for the period between 11 April 2012 and 24 January 2017.25Airbnb Ireland denies acting as a real estate agent and argues that the Hoguet Law is inapplicable on the ground that it is incompatible with Directive 2000/31.26In that context, the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) is uncertain whether the service provided by Airbnb Ireland should be classified as an ‘information society service’ within the meaning of that directive and, if so, whether it precludes the Hoguet Law from being applied to that company in the main proceedings or whether, on the contrary, that directive does not preclude criminal proceedings being brought against Airbnb Ireland on the basis of that law.27In those circumstances the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Do the services provided in France by … Airbnb Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services established in Article 3 of [Directive 2000/31]?(2)Are the restrictive rules relating to the exercise of the profession of real estate agent in France laid down by [the Hoguet Law] enforceable against Airbnb Ireland?’ Consideration of the questions referred Admissibility of the request for a preliminary ruling 28Airbnb Ireland claims that the referring court is wrong to take the view that the activities of Airbnb Ireland come within the scope of the Hoguet Law. The French Government expressed the same view at the hearing.29In that regard, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).30In the present case, as the French Government acknowledges, in essence, the referring court raises the issue of the enforceability of the provisions of the Hoguet Law against Airbnb Ireland because it implicitly considers that the intermediation service provided by that company falls within the material scope of that law.31However, it is not manifestly apparent that the referring court’s interpretation of the Hoguet Law is clearly precluded in the light of the wording of the provisions of national law contained in the order for reference (see, by analogy, judgment of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 28).32Airbnb Ireland further submits that the order for reference contains a summary of French national legislation and that it should have taken into consideration other provisions of that legislation. For its part, the Commission argues that that decision is vitiated by a lack of factual details.33In the present case, the order for reference sets out briefly but precisely the relevant national legal context and the origin and nature of the dispute. It follows that the referring court has defined the factual and legal context of its request for an interpretation of EU law sufficiently and that it has provided the Court with all the information necessary to enable it to reply usefully to that request (judgment of 23 March 2006, Enirisorse, C‑237/04, EU:C:2006:197, paragraph 19).34In those circumstances, this request for a preliminary ruling cannot be considered to be inadmissible in its entirety. Preliminary observations 35In their observations, AHTOP and the Commission respectively argue that the legislation at issue in the main proceedings must be assessed having regard, not only to Directive 2000/31, but also to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) and Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).36In that regard, it should be pointed out that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to rule on the case before it. In that context, the Court may extract from all the information provided by the national court, in particular from the grounds of the order for reference, the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings in order to reformulate the questions referred to it and to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in those questions (see, to that effect, judgment of 16 July 2015, Abcur, C‑544/13 and C‑545/13, EU:C:2015:481, paragraphs 33 and 34 and the case-law cited).37However, it is for the national court alone to determine the subject matter of the questions which it wishes to refer to the Court. Thus, where the request itself does not reveal a need to reformulate those questions, the Court cannot, at the request of one of the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, examine questions which have not been submitted to it by the national court. If, in view of developments during the proceedings, the national court were to consider it necessary to obtain further interpretations of EU law, it would be for it to make a fresh reference to the Court (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 48 and the case-law cited).38In the present case, and in the absence of any mention of Directives 2005/36 and 2007/64 in the questions referred or indeed of any other explanations in the order for reference that require the Court to consider the interpretation of those directives in order to provide a useful reply to the referring court, there is no reason for the Court to examine the arguments relating to those directives, which would effectively result in the Court modifying the substance of the questions referred to it. The first question 39By its first question, the referring court asks, in essence, whether Article 2(a) of Directive 2000/31 must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of other services, such as a format for setting out the content of their offer, a photography service, civil liability insurance and a guarantee against damages, a tool for estimating the rental price or payment services for those accommodation services, must be classified as an ‘information society service’ under Directive 2000/31.40As a preliminary point, it should be stated, first — and this is not disputed by any of the parties or by the other interested parties involved in the present proceedings — that the activity of intermediation at issue in the main proceedings comes under the notion of ‘service’ within the meaning of Article 56 TFEU and Directive 2006/123.41Secondly, it must nevertheless be recalled that, under Article 3(1) of Directive 2006/123, that directive does not apply if its provisions conflict with a provision of another EU act governing specific aspects of access to, or the exercise of, a service activity in specific services or for specific professions.42Therefore, in order to determine whether a service such as the one at issue in the main proceedings comes under Directive 2006/123, as is claimed by AHTOP and the French Government, or by contrast, under Directive 2000/31, as is maintained by Airbnb Ireland, the Czech and Luxembourg Governments and the Commission, it is necessary to determine whether such a service must be qualified as an ‘information society service’, within the meaning of Article 2(a) of Directive 2000/31.43In that regard, and bearing in mind the period covered by the facts referred to in the complaint lodged by AHTOP and the criminal proceedings with an ancillary civil action pending before the referring court, the definition of the notion of ‘information society service’ under Article 2(a) of Directive 2000/31, was successively referred to in point 2 of the first paragraph of Article 1 of Directive 98/34 and then, as of 7 October 2015, in Article 1(1)(b) of Directive 2015/1535. That definition was not, however, amended on the entry into force, on 7 October 2015, of Directive 2015/1535, for which reason only that directive will be referred to in this judgment.44Under Article 1(1)(b) of Directive 2015/1535, the concept of an ‘information society service’ covers ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.45In the present case, the referring court states, as is clear from paragraph 18 above, that the service at issue in the main proceedings, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services so as to enable the former to reserve accommodation.46It follows, first of all, that that service is provided for remuneration, even though the remuneration received by Airbnb Payments UK is only collected from the guest and not also from the host.47Next, in so far as the host and the guest are connected by means of an electronic platform without the intermediation service provider, on the one hand, or the host or guest, on the other, being present at the same time, that service constitutes a service which is provided electronically and at a distance. Indeed, at no point during the process of concluding the contracts between, on the one hand, Airbnb Ireland or Airbnb Payments UK and, on the other, the host or the guest, do the parties come into contact other than by means of the Airbnb Ireland electronic platform.48Finally, the service in question is provided at the individual request of the recipients of the service, since it involves both the placing online of an advertisement by the host and an individual request from the guest who is interested in that advertisement.49Therefore, such a service meets the four cumulative conditions laid down in Article 1(1)(b) of Directive 2015/1535 and therefore, in principle, constitutes an ‘information society service’ within the meaning of Directive 2000/31.50However, as the parties and the other interested parties involved in the present proceedings submit, the Court has held that, although an intermediation service which satisfies all of those conditions, in principle, constitutes a service distinct from the subsequent service to which it relates and must therefore be classified as an ‘information society service’, that cannot be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification (see, to that effect, judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 40).51In the present case, AHTOP essentially claims that the service provided by Airbnb Ireland forms an integral part of an overall service, whose main component is the provision of an accommodation service. To that end, it submits that Airbnb Ireland does not just connect two parties through its electronic platform of the same name, but also offers additional services which are characteristic of an intermediary activity in property transactions.52However, although it is true that the purpose of the intermediation service provided by Airbnb Ireland is to enable the renting of accommodation — and it is common ground that that comes under Directive 2006/123 — the nature of the links between those services does not justify departing from the classification of that intermediation service as an ‘information society service’ and therefore the application of Directive 2000/31 to it.53Such an intermediation service cannot be separated from the property transaction itself, in that it is intended not only to provide an immediate accommodation service, but also, on the basis of a structured list of the places of accommodation available on the electronic platform of the same name and corresponding to the criteria selected by the persons looking for short-term accommodation, to provide a tool to facilitate the conclusion of contracts concerning future interactions. It is the creation of such a list for the benefit both of the hosts who have accommodation to rent and persons looking for that type of accommodation which constitutes the essential feature of the electronic platform managed by Airbnb Ireland.54In that regard, because of its importance, the compiling of offers using a harmonised format, coupled with tools for searching for, locating and comparing those offers, constitutes a service which cannot be regarded as merely ancillary to an overall service coming under a different legal classification, namely provision of an accommodation service.55In addition, a service such as the one provided by Airbnb Ireland is in no way indispensable to the provision of accommodation services, both from the point of view of the guests and the hosts who use it, since both have a number of other, sometimes long-standing, channels at their disposal, such as estate agents, classified advertisements, whether in paper or electronic format, or even property lettings websites. In that regard, the mere fact that Airbnb Ireland is in direct competition with those other channels by providing its users, both hosts and guests, with an innovative service based on the particular features of commercial activity in the information society does not permit the inference that it is indispensable to the provision of an accommodation service.56Finally, it is not apparent, either from the order for reference or from the information in the file before the Court, that Airbnb Ireland sets or caps the amount of the rents charged by the hosts using that platform. At most, it provides them with an optional tool for estimating their rental price having regard to the market averages taken from that platform, leaving responsibility for setting the rent to the host alone.57As such, it follows that an intermediation service such as the one provided by Airbnb Ireland cannot be regarded as forming an integral part of an overall service, the main component of which is the provision of accommodation.58None of the other services mentioned in paragraph 19 above, taken together or in isolation, call into question that finding. On the contrary, such services are ancillary in nature, given that, for the hosts, they do not constitute an end in themselves, but rather a means of benefiting from the intermediation service provided by Airbnb Ireland or of offering accommodation services in the best conditions (see, by analogy, judgments of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 52; of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 71; and of 4 September 2019, KPC Herning, C‑71/18, EU:C:2019:660, paragraph 38).59First of all, that is the case as regards the fact that, in addition to its activity of connecting hosts and guests via the electronic platform of the same name, Airbnb Ireland provides hosts with a format for setting out the content of their offer, an optional photography service for the rental property and a system for rating hosts and guests which is available to future hosts and guests.60Such tools form part of the collaborative model inherent in intermediation platforms, which makes it possible, first, for those seeking accommodation to make a fully informed choice from among the accommodation offerings proposed by the hosts on the platform and, secondly, for hosts to be fully informed of the reliability of the guests with whom they might engage.61Next, that is the case with regard to the fact that Airbnb Payments UK, a company within the Airbnb Group, is responsible for collecting the rents from the guests and then transferring those rents to the hosts, in accordance with the conditions set out in paragraph 19 above.62Such payment conditions, which are common to a large number of electronic platforms, are a tool for securing transactions between hosts and guests, and their presence alone cannot modify the nature of the intermediation service, especially where such payment conditions are not accompanied, directly or indirectly, by price controls for the provision of accommodation, as was pointed out in paragraph 56 above.63Finally, nor is the fact that Airbnb Ireland offers hosts a guarantee against damage and, as an option, civil liability insurance capable of modifying the legal classification of the intermediation service provided by that platform.64Even taken together, the services, optional or otherwise, provided by Airbnb Ireland and referred to in paragraphs 59 to 63 above, do not call into question the separate nature of the intermediation service provided by that company and therefore its classification as an ‘information society service’, since they do not substantially modify the specific characteristics of that service. In that regard, it is also paradoxical that such added-value ancillary services provided by an electronic platform to its customers, in particular to distinguish itself from its competitors, may, in the absence of additional elements, result in the nature and therefore the legal classification of that platform’s activity being modified, as was observed by the Advocate General in point 46 of his Opinion.65Furthermore, and contrary to what AHTOP and the French Government maintain, the rules for the functioning of an intermediation service such as the one provided by Airbnb cannot be equated to those of the intermediation service which gave rise to the judgments of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 39), and of 10 April 2018, Uber France (C‑320/16, EU:C:2018:221, paragraph 21).66Apart from the fact that those judgments were given in the specific context of urban passenger transport to which Article 58(1) TFEU applies and that the services provided by Airbnb Ireland are not comparable to those that were at issue in the cases giving rise to the judgments referred to in the previous paragraph, the ancillary services referred to in paragraphs 59 to 63 above do not provide evidence for the same level of control found by the Court in those judgments.67Thus, the Court stated in those judgments that Uber exercised decisive influence over the conditions under which transport services were provided by the non-professional drivers using the application made available to them by that company (judgments of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 39, and of 10 April 2018, Uber France, C‑320/16, EU:C:2018:221, paragraph 21).68The matters mentioned by the referring court and recalled in paragraph 19 above do not establish that Airbnb Ireland exercises such a decisive influence over the conditions for the provision of the accommodation services to which its intermediation service relates, particularly since Airbnb Ireland does not determine, directly or indirectly, the rental price charged, as was established in paragraphs 56 and 62 above, still less does it select the hosts or the accommodation put up for rent on its platform.69In the light of the foregoing, the answer to the first question is that Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31. The second question Jurisdiction 70The French Government submits that the Court manifestly lacks jurisdiction to answer the second question, inasmuch as the referring court is asking the Court of Justice to decide whether the activities of Airbnb Ireland fall within the material scope of the Hoguet Law and therefore to interpret French law.71It is, however, clear from the wording of the second question that the referring court is not thereby asking the Court whether the Hoguet Law applies to the activities of Airbnb Ireland, but whether that law, which it finds to be restrictive of the freedom to provide information society services, is enforceable against that company.72That question which is closely linked to the power given in Article 3(4)(a) of Directive 2000/31 to Member States to derogate from the principle of the freedom to provide information society services and to the obligation for those Member States to give the Commission and the relevant Member State notification of the measures adversely affecting that principle, as provided for in Article 3(4)(b) of that directive, is a question concerning the interpretation of EU law.73Therefore, the Court has jurisdiction to answer that question. Admissibility 74In the alternative, the French Government submits that, since the referring court has failed to establish that the activities of Airbnb Ireland fall within the material scope of the Hoguet Law, its second question does not set out the reasons why it is unsure as to the interpretation of Directive 2000/31 and does not identify the link which that court establishes between that directive and the Hoguet Law. It does not therefore satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice and is accordingly inadmissible.75In that regard, as was set out in paragraph 30 above, it is clear from the second question that, according to the referring court, the intermediation service provided by Airbnb Ireland through the electronic platform of the same name falls within the material scope of that law.76In addition, by referring to the restrictive nature of that law as regards services such as the intermediation service at issue in the main proceedings and the principle of the freedom to provide information society services, recognised in Articles 1 and 3 of Directive 2000/31, while setting out the difficulties of interpreting that directive with regard to the question whether national legislation such as the Hoguet Law may be enforced against Airbnb Ireland, the referring court satisfies the minimum requirements laid down by Article 94 of the Rules of Procedure.77Accordingly, the second question is admissible. Substance 78By its second question, the referring court asks the Court of Justice whether the legislation at issue in the main proceedings is enforceable against Airbnb Ireland.79That question is prompted by the argument advanced by Airbnb Ireland concerning the incompatibility of the provisions of the Hoguet Law at issue in the main proceedings with Directive 2000/31 and, more particularly, by the fact that the French Republic has not satisfied the conditions laid down in Article 3(4) of that directive allowing Member States to adopt measures restricting the freedom to provide information society services.80The second question should therefore be construed as asking whether Article 3(4) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures do not satisfy all the conditions laid down by that provision.81As a preliminary point, it should be noted that the legislation at issue in the main proceedings, as the referring court points out, is restrictive of the freedom to provide information society services.82First, the requirements of the Hoguet Law mentioned by the referring court, principally the obligation to hold a professional licence, concern access to the activity of connecting hosts who have places of accommodation and persons seeking that type of accommodation within the meaning of Article 2(h)(i) of Directive 2000/31 and do not come under any of the excluded categories referred to in Article 2(h)(ii) of that directive. Secondly, they apply inter alia to service providers established in Member States other than the French Republic, thereby making the provision of their services in France more difficult.83Under Article 3(4) of Directive 2000/31, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, subject to two cumulative conditions.84First, under Article 3(4)(a) of Directive 2000/31, the restrictive measure concerned must be necessary in the interests of public policy, the protection of public health, public security or the protection of consumers; it must be taken against an information society service which actually undermines those objectives or constitutes a serious and grave risk to those objectives and, finally, it must be proportionate to those objectives.85Secondly, under the second indent of Article 3(4)(b) of that directive, before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State concerned must notify the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt the restrictive measures concerned.86With regard to the second condition, the French Government accepts that the Hoguet Law did not give rise to a notification by the French Republic either to the Commission or to the Member State of establishment of Airbnb Ireland, that is to say, Ireland.87It must be stated at the outset that the fact that that law predates the entry into force of Directive 2000/31 cannot have had the consequence of freeing the French Republic of its notification obligation. As the Advocate General stated in point 118 of his Opinion, the EU legislature did not make provision for a derogation authorising Member States to maintain measures predating that directive and which could restrict the freedom to provide information society services without complying with the conditions laid down for that purpose by that directive.88It is therefore necessary to determine whether a Member State’s failure to fulfil its obligation to give prior notification of the measures restricting the freedom to provide information society services coming from another Member State, laid down in the second indent of Article 3(4)(b) of Directive 2000/31, renders the legislation concerned unenforceable against individuals, in the same way as a Member State’s failure to fulfil its obligation to give prior notification of the technical rules, laid down in Article 5(1) of Directive 2015/1535, has that consequence (see, to that effect, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54).89In that regard, it should, first, be pointed out that the second indent of Article 3(4)(b) of Directive 2000/31 imposes a specific obligation for Member States to notify the Commission and the Member State on whose territory the service provider in question is established of their intention to adopt measures restricting the freedom to provide information society services.90From the point of view of its content, the obligation laid down in that provision is therefore sufficiently clear, precise and unconditional to confer on it direct effect and, therefore, it may be invoked by individuals before the national courts (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 44).91Secondly, it is common ground that, as is apparent from Article 3(2) of Directive 2000/31, read in conjunction with recital 8 of that directive, the objective of that directive is to ensure the freedom to provide information society services between Member States. That objective is pursued by way of a mechanism for monitoring measures capable of undermining it, which makes it possible for both the Commission and the Member State on whose territory the service provider in question is established to ensure that those measures are necessary in furtherance of overriding reasons in the general interest.92In addition, and as is apparent from Article 3(6) of that directive, the Commission, which is responsible for examining without delay the compatibility with EU law of the notified measures, is required, when it reaches the conclusion that the proposed measures are incompatible with EU law, to ask the Member State concerned to refrain from adopting those measures or to put an end to the measures in question as a matter of urgency. Thus, under that procedure, the Commission can avoid the adoption or at least the maintenance of obstacles to trade contrary to the TFEU, in particular by proposing amendments to be made to the national measures concerned (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 41).93It is true, as the Spanish Government, in particular, submits and as is apparent from Article 3(6) of Directive 2000/31, that the second indent of Article 3(4)(b) of that directive, unlike Article 5(1) of Directive 2015/1535, does not formally impose any standstill obligation on a Member State which intends to adopt a measure restricting the freedom to provide an information society service. However, as was pointed out in paragraph 89 above, except in duly justified urgent cases, the Member State concerned must give prior notification to the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt such a measure.94In view of the matters raised in paragraphs 89 to 92 above, the prior notification obligation established by the second indent of Article 3(4)(b) of Directive 2000/31 is not simply a requirement to provide information, comparable to the one at issue in the case which gave rise to the judgment of 13 July 1989, Enichem Base and Others (380/87, EU:C:1989:318, paragraphs 19 to 24), but rather an essential procedural requirement which justifies the unenforceability of non-notified measures restricting the freedom to provide an information society service against individuals (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraphs 49 and 50).95Thirdly, the extension to Directive 2000/31 of the solution adopted by the Court in the judgment of 30 April 1996, CIA Security International (C‑194/94, EU:C:1996:172), in relation to Directive 2015/1535, is all the more justified, as was correctly pointed out by the Commission at the hearing, by the fact that the notification obligation under the second indent of Article 3(4)(b) of Directive 2000/31, like the measure at issue in the case which gave rise to that judgment, is not intended to prevent a Member State from adopting measures falling within its own field of competence and which could affect the freedom to provide services, but to prevent a Member State from impinging on the competence, as a matter of principle, of the Member State where the provider of the information society service concerned is established.96It follows from the foregoing that a Member State’s failure to fulfil its obligation to give notification of a measure restricting the freedom to provide an information society service provided by an operator established on the territory of another Member State, laid down in the second indent of Article 3(4)(b) of Directive 2000/31, renders the measure unenforceable against individuals (see, by analogy, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54).97In that regard, it must also be pointed out that, as was the case in relation to the technical rules of which the Member State did not give notification in accordance with Article 5(1) of Directive 2015/1535, the fact that a non-notified measure restricting the freedom to provide information society services is unenforceable may be relied on, not only in criminal proceedings (see, by analogy, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 84), but also in a dispute between individuals (see, by analogy, judgment of 27 October 2016, James Elliott Construction, C‑613/14, EU:C:2016:821, paragraph 64 and the case-law cited).98Therefore, in proceedings such as those at issue in the main proceedings, in which, in the course of an action before a criminal court, an individual seeks compensation from another individual for harm originating in the offence being prosecuted, a Member State’s failure to fulfil its obligation to give notification of that offence under the second indent of Article 3(4)(b) of Directive 2000/31 makes the national provision laying down that offence unenforceable against the individual being prosecuted and enables that person to rely on that failure to fulfil an obligation, not only in criminal proceedings brought against that individual, but also in the claim for damages brought by the individual who has been joined as a civil party.99Bearing in mind that the French Republic did not give notification of the Hoguet Law and given the cumulative nature of the conditions laid down in Article 3(4) of Directive 2000/31, recalled in paragraphs 84 and 85 above, the view must be taken that that law cannot, on any view, be applied to an individual in a situation like that of Airbnb Ireland in the main proceedings, regardless of whether that law satisfies the other conditions laid down in that provision.100In the light of the foregoing, the answer to the second question is that the second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision. Costs 101Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), which refers to Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31. 2. The second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision. [Signatures]( *1 ) Language of the case: French. | 7b91b-becf488-4e11 | EN |
National legislation may lay down, for the purpose of calculating the average weekly working time, reference periods which start and end on fixed calendar dates | 11 April 2019 ( *1 )(Reference for a preliminary ruling — Directive 2003/88/EC — Organisation of working time — Protection of the safety and health of workers — Maximum weekly working time — Reference period — Rolling or fixed nature — Derogation — Police officers)In Case C‑254/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 4 April 2018, received at the Court on 12 April 2018, in the proceedings Syndicat des cadres de la sécurité intérieure v Premier ministre, Ministre de l’Intérieur, Ministre de l’Action et des Comptes publics, THE COURT (Second Chamber),composed of A. Arabadjiev, President of the Chamber, T. von Danwitz, E. Levits, C. Vajda (Rapporteur) and P.G. Xuereb, Judges,Advocate General: G. Pitruzzella,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 29 November 2018,after considering the observations submitted on behalf of:–the Syndicat des cadres de la sécurité intérieure, by P. Gernez, avocat,the French Government, by R. Coesme, A.‑L. Desjonquères and E. de Moustier, acting as Agents,the European Commission, by C. Valero and by M. van Beek, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 6(b), Article 16(b), Article 17(3) and the first paragraph of Article 19 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).2The request has been made in proceedings between, on the one hand, the Syndicat des cadres de la sécurité intérieure (Union of higher-ranking security forces personnel; ‘the SCSI’) and, on the other hand, the Premier ministre (Prime Minister, France), the ministre de l’Intérieur (Minister for the Interior, France) and the ministre de l’Action et des Comptes publics (Minister for the Public Sector and Public Accounts, France) concerning the reference period used to calculate the average weekly working time of active officials of the national police force. Legal context EU law Directive 89/391/EEC 3Article 2 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1) states:‘1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.).2. This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it.In that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of this Directive.’ Directive 2003/88 4Recital 15 of Directive 2003/88 is worded as follows:‘In view of the question likely to be raised by the organisation of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers.’5Article 1 of Directive 2003/88 states:‘…2. This Directive applies to:(a)minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and(b)certain aspects of night work, shift work and patterns of work.3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this Directive.…4. The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.’6Article 3 of Directive 2003/88, which concerns daily rest, provides:‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’7Article 5 of that directive, entitled ‘Weekly rest period’, provides:‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.…’8Article 6 of Directive 2003/88, entitled ‘Maximum weekly working time’, reads as follows:‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:the average working time for each seven-day period, including overtime, does not exceed 48 hours.’9Article 16 of that directive, entitled ‘Reference periods’, provides:‘Member States may lay down:for the application of Article 6 (maximum weekly working time), a reference period not exceeding four months.The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average;10Article 17 of Directive 2003/88 provides for, inter alia, the following derogations:2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection.3. In accordance with paragraph 2 of this Article, derogations may be made from Articles 3, 4, 5, 8 and 16:in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;(c)in the case of activities involving the need for continuity of service or production …11Article 19 of that directive, entitled ‘Limitations to derogations from reference periods’, states in the first and second paragraphs:‘The option to derogate from Article 16(b), provided for in Article 17(3) and in Article 18, may not result in the establishment of a reference period exceeding six months.However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.’ French law 12Article 3 of décret No 2000-815, du 25 août 2000, relatif à l’aménagement et à la réduction du temps de travail dans la fonction publique de l’État et dans la magistrature (Decree No 2000-815 of 25 August 2000 on the organisation of, and reduction in, working time in the public sector and in the judiciary) (JORF of 29 August 2000, p. 13301), as amended by décret No 2011-184 du 15 février 2011 (Decree No 2011-184 of 15 February 2011) (JORF of 17 February 2011, p. 2963), provides:‘I. – The organisation of work must comply with the minimum guarantees set out below.The actual period of weekly working time, including overtime, may not exceed 48 hours in any one week, or 44 hours per week when averaged over any period of 12 consecutive weeks, and weekly rest, including in principle Sundays, cannot be less than 35 hours.II. – Derogations from the rules set out in [point] I may be made only in the following cases and under the following conditions:Where the purpose itself of the public service in question requires that service to be provided on a permanent basis, in particular for the protection of persons and property, by decree in the Conseil d’État (Council of State), made following the opinion of the Health and Safety Committee, where appropriate, the Ministerial Technical Committee and the Conseil supérieur de la fonction publique (Higher Council of the Civil Service), which determines measures to compensate the categories of agents concerned;13Article 1 of décret No 2002-1279, du 23 octobre 2002, portant dérogations aux garanties minimales de durée du travail et de repos applicables aux personnels de la police nationale (Decree No 2002-1279 of 23 October 2002 derogating from the minimum guaranteed working hours and periods of rest applicable to staff of the national police) (JORF of 25 October 2002, p. 17681), as amended by décret No 2017-109, du 30 janvier 2017 (Decree No 2017-109 of 30 January 2017) (JORF of 31 January 2017), is worded as follows:‘For the purpose of organising the work of active officials of the national police force, derogations from the minimum guarantees referred to in point I of Article 3 of the abovementioned Decree of 25 August 2000 shall apply where the tasks relating to public order and public safety, criminal investigations and intelligence gathering entrusted to such officials so require.This derogation must, nonetheless, comply with the following conditions:1.The measured weekly working time for each seven-day period, including overtime, may not exceed, on average, 48 hours in the course of a six-month period in a calendar year; The dispute in the main proceedings and the questions referred for a preliminary ruling 14It is apparent from the order for reference that Decree No 2002-1279, as amended by Decree No 2017-109, lays down specific rules concerning working time and rest periods applicable to staff of the French national police force. That decree provides inter alia, in Article 1, that the measured weekly working time for each seven-day period, including overtime, may not exceed, on average, 48 hours in the course of a six-month period in a calendar year.15On 28 March 2017, the SCSI brought proceedings before the Conseil d’État (Council of State, France) seeking the annulment of that provision. The SCSI argues, in particular, that by using, for the calculation of the average weekly working time, a reference period expressed in six-month periods in the calendar year, and not a six-month reference period the start and end of which change with the passage of time, that provision fails to comply with the rules set out in Directive 2003/88.16The referring court is seeking to ascertain whether Article 6, in conjunction with Article 16, of Directive 2003/88 must be interpreted as imposing a reference period determined on a rolling basis or as allowing the Member States to choose whether to employ a rolling or a fixed reference period.17The referring court is also unsure, in the event that a rolling reference period alone is possible, whether that period may still be rolling in nature when it is extended to six months by virtue of the derogation provided for in Article 17(3(b) of Directive 2003/88.18In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Must Articles 6 and 16 of Directive [2003/88] be interpreted as imposing a reference period determined on a rolling basis or as allowing Member States to choose whether to employ a rolling or a fixed reference period?(2)If those provisions are to be interpreted as requiring a rolling reference period, may the possibility afforded by Article 17 to derogate from Article 16(b) relate not only to the duration of the reference period but also to the requirement for a rolling period?’ Consideration of the questions referred 19By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(b), Article 16(b) and the first paragraph of Article 19 of Directive 2003/88 must be interpreted as precluding national legislation which lays down, for the purpose of the calculation of the average weekly working time, reference periods which start and end on fixed calendar dates, and not reference periods determined on a rolling basis.20Under Article 6(b) of that directive, ‘the average working time for each seven-day period, including overtime, does not exceed 48 hours’.21Article 16(b) of that directive provides that the Member States may lay down, for the purpose of the calculation of the average weekly working time, a reference period not exceeding four months.22The reference period referred to in Article 16(b) of Directive 2003/88 may, pursuant to the first paragraph of Article 19 of that directive, be extended by way of derogation to up to six months in certain cases or for certain activities specified in particular in Article 17(3) of that directive, such as ‘security and surveillance activities requiring a permanent presence in order to protect property and persons’ or ‘activities involving the need for continuity of service or production’. In the case in the main proceedings, the French Republic applied that derogation regime to active officials of the national police services.23It is thus clear from the provisions cited in paragraphs 21 and 22 of the present judgment that the average weekly working time may be calculated not over seven-day periods but over periods known as ‘reference’ periods of up to four months under the standard regime and of up to six months under the derogating regime. The calculation of the average weekly working time over such reference periods seeks, in accordance with recital 15 of Directive 2003/88, to provide for flexibility in the application of Article 6(b) of that directive, so that, should the maximum weekly working time be exceeded at certain times of the reference period, a corresponding reduction in working time may offset that excess at other times of the period. Therefore, an equal division of the number of working hours is not required over the entire duration of the reference period (judgment of 9 November 2017, Maio Marques da Rosa, C‑306/16, EU:C:2017:844, paragraph 43).24It is also apparent from the provisions cited in paragraphs 21 and 22 of the present judgment that the concept of ‘reference period’ is, first, a single notion which has the same meaning under the standard regime and the derogating regime and, second, a concept that does not contain any reference to the national law of the Member States and must therefore be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of how it may be characterised in the Member States, taking into account the wording of the provisions at issue and also their context and the purpose of the rules of which they form part (see, by analogy, judgment of 9 November 2017, Maio Marques da Rosa, C‑306/16, EU:C:2017:844, paragraph 38 and the case-law cited).25It is therefore necessary to determine, in the light of the wording and context of Articles 16 and 19 of Directive 2003/88 and of the objectives of that directive, whether the reference periods can be defined as periods which start and end on fixed calendar dates, namely fixed reference periods, or as periods the start and end of which move on a permanent basis with the passage of time, namely rolling reference periods.26In the first place, the fact remains, as noted by the Advocate General in point 46 of his Opinion, that Articles 16 and 19 of Directive 2003/88 have nothing to say on the question whether the reference periods must be determined on a fixed or on a rolling basis and that, therefore, the wording of those articles does not preclude the use of one of those methods more than that of the other.27In the second place, the context of Articles 16 and 19 of Directive 2003/88 also does not provide, as the Advocate General observed in point 58 of his Opinion, an answer to that question.28It is true, as the French Government and the European Commission noted in their written observations, that the Court has found, regarding the ‘seven-day period’ referred to in Article 5 of Directive 2003/88 concerning weekly rest and characterised by the Court as a ‘reference period’, within the meaning of that directive, that a reference period may be defined in that context as a set period within which a certain number of consecutive rest hours must be provided irrespective of when those rest hours are granted (judgment of 9 November 2017, Maio Marques da Rosa, C‑306/16, EU:C:2017:844, paragraph 43). The French Government infers from the use of the word ‘set’ in paragraph 43 of that judgment that the concept of ‘reference period’ should rather be understood as a period determined on a fixed basis.29However, such an interpretation of paragraph 43 of the judgment of 9 November 2017, Maio Marques da Rosa (C‑306/16, EU:C:2017:844), cannot be endorsed, as the Advocate General has noted in point 55 of his Opinion. The word ‘set’ used in that judgment must be understood not as a ‘period necessarily coinciding with the calendar year’, but as meaning a ‘unit of measurement of time’, namely, in that judgment, a seven-day period.30In the case which gave rise to the judgment of 9 November 2017, Maio Marques da Rosa (C‑306/16, EU:C:2017:844), the question analysed by the Court concerned not the fixed or rolling nature of the reference period but solely the determination of whether the mandatory day of weekly rest referred to in Article 5 of Directive 2003/88 had to be granted no later than the day following a period of six consecutive working days or whether it had to be granted within each seven-day period. By choosing that latter solution, the Court interpreted a ‘set period’ as meaning a period of a specific duration, without, however, giving a ruling as to whether the start and end of that period must or must not coincide with the calendar year or, more generally, correspond to fixed dates such as those of the calendar week.31It follows from the foregoing that, in the absence of any indication stemming from the wording and context of Articles 16 and 19 of Directive 2003/88, the Member States are, in principle, free to determine reference periods in accordance with their chosen method, subject to respect for the objectives of that directive.32As regards, in the third place, the objectives pursued by Directive 2003/88, it must be recalled that it follows from settled case-law that that directive seeks to ensure better protection of the safety and health of workers, by providing in particular, in its Article 6(b), a maximum limit to the average weekly working time. That maximum limit constitutes a particularly important rule of EU social law from which every worker must benefit as a minimum requirement intended to ensure protection of his safety and health (judgments of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraphs 32 and 33 and the case-law cited, and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraphs 23 and 24 and the case-law cited).33Moreover, in order to ensure that the rights conferred on workers by Directive 2003/88 are fully effective, Member States are under an obligation to guarantee that each of the minimum requirements laid down by the directive is observed and to prevent in particular the maximum average weekly working time as provided for in Article 6(b) of that directive from being exceeded. That interpretation is the only interpretation which meets the objective pursued by that directive, which is to guarantee effective protection of the safety and health of workers by allowing them to have a period of working time which does not, on average, exceed the maximum limit of 48 hours per week over the entire duration of the reference period (see, to that effect, judgments of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 40 and the case-law cited, and of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 51 and the case-law cited).34In that regard, the Court has held that that objective implies that each worker must, inter alia, enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work, but also preventive in nature, so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are liable to engender (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 41 and the case-law cited).35It must also be noted that, as is apparent from recital 15 of Directive 2003/88, the flexibility provided by the directive in Articles 16 and 19 as regards the application, in particular, of Article 6(b) of that directive is without prejudice to compliance with the principles of the protection of the safety and health of workers.36Furthermore, it follows from the case-law of the Court that the derogations provided for in Article 17 of Directive 2003/88 must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected (see, to that effect, judgments of 26 July 2017, Hälvä and Others, C‑175/16, EU:C:2017:617, paragraph 31, and of 21 February 2018, Matzak, C‑518/15, EU:C:2018:82, paragraph 38).37It is in the light of those considerations that it is appropriate to determine whether both fixed reference periods and rolling reference periods comply with the objective of Directive 2003/88 consisting in guaranteeing the effective protection of the safety and health of workers.38In that regard, it must be noted that fixed and rolling reference periods comply, in themselves, with that objective of Directive 2003/88, in that they make it possible to verify that a worker does not work more than 48 hours on average per week over the entire duration of the period in question and that the requirements relating to his health and safety are thus met. For that purpose, it is irrelevant whether the start and end of the reference period are determined according to fixed calendar dates or according to the passage of time.39The effect of fixed reference periods on the safety and health of workers depends nevertheless on all the relevant circumstances, such as the nature of the work and its conditions, as well as, in particular, the maximum limit on weekly working time and the duration of the reference period adopted by the Member State concerned. As all the parties to the proceedings have agreed, fixed reference periods may, in contrast to rolling reference periods, create situations in which the objective of protecting the health and safety of workers may not be met.40In that regard, it must be noted that the fixed reference period method may lead an employer to require a worker to undertake, over two consecutive fixed reference periods, an extremely long period of work and, while respecting the rest periods referred to in Articles 3 and 5 of Directive 2003/88, consequently make that worker exceed, on average, the maximum weekly working time over a period which, since it straddles those two fixed periods, corresponds to a rolling reference period of the same duration. Such a situation cannot arise when the reference period is determined on a rolling basis, since, by definition, rolling reference periods lead to a continuous recalculation of the average weekly working time.41Thus, while fixed and rolling reference periods, taken separately, comply, in themselves, with the objective of protecting the health and safety of workers, the combination of two consecutive fixed reference periods may, depending on the maximum weekly working time and the duration of the reference period adopted by the Member State concerned, lead to situations in which that objective may be jeopardised, even though the rest periods referred to in Articles 3 and 5 of Directive 2003/88 have been respected.42In the present case, the French Republic did not only exhaust the margin granted to it by Directive 2003/88 in relation to the maximum weekly working time, by setting it at 48 hours, but it also invoked the derogation provided for in Article 17(3) of that directive, read in conjunction with the first paragraph of Article 19 thereof, to extend to six months the reference period used for calculating the maximum average weekly working time. In those circumstances, the use of fixed reference periods does not ensure that the maximum average weekly working time of 48 hours is respected during any six-month period straddling two consecutive fixed reference periods.43In the light of the case-law referred to in paragraphs 32 and 33 of the present judgment, it must be considered that the attainment of the objective of Directive 2003/88 would be compromised if the use of fixed reference periods was not accompanied by mechanisms making it possible to ensure that the maximum average weekly working time of 48 hours is respected during each six-month period straddling two consecutive fixed reference periods.44It must also be recalled that, pursuant to the second paragraph of Article 19 of Directive 2003/88, when a Member State wishes to extend the reference period beyond six months, a collective agreement or an agreement between the two sides of industry is necessary for that purpose. In the event that a reference period referred to in the first paragraph of Article 19 of that directive is determined on a fixed basis, this may lead to a situation in which a worker may be forced to work, during a six-month period straddling two consecutive fixed reference periods, in excess of 48 hours per week on average, without a collective agreement or an agreement between the two sides of industry having been concluded for that purpose. Thus, that straddling period may lead to situations which are in actual fact possible only in the context of a reference period referred to in the second paragraph of Article 19 of that directive. Such an outcome would undermine the derogation provided for in that provision.45It is consequently for the referring court to verify whether the national legislation at issue in the main proceedings has provided for mechanisms which, as is apparent from paragraph 43 of the present judgment, make it possible to ensure that the maximum average weekly working time of 48 hours is respected during each six-month period straddling two consecutive fixed reference periods.46Moreover, it must be noted that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 22 and the case-law cited).47As regards more specifically the principle of effectiveness, the referring court must in particular examine the effectiveness of the remedies available to the workers concerned under national law in order to bring promptly to an end, where appropriate by accelerated procedures or interlocutory proceedings, any practice which does not comply with the requirements of Article 6(b) of Directive 2003/88, as correctly transposed into national law.48In the light of all of the foregoing considerations, the answer to the questions referred is that Article 6(b), Article 16(b) and the first paragraph of Article 19 of Directive 2003/88 must be interpreted as not precluding national legislation which lays down, for the purpose of calculating the average weekly working time, reference periods which start and end on fixed calendar dates, provided that that legislation contains mechanisms which make it possible to ensure that the maximum average weekly working time of 48 hours is respected during each six-month period straddling two consecutive fixed reference periods. Costs 49Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: Article 6(b), Article 16(b) and the first paragraph of Article 19 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national legislation which lays down, for the purpose of calculating the average weekly working time, reference periods which start and end on fixed calendar dates, provided that that legislation contains mechanisms which make it possible to ensure that the maximum average weekly working time of 48 hours is respected during each six-month period straddling two consecutive fixed reference periods. [Signatures]( *1 ) Language of the case: French. | 60653-fb7859e-4b7b | EN |
Advocate General Sharpston: the Court should dismiss the Czech Republic’s action against EU legislation introducing more stringent rules for the acquisition and possession of firearms | 3 December 2019 ( *1 )(Action for annulment — Approximation of laws — Directive (EU) 2017/853 — Control of the acquisition and possession of weapons — Validity — Legal basis — Article 114 TFEU — Amendment of an existing directive — Principle of proportionality — Absence of impact assessment — Interference with the right to property — Proportionality of the measures adopted — Measures creating barriers in the internal market — Principle of legal certainty — Principle of the protection of legitimate expectations — Measures obliging Member States to adopt legislation with retroactive effect — Principle of non-discrimination — Derogation for the Swiss Confederation — Discrimination affecting Member States of the European Union or Member States of the European Free Trade Association (EFTA) other than that State)In Case C‑482/17,ACTION for annulment under Article 263 TFEU, brought on 9 August 2017, Czech Republic, represented by M. Smolek, O. Serdula and J. Vláčil, acting as Agents,applicant,supported by: Hungary, represented by M.Z. Fehér, G. Koós and G. Tornyai, acting as Agents, Republic of Poland, represented by B. Majczyna, M. Wiącek and D. Lutostańska, acting as Agents,interveners,v European Parliament, represented by O. Hrstková Šolcová and R. van de Westelaken, acting as Agents, Council of the European Union, represented initially by A. Westerhof Löfflerová, E. Moro and M. Chavrier, subsequently by A. Westerhof Löfflerová and M. Chavrier, acting as Agents,defendants, French Republic, represented by A. Daly, E. de Moustier, R. Coesme and D. Colas, acting as Agents, European Commission, represented by M. Šimerdová, Y.G. Marinova and E. Kružíková, acting as Agents,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev (Rapporteur), A. Prechal, M. Vilaras, M. Safjan and I. Jarukaitis, Presidents of Chambers, T. von Danwitz, C. Toader, D. Šváby and F. Biltgen, Judges,Advocate General: E. Sharpston,Registrar: C. Strömholm, Administrator,having regard to the written procedure and further to the hearing on 5 March 2019,after hearing the Opinion of the Advocate General at the sitting on 11 April 2019,gives the following Judgment 1By its application, the Czech Republic seeks, principally, the annulment of Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017 amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons (OJ 2017 L 137, p. 22; ‘the contested directive’) or, in the alternative, the partial annulment of Article 1(6), (7) and (19) of that directive. Legal context Directive 91/477/EEC 2According to the first to fifth recitals of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (OJ 1991 L 256, p. 51):‘Whereas Article 8a of the Treaty provides that the internal market must be established not later than 31 December 1992; whereas the internal market is to comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty;Whereas, at its meeting in Fontainebleau on 25 and 26 June 1984, the European Council expressly set the objective of abolishing all police and customs formalities at intra-Community frontiers;Whereas the total abolition of controls and formalities at intra-Community frontiers entails the fulfilment of certain fundamental conditions; whereas in its white paper “Completing the internal market” the Commission stated that the abolition of controls on the safety of objects transported and on persons entails, among other things, the approximation of weapons legislation;Whereas abolition of controls on the possession of weapons at intra-Community frontiers necessitates the adoption of effective rules enabling controls to be carried out within Member States on the acquisition and possession of firearms and on their transfer to another Member State; whereas systematic controls must therefore be abolished at intra-Community frontiers;Whereas the mutual confidence in the field of the protection of the safety of persons which these rules will generate between Member States will be the greater if they are underpinned by partially harmonised legislation; it would therefore be useful to determine [categories] of firearms whose acquisition and possession by private persons are to be prohibited, or subject to authorisation, or subject to declaration.’3Part II of Annex I to Directive 91/477 provides for firearm categories A, B, C and D. Article 6 of that directive prohibits, in principle, the acquisition and possession of category A weapons, Article 7 thereof requires an authorisation for category B weapons and Article 8 thereof lays down the obligation to declare category C weapons. Article 5 of that directive defines the conditions to be met by persons wishing to acquire or possess a firearm and, under Chapter 3 of Directive 91/477, Articles 11 to 14 thereof determine the formalities required for the movement of firearms between Member States. Directive 2008/51/EC 4Directive 2008/51/EC of the European Parliament and of the Council of 21 May 2008 amending Directive 91/477 (OJ 2008 L 179, p. 5) amended the latter, in particular with a view to incorporating into EU law the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, annexed to the United Nations Convention against transnational organised crime, which was signed, on behalf of the European Community, on 16 January 2002, by the Commission, in accordance with Council Decision 2001/748/EC of 16 October 2001 (OJ 2001 L 280, p. 5).5The amendments made include the establishment of detailed requirements concerning the marking and registration of firearms in Article 4 of Directive 91/477, as amended by Directive 2008/51, and harmonisation of the rules applicable to the deactivation of firearms in the second paragraph of Part III of Annex I to that directive, as amended. Directive 2008/51 also inserted, in Article 17 of Directive 91/477, the obligation for the Commission to submit a report to the European Parliament and to the Council of the European Union, by 28 July 2015 at the latest, on the situation resulting from the application of that directive, accompanied, if appropriate, by proposals.6On that basis, the Commission adopted a communication addressed to the Council and the European Parliament on 21 October 2013, entitled ‘Firearms and the internal security of the EU: protecting citizens and disrupting illegal trafficking’ (COM(2013) 716 final), which described certain problems posed by firearms in the European Union and announced the establishment of a series of studies and consultations with stakeholders, which were to be followed, if necessary, by the presentation of a legislative proposal.7By the publication of the report from the Commission to the European Parliament and the Council of 18 November 2015, entitled ‘Evaluation of Directive [91/477], as amended by Directive [2008/51]’ (COM(2015) 751 final) (‘the REFIT evaluation’), the Commission completed its examination of the implementation of Directive 91/477 and paired it with a proposal for a directive of the European Parliament and of the Council of 18 November 2015 amending Directive 91/477 (COM(2015) 750 final), which included an explanatory memorandum and became the contested directive. The contested directive 8According to recitals 1, 2, 6, 9, 15, 20, 21, 23, 27, 33 and 36 of the contested directive:‘(1)[Directive 91/477] established an accompanying measure for the internal market. It created a balance between, on the one hand, the commitment to ensure a certain freedom of movement for some firearms and their essential components within the European Union and, on the other hand, the need to control that freedom using security guarantees suited to those products.(2)Certain aspects of [Directive 91/477] need to be further improved in a proportionate way, in order to address the misuse of firearms for criminal purposes, and considering recent terrorist acts. In this context, the Commission called in its communication of 28 April 2015 on the European Agenda on Security, for the revision of that Directive and for a common approach on the deactivation of firearms to prevent their reactivation and use by criminals.…(6)In order to increase the traceability of all firearms and essential components and to facilitate their free movement, those products should be marked with a clear, permanent and unique marking and registered in the data-filing systems of the Member States.(9)In view of the dangerous nature and durability of firearms and essential components, in order to ensure that competent authorities are able to trace firearms and essential components for the purpose of administrative and criminal proceedings and taking into account national procedural law, it is necessary that records in the data-filing systems be retained for a period of 30 years after the destruction of the firearms or essential components concerned. Access to those records and all related personal data should be restricted to competent authorities and should be permitted only up until 10 years after the destruction of the firearm or essential components concerned for the purpose of granting or withdrawing authorisations or for customs proceedings, including the possible imposition of administrative penalties, and up until 30 years after the destruction of the firearm or essential components concerned where that access is necessary for the enforcement of criminal law.(15)For the most dangerous firearms, stricter rules should be introduced into [Directive 91/477] in order to ensure that those firearms are, with some limited and duly reasoned exceptions, not allowed to be acquired, possessed or traded. Where those rules are not respected, Member States should take all appropriate measures, which might include the impounding of those firearms.(20)The risk of acoustic weapons and other types of blank-firing weapons being converted into real firearms is high. It is therefore essential to address the problem of such converted firearms being used in the commission of criminal offences, in particular by including them within the scope of [Directive 91/477]. Furthermore, to avoid the risk of alarm and signal weapons being manufactured in such a way that they are capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant, the Commission should adopt technical specifications in order to ensure that they cannot be so converted.(21)Taking into consideration the high risk of reactivating improperly deactivated firearms and in order to enhance security across the European Union, such firearms should be covered by [Directive 91/477]. …(23)Some semi-automatic firearms can be easily converted to automatic firearms, thus posing a threat to security. Even in the absence of such conversion, certain semi-automatic firearms might be very dangerous when their capacity, in terms of the number of rounds, is high. Therefore, semi-automatic firearms with a fixed loading device allowing a high number of rounds to be fired, as well as semi-automatic firearms in combination with a detachable loading device having a high capacity, should be prohibited for civilian use. The mere possibility of fitting a loading device with a capacity exceeding 10 rounds for long firearms and 20 rounds for short firearms does not determine the classification of the firearm in a specific category.(27)Where Member States have national laws regulating antique weapons, such weapons are not subject to [Directive 91/477]. However, reproductions of antique weapons do not have the same historical importance or interest attached to them and may be constructed using modern techniques which can improve their durability and accuracy. Therefore, such reproductions should be brought within the scope of Directive [91/477]. [Directive 91/477] is not applicable to other items, such as airsoft devices, which do not correspond to the definition of a firearm and are therefore not regulated by that Directive.(33)Since the objectives of this Decision cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.(36)As regards Switzerland, this Directive and [Directive 91/477] constitute a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [OJ 2008 L 53, p. 52] which fall within Article 1 of [Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ 1999 L 176, p. 31)], read in conjunction with Article 3 of [Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ 2008 L 53, p. 1)].’9According to Article 1(6) of the contested directive:‘Articles 5 and 6 are replaced by the following:“Article 5 3. Member States shall ensure that an authorisation to acquire and an authorisation to possess a firearm classified in category B shall be withdrawn if the person who was granted that authorisation is found to be in possession of a loading device apt to be fitted to centre-fire semi-automatic firearms or repeating firearms, which:(a)can hold more than 20 rounds; or(b)in the case of long firearms, can hold more than 10 rounds,unless that person has been granted an authorisation under Article 6 or an authorisation which has been confirmed, renewed or prolonged under Article 7(4a). Article 6 1. Without prejudice to Article 2(2), Member States shall take all appropriate measures to prohibit the acquisition and possession of the firearms, the essential components and the ammunition classified in category A. They shall ensure that those firearms, essential components and ammunition unlawfully held in contravention of that prohibition are impounded.2. For the protection of the security of critical infrastructure, commercial shipping, high-value convoys and sensitive premises, as well as for national defence, educational, cultural, research and historical purposes, and without prejudice to paragraph 1, the national competent authorities may grant, in individual cases, exceptionally and in a duly reasoned manner, authorisations for firearms, essential components and ammunition classified in category A where this is not contrary to public security or public order.3. Member States may choose to grant to collectors, in individual special cases, exceptionally and in a duly reasoned manner, authorisations to acquire and possess firearms, essential components and ammunition classified in category A, subject to strict conditions on security, including the demonstration to the national competent authorities that measures are in place to address any risks to public security or public order and that the firearms, essential components or ammunition concerned are stored with a level of security proportionate to the risks associated with unauthorised access to such items.Member States shall ensure that collectors authorised under the first subparagraph of this paragraph are identifiable within the data-filing systems referred to in Article 4. Such authorised collectors shall be obliged to maintain a register of all firearms in their possession classified in category A, which shall be accessible to the national competent authorities. Member States shall establish an appropriate monitoring system with respect to such authorised collectors, taking all relevant factors into account.4. Member States may authorise dealers or brokers, in their respective professional capacities, to acquire, manufacture, deactivate, repair, supply, transfer and possess firearms, essential components and ammunition classified in category A, subject to strict conditions regarding security.5. Member States may authorise museums to acquire and possess firearms, essential components and ammunition classified in category A, subject to strict conditions regarding security.6. Member States may authorise target shooters to acquire and possess semi-automatic firearms classified in point 6 or 7 of category A, subject to the following conditions:a satisfactory assessment of relevant information arising from the application of Article 5(2);provision of proof that the target shooter concerned is actively practising for or participating in shooting competitions recognised by an officially recognised shooting sports organisation of the Member State concerned or by an internationally established and officially recognised shooting sport federation; and(c)provision of a certificate from an officially recognised shooting sports organisation confirming that:(i)the target shooter is a member of a shooting club and has been regularly practising target shooting in it for at least 12 months; and(ii)the firearm in question fulfils the specifications required for a shooting discipline recognised by an internationally established and officially recognised shooting sport federation.As regards firearms classified in point 6 of category A, Member States applying a military system based on general conscription and having in place over the last 50 years a system of transfer of military firearms to persons leaving the army after fulfilling their military duties may grant to those persons, in their capacity as a target shooter, an authorisation to keep one firearm used during the mandatory military period. The relevant public authority shall transform those firearms into semi-automatic firearms and shall periodically check that the persons using such firearms do not represent a risk to public security. The provisions set out in points (a), (b) and (c) of the first subparagraph shall apply.7. Authorisations granted under this Article shall be reviewed periodically at intervals not exceeding 5 years.”’10Article 1(7) of the directive provides:‘Article 7 is amended as follows:the following paragraph is inserted:“4a. Member States may decide to confirm, renew or prolong authorisations for semi-automatic firearms classified in point 6, 7 or 8 of category A in respect of a firearm which was classified in category B, and lawfully acquired and registered, before 13 June 2017, subject to the other conditions laid down in this Directive. Furthermore, Member States may allow such firearms to be acquired by other persons authorised by Member States in accordance with this Directive, as amended by [the contested directive].”’11Article 1(13) of the contested directive provides:‘Article 12(2) is amended as follows:the third paragraph is replaced by the following:“However, this derogation shall not apply to journeys to a Member State that, pursuant to Article 8(3), either prohibits the acquisition and possession of the firearm in question or makes it subject to authorisation. In that case, an express statement to that effect shall be entered on the European firearms pass. Member States may also refuse the application of this derogation in the case of firearms classified in category A for which an authorisation has been granted under Article 6(6) or for which the authorisation has been confirmed, renewed or prolonged under Article 7(4a).”’12Article 1(19) of the contested directive amends Part II of Annex I to Directive 91/477 as follows:‘…in category A, the following points are added:“6.Automatic firearms which have been converted into semi-automatic firearms, without prejudice to Article 7(4a).7.Any of the following centre-fire semi-automatic firearms:short firearms which allow the firing of more than 21 rounds without reloading, if:a loading device with a capacity exceeding 20 rounds is part of that firearm; ora detachable loading device with a capacity exceeding 20 rounds is inserted into it;long firearms which allow the firing of more than 11 rounds without reloading, if:a loading device with a capacity exceeding 10 rounds is part of that firearm; ora detachable loading device with a capacity exceeding 10 rounds is inserted into it.8.Semi-automatic long firearms (i.e. firearms that are originally intended to be fired from the shoulder) that can be reduced to a length of less than 60 cm without losing functionality by means of a folding or telescoping stock or by a stock that can be removed without using tools.9.Any firearm in this category that has been converted to firing blanks, irritants, other active substances or pyrotechnic rounds or into a salute or acoustic weapon.”(iv)category C is replaced by the following:“Category C — Firearms and weapons subject to declaration3.Semi-automatic long firearms other than those listed in category A or B.5.Any firearm in this category that has been converted to firing blanks, irritants, other active substances or pyrotechnic rounds or into a salute or acoustic weapon.6.Firearms classified in category A or B or this category that have been deactivated in accordance with Implementing Regulation (EU) 2015/2403.…”(v)category D is deleted;…’ The interinstitutional agreement 13The Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016 (OJ 2016 L 123, p. 1; ‘the interinstitutional agreement’) refers, in points 12 to 18 thereof, to impact assessments and states, in points 12 to 15 thereof:‘12.The three Institutions agree on the positive contribution of impact assessments in improving the quality of Union legislation.Impact assessments are a tool to help the three Institutions reach well-informed decisions and not a substitute for political decisions within the democratic decision-making process. Impact assessments must not lead to undue delays in the law-making process or prejudice the co-legislators’ capacity to propose amendments.Impact assessments should cover the existence, scale and consequences of a problem and the question whether or not Union action is needed. They should map out alternative solutions and, where possible, potential short- and long-term costs and benefits, assessing the economic, environmental and social impacts in an integrated and balanced way and using both qualitative and quantitative analyses. The principles of subsidiarity and proportionality should be fully respected, as should fundamental rights. Impact assessments should also address, whenever possible, the “cost of non-Europe” and the impact on competitiveness and the administrative burdens of the different options, having particular regard to [small and medium-sized enterprises (SMEs)] (“Think Small First”), digital aspects and territorial impact. Impact assessments should be based on accurate, objective and complete information and should be proportionate as regards their scope and focus.13.The Commission will carry out impact assessments of its legislative initiatives … which are expected to have significant economic, environmental or social impacts. The initiatives included in the Commission Work Programme or in the joint declaration will, as a general rule, be accompanied by an impact assessment.In its own impact assessment process, the Commission will consult as widely as possible. The Commission’s Regulatory Scrutiny Board will carry out an objective quality check of its impact assessments. The final results of the impact assessments will be made available to the [Parliament], the Council and national parliaments, and will be made public along with the opinion(s) of the Regulatory Scrutiny Board at the time of adoption of the Commission initiative.14.The [Parliament] and the Council, upon considering Commission legislative proposals, will take full account of the Commission’s impact assessments. To that end, impact assessments shall be presented in such a way as to facilitate the consideration by the [Parliament] and the Council of the choices made by the Commission.15.The [Parliament] and the Council will, when they consider this to be appropriate and necessary for the legislative process, carry out impact assessments in relation to their substantial amendments to the Commission’s proposal. The [Parliament] and the Council will, as a general rule, take the Commission’s impact assessment as the starting point for their further work. The definition of a “substantial” amendment should be for the respective Institution to determine.’ Forms of order sought and procedure before the Court 14The Czech Republic claims that the Court should:–primarily, annul the contested directive and order the Parliament and the Council to pay the costs or,in the alternative,annul Article 1(6) of the contested directive in so far as it inserts Article 5(3) and the second subparagraph of Article 6(6) into Directive 91/477;annul Article 1(7) of the contested directive in so far as it inserts Article 7(4a) into Directive 91/477;annul Article 1(19) of the contested directive in so far as:into Part II of Annex I to Directive 91/477, it inserts points 6 to 8 of category A;in that Part II of Annex I, it amends category B;into that Part II of Annex I, it inserts point 6 of category C;it amends Part III of the same Annex I, andorder the Parliament and the Council to pay the costs.15The Parliament and, as its primary claim, the Council request the Court to dismiss the action and order the Czech Republic to pay the costs. In the alternative, should the Court annul the contested directive, the Council requests the Court to order that the directive’s effects be maintained for a sufficient period of time to allow the adoption of the necessary measures.16By decision of the President of the Court of 5 January 2018, Hungary and the Republic of Poland were granted leave to intervene in support of the form of order sought by the Czech Republic.17By decision of the President of the Court of the same day, the French Republic and the Commission were granted leave to intervene in support of the form of order sought by the Parliament and the Council.18In tandem with the bringing of the present action, the Czech Republic lodged an application for interim measures by which it requested the Court to order a stay of execution of the contested directive.19By order of 27 February 2018, Czech Republic v Parliament and Council (C‑482/17 R, not published, EU:C:2018:119), the Vice-President of the Court dismissed that application for interim measures, the Czech Republic having failed to demonstrate fulfilment of the condition of urgency, and reserved the costs relating to that procedure. The action 20In support of its claims, the Czech Republic raises four pleas in law alleging breach, for the first, of the principle of conferral of powers, for the second, of the principle of proportionality, for the third, of the principles of legal certainty and of protection of legitimate expectations and, for the fourth, of the principle of non-discrimination. First plea, alleging breach of the principle of conferral of powers Arguments of the parties 21By its first plea, the Czech Republic submits that, if Directive 91/477 pursued the aim of harmonising the disparate national rules on the acquisition and possession of firearms in order to eliminate obstacles to the internal market, that is not the case with the contested directive. It appears from the content of and the reasons for that directive that the objectives it pursues consist exclusively in ensuring a higher level of public security in relation to the terrorist threat and other forms of crime. In particular, it is apparent from the explanatory memorandum of the contested directive that the directive is justified neither by existing obstacles nor by the risk of obstacles to the functioning of the internal market, but is justified solely by the fight against the misuse of firearms for criminal or terrorist purposes.22In those circumstances, the Czech Republic is of the view that Article 114 TFEU cannot constitute an appropriate legal basis for the adoption of the contested directive. It follows from the case-law of the Court that the approximation of the laws of the Member States relating to the free movement of goods must be the main objective of the EU legislation adopted on the basis of that article, any other objectives needing only to be ancillary. Prohibiting the possession of certain semi-automatic firearms and their magazines, which is the main novelty of the contested directive, has no link, however, with the isolated shortcomings in the functioning of the internal market identified by the Commission.23Moreover, there is currently no legal basis in the Treaties for the adoption of such a prohibition. Indeed, in the field of prevention of crime and terrorism, harmonisation is specifically excluded by Article 84 TFEU. That echoes Article 4(2) TEU, pursuant to which Member States are solely responsible for national security in their territory and must have the possibility of maintaining law and order in that territory. In adopting the contested directive, therefore, the EU legislature exceeded its powers and infringed Article 5(2) TEU.24The Czech Republic emphasises that it does not question the right of the EU legislature to amend directives currently in force. Amendments to them should nevertheless be adopted on a legal basis consistent with their objectives and within the limits of the European Union’s powers, excluding measures that could not have been contained in the original text, which do not have their own legal basis and which go beyond the Union’s powers.25Hungary supports the Czech Republic’s argument and adds that, if it is appropriate, in order to determine the legal basis for amending legislation, to examine as a whole the act in which the legislation in question is incorporated, it does not follow that the legal basis of the amending act must be established having regard only to the purposes and content of the amended act. That would allow the EU legislature to derogate from the procedural rules laid down by the Treaties, such as qualified majority or unanimous voting, and, as in the case at hand, circumvent the principle of conferral of powers.26In the present case, even if it were accepted that, in view of the original objectives of Directive 91/477, the purpose of the contested directive is not entirely irrelevant to the objectives pursued by Article 114 TFEU, those objectives would be, as regards the contested directive, at most ancillary to the main objective of the amendments contained therein, namely, the prevention of crime. Consequently, Article 114 TFEU cannot serve as the legal basis for that directive.27The Republic of Poland also supports the Czech Republic’s argument and adds that the very essence of the principle of conferral is called into question when an amendment to an EU act is adopted on the legal basis originally used for the adoption of such an act, irrespective of the objective and content of the amendment thus made.28In addition, the Republic of Poland argues that only ammunition — and not firearms — constitutes dangerous goods under EU law, meaning that no argument can be drawn from the supposedly dangerous nature of firearms to justify measures consisting in prohibiting the marketing of certain firearms or in harmonising their conditions of acquisition, possession and movement within the internal market.29Moreover, prohibiting the marketing of specific categories of firearms does not facilitate the functioning of the internal market. On the contrary, the contested directive creates new obstacles to that functioning, in so far as it has failed to harmonise the date from which firearms are considered to be antiques and has introduced not only new ambiguous definitions, but also rules including elements capable of leading to a different transposition into the national law of the Member States.30The Parliament and the Council, supported by the French Republic and the Commission, dispute the arguments of the Czech Republic as well as those put forward in support of it by Hungary and the Republic of Poland. Findings of the Court 31It must be recalled, as a preliminary point, that the settled case-law of the Court holds that the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure. If examination of the measure concerned reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component (judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 41 and the case-law cited).32Moreover, it follows from the case-law of the Court that, to determine the appropriate legal basis, the legal framework within which new rules are situated may be taken into account, in particular in so far as that framework is capable of shedding light on the purpose of those rules (judgment of 3 September 2009, Parliament v Council, C‑166/07, EU:C:2009:499, paragraph 52).33Article 114(1) TFEU establishes that the Parliament and the Council are to adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.34As regards the conditions for the application of that provision, it is settled case-law that, while a mere finding of disparities between national rules is not sufficient to justify recourse to Article 114 TFEU, it is otherwise where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 32 and the case-law cited).35In addition, although recourse to Article 114 TFEU as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade as a result of divergences in national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 33 and the case-law cited).36The Court has also held that, provided that the conditions for recourse to Article 114 TFEU as a legal basis are fulfilled, the EU legislature cannot be prevented from relying on that legal basis on the ground that the safeguarding of general interests referred to in paragraph 3 of that article, which include safety, is a decisive factor in the choices to be made (see, to that effect, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 34 and the case-law cited).37It follows from the foregoing that when there are obstacles to trade, or it is likely that such obstacles will emerge in the future, because the Member States have taken, or are about to take, divergent measures with respect to a product or a class of products that are such as to bring about different levels of protection and thereby to prevent the product or products concerned from moving freely within the European Union, Article 114 TFEU authorises the EU legislature to intervene by adopting appropriate measures, in compliance with Article 114(3) TFEU and with the legal principles mentioned in the FEU Treaty or identified in the case-law, in particular the principle of proportionality (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 36 and the case-law cited).38Furthermore, it follows from settled case-law that, where an act based on Article 114 TFEU has already removed any obstacle to trade in the area that it harmonises, the EU legislature cannot be denied the possibility of adapting that act to any change in circumstances or development of knowledge having regard to its task of safeguarding the general interests recognised by the Treaty (judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 34 and the case-law cited).39In such a situation, the EU legislature can properly carry out its task of safeguarding the general interests recognised by the Treaty only if it has the freedom to amend the relevant EU legislation so as to take account of such changes (see, to that effect, judgment of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 77).40It is apparent from the case-law of the Court, however, that the fight against international terrorism in order to maintain international peace and security constitutes an objective of general interest. The same is true of the fight against serious crime in order to ensure public security (judgment of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 42 and the case-law cited).41In the case at hand, while the Czech Republic, supported by Hungary and the Republic of Poland, claims, in essence, that the legal basis of the contested directive must be identified by examining that directive in isolation, the Parliament and the Council, supported on this point by the French Republic, argue that that examination must be carried out by taking into account, in particular, Directive 91/477, which the contested directive seeks to amend.42In that respect, it should be noted, first, that it follows inter alia from the case-law referred to in paragraphs 32, 38 and 39 of the present judgment that, in the case of an act amending existing rules, it is important to take into account also, for the purposes of identifying its legal basis, the existing rules which it amends and, in particular, their objective and content.43Since the contested directive is a directive that amends Directive 91/477, in particular by inserting new provisions, the latter forms the legal framework of the contested directive. That is demonstrated, in particular, by recitals 1 and 2 of the contested directive, which refer to the balance created by Directive 91/477 between, on the one hand, the commitment to ensure a certain freedom of movement for some firearms and their essential components within the European Union and, on the other hand, the need to control that freedom using security guarantees suited to those products, as well as the need to adjust that balance, in order to address the misuse of such firearms for criminal purposes and considering ‘recent terrorist acts’.44Second, the approach advocated by the Czech Republic, supported by Hungary and the Republic of Poland, could lead to a paradoxical result, namely that, whereas the amending act could not be adopted on the basis of Article 114 TFEU, it would nevertheless be possible for the EU legislature to achieve the same normative result by repealing the initial act and fully recasting it into a new act, adopted on the basis of that provision.45It follows that, contrary to what those Member States claim and as the Parliament and the Council rightly argue, it is necessary to identify, in this case, the legal basis on which the contested directive had to be adopted by taking into account, in particular, both the context constituted by Directive 91/477 and the rules stemming from the amendments made to it by the contested directive.46In the first place, as far as Directive 91/477 is concerned, it is apparent from its second to fourth recitals that it was adopted in order to establish the internal market and that, in that context, the abolition of controls on the safety of objects transported and of those on persons entailed, among other things, the approximation of legislation by means of effective rules on firearms designed to establish controls, within Member States, on their acquisition, possession and transfer. According to the fifth recital of that directive, such rules generate greater mutual confidence between Member States in the field of the protection of the safety of persons (judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 43).47As regards the content of Directive 91/477, it establishes a harmonised minimum framework for the possession and acquisition of firearms and their transfer between Member States. To that end, that directive lays down provisions concerning the conditions subject to which various categories of firearms may be acquired and held, while laying down, on the basis of requirements of public safety, that the acquisition of certain types of firearm must be prohibited. In addition, that directive contains rules intended to harmonise the Member States’ administrative measures relating to the movement of firearms for civilian use, the basic principle being that the movement of weapons is prohibited, unless the procedures laid down by the same directive for that purpose are followed (see, to that effect, judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraphs 49 to 51).48Thus, the Court has found that Directive 91/477 is a measure intended to ensure, as regards the free movement of goods, namely of firearms for civilian use, approximation of the laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees suited to the nature of those goods (judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 52).49In the second place, as regards the purpose of the contested directive, first of all, it is apparent from recital 2 of that directive that it aims to improve further certain aspects of Directive 91/477 and to adjust the balance between the free movement of the goods in question and security guarantees, in particular considering ‘recent terrorist acts’. While it follows in particular from recitals 9, 15, 20, 21 and 23 of the contested directive — which concern, inter alia, the most dangerous, deactivated and semi-automatic firearms — that security concerns associated with those different types of firearms led the EU legislature to lay down stricter rules for them, the fact remains that it also intended, by adopting that directive, to facilitate the free movement of certain weapons, as is attested by recital 6 of that directive in particular, which concerns the marking of firearms and their essential components.50Next, regarding the content of the contested directive, it should be noted that Article 1(1) of the directive contains precise definitions, particularly of the persons, objects and activities that are subject to the new rules. Paragraph 3 of that article establishes a new system for marking firearms and their essential components, regulates the activity of dealers and brokers and specifies the data to be filed in the Member States’ databases, their storage and their accessibility. Paragraph 6 of that article sets out the conditions under which authorisations to acquire and possess firearms are granted and are to be withdrawn, contains rules on the supervision of firearms in order to minimise the risk of their being accessed by unauthorised persons, prohibits the acquisition and possession of category A firearms and specifies the derogations from that prohibition. Paragraph 7 of the same article imposes regular monitoring of authorisations for possession of firearms and provides for the possibility for Member States to grant another derogation from the prohibition on the possession of category A firearms. Article 1(8) of the contested directive recalls that Member States may prohibit the acquisition or possession of firearms in categories B and C. Paragraph 9 of that article subjects ammunition and certain loading devices to the same rules as those applicable to the acquisition and possession of the firearms for which they are intended. Paragraph 10 of that article regulates alarm, signal and deactivated weapons. Paragraph 12 of that article prohibits, in principle, the transfer of firearms from one Member State to another and paragraph 13 thereof lays down the derogations applicable to such transfer. Article 1(14) of the contested directive concerns the exchange of information between Member States and paragraph 19 of that article amends Annex I to Directive 91/477 by listing the classification of weapons in categories A to C.51The contested directive, therefore, like Directive 91/477, contains provisions relating to the possession and acquisition of firearms and their transfer between Member States. In particular, those provisions govern the acquisition and possession of firearms by individuals by providing, inter alia, that certain of those weapons are prohibited, whereas others are subject to authorisation or declaration. They also harmonise the administrative measures taken by the Member States relating to the movement of firearms for civilian use.52Last, it is apparent from a number of documents used in the preparation of the contested directive and brought to the attention of the Court that, in adopting that directive, the EU legislature was indeed seeking to ensure, within a changed security framework, the security of EU citizens while facilitating the functioning of the internal market in firearms by providing solutions to identified problems. In particular, the REFIT evaluation highlighted that the proper functioning of the internal market in firearms for civilian use was undermined by normative disparities between the Member States in the classification of firearms in categories C and D and by disparities in the application of the provisions on the European firearms pass.53In so adjusting the balance between the free movement of goods and security guarantees, however, the EU legislature merely adapted the rules on the possession and acquisition of firearms set out in Directive 91/477 to changes in circumstances.54First, as the Parliament and the Council rightly submit, in adopting the contested directive, the EU legislature has continued to pursue, in the context of risk developments in the area of security, the stated objective of the fifth recital of Directive 91/477 of reinforcing mutual confidence between Member States in the field of the protection of the safety of persons by determining, to that end, categories of firearms whose acquisition and possession by private persons are prohibited or subject to authorisation or declaration, respectively, an objective which in turn aims to ensure the proper functioning of the internal market.55In that respect, it is not disputed that circumstances have evolved significantly since the adoption of Directive 91/477, given, first of all, that the European Union has been enlarged on several occasions, next, that the Schengen area has been established and extended to cover a significant part of the Union and, last, that terrorist threats and cross-border crime have increased.56It follows from the case-law cited in paragraphs 38 to 40 of this judgment, however, that the EU legislature cannot be denied the possibility of adapting, on the basis of Article 114 TFEU, an act such as Directive 91/477 to any change in circumstances or development of knowledge having regard to its task of safeguarding the general interests recognised by the Treaties, including the maintenance of public security.57Second, as the Advocate General noted in points 46 and 47 of her Opinion, harmonisation of aspects relating to the safety of goods is one of the essential elements for the proper functioning of the internal market, disparate rules in that area being such as to create obstacles to trade. Given that the specificity of firearms resides, contrary to what the Republic of Poland claims, in the danger that they pose not only to users but also to the public at large, as the Court found in paragraph 54 of the judgment of 23 January 2018, Buhagiar and Others (C‑267/16, EU:C:2018:26), public safety considerations are, as the fifth recital of Directive 91/477 recalls, essential in the context of rules on the acquisition and possession of those goods.58Third, it is by no means established, in the light of the elements of the file submitted to the Court, that the EU legislature would have breached the legal basis constituted by Article 114 TFEU and, therefore, would have exceeded the limits of the powers conferred on the Union, if it had, instead of adopting the contested directive, recast Directive 91/477 incorporating, by that alternative legislative means, the amendments made by the contested directive.59On the contrary, it is apparent from those same elements that the measure resulting from the amendments made to Directive 91/477 by the contested directive includes rules governing the internal market in firearms for civilian use that are adapted to the particular features of those goods and that continue to ensure, in line with what the Court found in paragraph 52 of its judgment of 23 January 2018, Buhagiar and Others (C‑267/16, EU:C:2018:26), as regards the free movement of goods, approximation of the laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees that are suited to the nature of the goods at issue.60In the third place, to the extent that the Republic of Poland submits that the prohibition on the marketing of certain categories of firearms does not facilitate the functioning of the internal market and that the contested directive gives rise to new obstacles to the free movement of firearms for civilian use, first, it should be recalled that, by using the words ‘measures for the approximation’ in Article 114 TFEU, the authors of the Treaty intended to confer on the EU legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 37 and the case-law cited).61Depending on the circumstances, those measures may consist in requiring all the Member States to authorise the marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even provisionally or definitively prohibiting the marketing of a product or products (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 38 and the case-law cited).62In the present case, however, in the light of the factors set out in paragraphs 54 to 57 of the present judgment, it does not appear that the EU legislature exceeded the margin of discretion conferred on it by the legal basis of Article 114 TFEU as regards the method of approximation, when it adopted, in order to ensure the maintenance of a limited degree of free movement of firearms for civilian use within the internal market, the measures consisting in adding certain semi-automatic firearms to category A — those firearms that are prohibited by Directive 91/477 — and in introducing the other provisions that, in the Republic of Poland’s view, give rise to new obstacles.63Second, to the extent that that line of argument is aimed at disputing the fact that the measures criticised are appropriate for achieving the objectives of Article 114 TFEU, it should be pointed out that such a line of argument converges with that put forward by the Czech Republic in support of the second part of its second plea, so it is appropriate to assess them together under that part.64In the light of all of the foregoing considerations, the first plea must be dismissed as unfounded. Second plea, alleging breach of the principle of proportionality First part of the second plea, relating to the EU legislature’s examination of the proportionality of certain of the provisions of the contested directive – Arguments of the parties 65By the first part of its second plea, the Czech Republic claims that the EU legislature adopted the contested directive even though it clearly did not have sufficient information on the potential impact of the measures adopted. It therefore could not fulfil its obligation to investigate whether those measures complied with the principle of proportionality.66First of all, neither the formal finding in recital 33 of the contested directive nor the corresponding passages in the explanatory memorandum contain a sufficiently specific consideration on the proportionality of certain provisions of that directive.67Next, the Commission is required to carry out an impact assessment of the proposed rules in all cases where a significant impact on the rights and obligations of persons is to be expected. Carrying out an impact assessment of the proposed rules is thus an obligation laid down in the interinstitutional agreement. In particular, the second paragraph of point 12 of that agreement cannot be interpreted as authorising the Commission to abandon the carrying out of an impact assessment as soon as it considers it opportune, but should be understood as requesting the Commission to ensure that an impact assessment does not lead to a delay in the legislative process.68The contested directive’s adoption, however, was not preceded by any impact assessment, even though it has a significant impact in all Member States, particularly on citizens’ property rights. In particular, the REFIT evaluation cannot be regarded as a substitute for such an assessment, given that it does not concern the impact of the new measures adopted.69In addition, the Czech Republic’s experience raises doubts as to whether the measures adopted are appropriate for achieving the objective of combating the misuse of firearms, given that, in that Member State and over the last 10 years, only a single offence — which was moreover unintentional — has been committed with a weapon now falling within category A, the marketing and possession of which are in principle prohibited.70Similarly, regarding the possibility of converting semi-automatic firearms into automatic firearms, the REFIT evaluation itself found that no case of misuse of such converted firearms for criminal purposes has been identified. In addition, the conversions mentioned therein were carried out either using accessories not regulated by the contested directive or by installing the essential components of automatic firearms already prohibited by Directive 91/477 before its amendment by the contested directive.71Last, while the Czech Republic is able to accept that an assessment of the potential impact of the measures adopted can be carried out other than by means of a formal impact assessment, the EU legislature cannot completely abandon it. Nor did it have, in this case, sufficient information from other sources to enable it to assess the proportionality of certain of the measures introduced by the contested directive, none of the studies cited to that end by the defendant institutions and by the Commission concerning the impact of those measures.72Those measures include the prohibition of semi-automatic firearms covered by points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, in view of the absence of information on the rate of use in crime of weapons covered by those points and lawfully held as a proportion of the number of non-problematic owners who are subject to that prohibition. The EU legislature also banned certain loading devices for semi-automatic firearms, even though there is no evidence that that measure is appropriate for achieving the objective pursued.73In addition, it tightened the rules applicable to other types of firearms, including replicas of antique firearms, without having at its disposal data on the risk of those weapons being used in activities related to terrorism and serious crime or having assessed that risk against the impact of such tightening on the rights of non-problematic owners.74Hungary supports the Czech Republic’s argument and adds that, pursuant to the second sentence of the first paragraph of point 13 of the interinstitutional agreement, an impact assessment must in principle accompany the initiatives included in the Commission’s Work Programme. Consequently, the Commission acted against that provision by presenting its proposal for a directive without carrying out an impact assessment and by not subsequently remedying it. Moreover, no impact assessment was carried out by the defendant parties in the later stages of the legislative process, either. Consequently, and also taking into account the fact that neither the REFIT evaluation nor the other studies cited contain such assessments, the EU legislature did not have sufficient information to examine the proportionality of the measures contained in the contested directive.75The Parliament and the Council, supported by the Commission, dispute the argument of the Czech Republic as well as that put forward in support of it by Hungary.– Findings of the Court 76According to settled case-law, the principle of proportionality is one of the general principles of EU law and requires that the means employed by EU law provisions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 51 and the case-law cited).77With regard to judicial review of compliance with those conditions, the Court has accepted that in the exercise of the powers conferred on it the EU legislature must be allowed a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Thus, the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 52 and the case-law cited).78Further, the EU legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts (judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 151 and the case-law cited).79Even where it has broad discretion, the EU legislature must base its choice on objective criteria and examine whether the aims pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators. Under Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and the FEU Treaty, draft legislative acts must take account of the need for any burden falling upon economic operators to be minimised and commensurate with the objective to be achieved (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraphs 97 and 98).80Moreover, the Court has consistently held that the legality of an EU act must be assessed in the light of the information available to the EU legislature at the time of the adoption of the rules in question (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 221).81Furthermore, even judicial review of limited scope requires that the EU institutions that have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended (judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 152 and 153 and the case-law cited).82In the case at hand, it is appropriate, in the first place, to find, as the Advocate General did in points 94 to 97 of her Opinion, that the obligation to carry out an impact assessment in every circumstance does not follow — contrary to what the Czech Republic, supported by Hungary, claims — from the wording of points 12 to 15 of the interinstitutional agreement.83Those points show, first, that the Parliament, the Council and the Commission recognise the contribution of impact assessments in improving the quality of EU legislation and that those assessments are a tool to help the three institutions concerned reach well-informed decisions. Second, those points stipulate that impact assessments must not lead to undue delays in the law-making process or prejudice the co-legislators’ capacity to propose amendments, for which it is moreover provided that additional impact assessments may be carried out when the Parliament and the Council consider it to be appropriate and necessary. Third, those same points note that the Commission will carry out impact assessments of its legislative initiatives which are expected to have significant economic, environmental or social implications. Fourth, it is stated that the Parliament and the Council, when examining the Commission’s legislative proposals, are to take full account of the Commission’s impact assessments.84It follows that the preparation of impact assessments is a step in the legislative process that, as a rule, must take place if a legislative initiative is liable to have such implications.85Not carrying out an impact assessment cannot be regarded as a breach of the principle of proportionality where the EU legislature is in a particular situation requiring it to be dispensed with and has sufficient information enabling it to assess the proportionality of an adopted measure.86In that regard and in the second place, in order to exercise their discretion properly, co-legislators must take into account, during the legislative procedure, the available scientific data and other findings that became available, including scientific documents used by the Member States during Council meetings that the Council itself does not have (see, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraphs 160 to 163).87As regards the information available when the Commission prepared its legislative initiative leading to the adoption of the contested directive, that institution indicated that it had taken into account, first of all, a comprehensive study on the functioning of the system instituted by Directive 91/477, entitled ‘Evaluation of the Firearms Directive’ and dated December 2014, and the REFIT evaluation, which highlighted stark differences between the Member States in the application of that directive, particularly in terms of the classification of firearms, suggested defining uniform criteria for alarm or acoustic weapons to prevent them from being converted into functioning firearms, proposed harmonising the rules on the deactivation of firearms, underlined that, in the majority of Member States, it was not possible to trace the original owner of a firearm, proposed adapting the rules on the marking of firearms and improving the functioning of the exchange of information between Member States or introducing provisions governing the activities of brokers, highlighted concerns about the possible conversion of semi-automatic firearms into automatic firearms and made recommendations on areas in which the functioning of the internal market in civilian firearms should be improved.88Next, that institution relied on nine studies, on improving the rules on the deactivation of firearms and authorisation procedures in the European Union, on alarm weapons and replicas, on possible options for combating the trafficking of firearms within the European Union, on homicides, the latter study having been prepared by the United Nations Office on Drugs and Crime, on the relationship between violent deaths and the accessibility of firearms, on the impact of control of the acquisition and possession of firearms on deaths caused by them, on the rules applicable to the deactivation of firearms, to the conversion of them, to alarm weapons and antique firearms as well as on the firearms used in mass shootings in Europe.89Those studies highlighted in particular, taking into account the security context, the increased risk that deactivated firearms might be converted into functioning firearms and the problems of identifying the owners of those firearms, indicated that the marking and deactivation of firearms had not been harmonised by Directive 91/477 and, therefore, proposed a revision of that directive with a view to harmonising the rules on marking firearms and strengthening the authorisation rules for the acquisition and possession of firearms, suggested introducing rules applicable to deactivated firearms, indicated the need to establish technical standards for the conversion of alarm and acoustic weapons and replicas, deemed it necessary to improve the collection of data on the production, acquisition and possession of firearms and on deactivated firearms, alarm weapons and replicas, recommended improvements to the rules applicable to the deactivation of firearms, to their conversion and to alarm and antique weapons, mentioned the need to regulate the activities of arms dealers and brokers, found a correlation between the quantities of handguns held in a State, on the one hand, and the rate of crimes involving firearms, on the other, indicated that the introduction of more restrictive rules on access to firearms was likely to reduce significantly both the number of crimes committed and the number of homicides involving firearms, noted that virtually all the firearms used in mass shootings in Europe were held lawfully, indicated that those weapons were automatic, semi-automatic or reactivated firearms or firearms composed of parts of different weapons and recommended inter alia limiting lawful access to such firearms.90Last, the Commission relied on information obtained in a public consultation, in particular the consultation with the authorities of the Member States, dealers, weapons experts, representatives of European associations of manufacturers of firearms and ammunition for civilian use, marksmen, collectors, non-profit organisations and research organisations. It also referred to the information obtained in the consultation with the Member States and the States of the European Economic Area and in the context of the work of the committee established by Directive 91/477, the Commission having invited Member States’ experts to formulate opinions and observations on the main conclusions contained in the REFIT evaluation.91As regards the data collected during the legislative procedure, the Parliament makes reference to consultations with stakeholders, to visits to a museum that collects weapons, to a public hearing, to technical and statistical data requested from the Commission and to a conference on Directive 91/477.92Last, the Council stated that it carried out its work on the basis of the Commission’s proposal and the studies referred to by that institution, of consultations with Members of the Parliament and of impact assessments of the measures presented by Member States.93The elements referred to in paragraphs 87 to 92 of the present judgment thus enable the Court to hold that, during the legislative procedure that led to the adoption of the contested directive, first of all, the three institutions concerned had at their disposal detailed analyses of the functioning of the internal market in firearms for civilian use, as followed from Directive 91/477 before its amendment by the contested directive, including specific recommendations to improve that functioning. Next, they benefited from numerous analyses and recommendations covering inter alia all the security issues raised in the Czech Republic’s arguments, as summarised in paragraphs 69 to 73 of the present judgment, taking into account experience acquired, in particular, in relation to the dangerous nature of certain firearms in the security context assessed. Last, those three institutions supplemented those data with consultations with experts and with stakeholder representatives and with assessments by Member State authorities.94In the light of the foregoing considerations, the first part of the second plea must be dismissed as unfounded. Second part of the second plea, relating to the proportionality of certain of the provisions of the contested directive – Arguments of the parties 95By the second part of its second plea, the Czech Republic considers, primarily, that, in the first place, the measures taken by the contested directive are not appropriate for attaining the objective of ensuring a higher level of public security, which cannot be achieved by means of an additional restriction on the legal possession of firearms. On the contrary, a real risk to public security is caused by lawfully held firearms becoming unlawful due to the tightening of the applicable rules.96In particular, as regards the prohibition of certain semi-automatic firearms, no terrorist attack has been committed in EU territory in the last 10 years using such lawfully held weapons nor does any existing study indicate that those weapons have been used in mass shootings. The prohibition of semi-automatic firearms permanently converted from automatic firearms, referred to in point 6 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, makes no sense from a technical point of view, either, since converting them into automatic firearms is more difficult and more costly than acquiring a new ordinary semi-automatic firearm and then converting it into an automatic firearm.97Similarly, there is virtually no risk of irreversibly deactivated firearms and replicas of old firearms being misused, since reactivating such weapons requires the use of professional tools and is at least as complex and costly as manufacturing a new weapon. The fact that irreversibly deactivated firearms will fall into the same category as the same type of functioning weapons reflects the disproportionate nature of that measure.98In the second place, the Czech Republic takes the view that the measures taken by the contested directive are not necessary to achieve the objective of ensuring a higher level of public safety and security. Prohibiting the possession of the semi-automatic firearms classified in points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, is the strictest possible measure and concerns all current and potential holders of such weapons, despite there being no risk of them committing a criminal offence. Tightening the rules for other types of firearms, including replicas of antique firearms, is not necessary, either, given the minimal danger associated with those weapons.99There therefore exist less restrictive measures, including systematically tackling the unlawful possession of firearms, strengthening cooperation in the investigation of serious criminal offences, improving the exchange of information between Member States and tightening the rules for alarm weapons and similar weapons.100In the third place, the Czech Republic submits that the measures taken in the contested directive are contrary to the principle of proportionality stricto sensu. Those measures have a major impact on the property rights of a large number of non-problematic firearm owners and the EU legislature has in no way mitigated — or even examined — that impact.101In the alternative, to the extent that the contested directive must be regarded as pursuing the aim of eliminating obstacles to the proper functioning of the internal market, the Czech Republic submits, by the second part of its second plea, that the measures taken by that directive do not comply with the conditions of appropriateness, necessity and proportionality stricto sensu, either. Those measures, which lay down ambiguous rules that are impossible to implement in practice, are not appropriate for eliminating those obstacles.102First of all, point 7 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, now includes semi-automatic firearms fitted with a loading device exceeding the prescribed limits. In accordance with Article 6(1) of Directive 91/477, as amended by the contested directive, Member States are thus required to seize those weapons. Recital 23 of the contested directive, however, states that the possibility of fitting such a loading device does not determine the classification of the weapons in question. Thus, the same weapon would, depending on the case, be a weapon falling under category A or under category B, the transfer from one category to another being possible by changing the loading device. At the same time, the possession of such a loading device is penalised, in accordance with Article 5(3) of Directive 91/477, as amended by the contested directive, by withdrawing the authorisation to acquire and possess category B firearms, which differs from the penalty prescribed in Article 6(1) of that same directive.103Second, the Czech Republic notes that it is without specifying how they must be identified that the contested directive now classifies, in point 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, semi-automatic firearms originally intended to be fired from the shoulder that can be reduced to a length of less than 60 centimetres without losing functionality by means of a folding or telescoping stock. Almost all those weapons, however, are designed to work with or without such stocks, such that there is no way to identify what they were originally designed for. Nor is it be specified how to establish the length of those weapons, in particular with or without the muzzle attachments or the various extensions. Under those conditions, screwing in a compensator or a silencer can result in a change of category.104Last, as regards the transfer of certain firearms to category A, namely, prohibited firearms, the contested directive authorises Member States to choose a different approach in respect of the current holders of those weapons, which means that, in some Member States, there will always be a large number of authorised holders, while, in others, possession of such weapons will be prohibited. That situation, however, creates new obstacles that cannot be overcome by the European firearms pass. The third subparagraph of Article 12(2) of Directive 91/477, as amended by the contested directive, makes the possibility of travelling with those weapons dependent on the decision of the other Member States, which can now refuse to apply the derogation provided for in the first subparagraph of that Article 12(2) and make travel subject to the grant of prior authorisation.105So far as concerns the necessity and the proportionality stricto sensu of the measures taken by the contested directive, the Czech Republic refers to the argument summarised in paragraphs 98 to 100 of the present judgment. It also considers that annulment of the contested provisions of that directive must entail annulment of the directive as a whole.106Hungary doubts, first, the proportionality of the marking of the various parts of firearms, which could cause major disruptions during airport checks.107Second, in the context of the extension of expiring authorisations, that Member State deems the obligation to review all conditions for their issue contrary to the objectives pursued.108Third, Hungary considers it unjustified that deactivated firearms acquired or held lawfully before the end of the transposition period of the contested directive, even in the absence of an official authorisation, are classified in the category of firearms that require an authorisation. Strengthening the rules in no way alters the lack of danger of those weapons, meaning that the new rules place the holders of those weapons under new obligations, without justification by any overriding reason.109Fourth, Hungary argues that the length of the mandatory retention period for data contained in the official firearms registers of the Member States, from the date of the destruction of those data, constitutes a disproportionate interference with the right to protection of personal data, as guaranteed by Article 16 TFEU and Article 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’).110The Republic of Poland considers, first, that, given that there has been no evidence that automatic firearms converted into lawfully held semi-automatic firearms have been used for criminal purposes in EU territory, prohibiting such weapons from being held does not enhance the safety or security of EU citizens.111Second, prohibiting centre-fire semi-automatic firearms, when they are fitted with a loading device with a capacity exceeding prescribed limits, is also inappropriate for ensuring the safety and security of EU citizens. First of all, those loading devices not being linked to a specific weapon, it is impossible to prove that such a device is part of such a firearm, that it belongs to the person who holds that weapon or that a person is holding a weapon in accordance with the authorisation issued. Next, the said capacity has no significant impact either on the rate of fire or the number of rounds that can be fired. Last, the prohibition disproportionately affects persons in possession of category B firearms, even when they do not have the possibility of fitting their weapons with such loading devices.112Third, on account of the considerations already set out in paragraphs 97 and 103 of the present judgment, the Republic of Poland considers that there is no link between, on the one hand, the classification in points 6 and 7 of category C of Part II of Annex I to Directive 91/477, as amended by the contested directive, deactivated firearms and reproductions of antique firearms and the prohibition of the firearms defined in point 8 of category A of Part II of that annex and, on the other hand, the guarantee of a high level of safety and security for EU citizens.113Fourth, the Republic of Poland submits that the classification of firearms referred to in paragraphs 110 to 112 of the present judgment is disproportionate stricto sensu, since there are more effective and less restrictive preventive measures to enhance public safety and security, such as mandatory and uniform psychiatric and psychological examinations for the purchasers and holders of firearms and examinations on the rules on using such weapons and on the regulations concerning their possession and use.114The Parliament and the Council, supported by the Commission, dispute the arguments of the Czech Republic as well as those put forward in support of it by Hungary and the Republic of Poland.115In particular, the Parliament and the Council argue that the argument of Hungary alleging breach of Article 16 TFEU and Article 8 of the Charter is inadmissible, since it constitutes a new plea. The same applies to the arguments of both Hungary and the Republic of Poland by which those Member States call into question the proportionality of provisions of the contested directive, which the Czech Republic does not dispute.116In the first place, it should be recalled that a party which, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (judgment of 7 October 2014, Germany v Council, C‑399/12, EU:C:2014:2258, paragraph 27).117Since the argument of Hungary summarised in paragraphs 106, 107 and 109 of the present judgment, as the Parliament and the Council rightly submit, calls into question the proportionality of provisions of the contested directive other than those disputed by the Czech Republic, that argument must be considered to be such as to alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by that latter Member State and must therefore be rejected as inadmissible.118In the second place, as regards the subject matter of the judicial review to be carried out by the Court, it is important to note that it follows from the case-law cited in paragraphs 77 to 79 of the present judgment that it is not for the Court to substitute its own assessment for that of the EU legislature.119Under that case-law, it is for the Court to determine whether the EU legislature manifestly exceeded its broad discretion with regard to the complex assessments and evaluations it was called upon to conduct in the present case, by opting for measures that were manifestly inappropriate with regard to the objective pursued.120In the third place, with regard to the proportionality of the prohibition of the semi-automatic firearms classified in points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, first, as the Parliament and the Council, supported by the Commission, argue, it appears in particular from the studies referred to in paragraphs 88 and 89 of the present judgment that a correlation can be found between the numbers of firearms held in a State, on the one hand, and the rate of crime involving such weapons, on the other hand, that the introduction of rules limiting access to firearms is liable to have a significant impact on reducing both the number of crimes committed and the number of homicides involving firearms, that virtually all the firearms used in mass shootings in Europe were held lawfully and that those weapons were automatic, semi-automatic or reactivated firearms or firearms composed of parts from different weapons.121Moreover, while it is true that some of those studies also recommend the measures referred to by the Czech Republic and, in support of that State, by the Republic of Poland, as summarised in paragraphs 99 and 113 of the present judgment, those measures are, as the Parliament has noted, recommended in those studies as a supplement to the tightening of the regime for the acquisition and possession of firearms — particularly the most dangerous of them — and not as alternatives of equal effectiveness to the prohibition of the firearms concerned.122Second, the prohibition of the firearms classified in points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, is accompanied, as submitted by the Parliament and the Council, supported by the Commission, by the multiple exceptions and derogations referred to in Article 6(2) to (6) of Directive 91/477, as amended by the contested directive, which reduce the impact of that prohibition on a large number of potential holders or purchasers of those weapons and thus aim to guarantee the proportionality of that prohibition.123Third, with regard to the definition of the firearms classified in points 7 and 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, those points, as the Parliament and the Council, supported by the Commission, maintain, clearly identify prohibited firearms according to either the capacity of the inserted loading device or the length of the weapon. In particular, nothing stands in the way of the interpretation proposed by those institutions, namely, that weapons built to allow both shoulder fire and freehanded fire must be regarded as having been originally designed for shoulder fire, such that they fall within point 8 of that category A.124Similarly, with regard to recital 23 of the contested directive and Article 5(3) and Article 6(1) of Directive 91/477, as amended by the contested directive, first, it is clear that, as the Parliament and the Council have noted, it is in order to prevent attempts to circumvent the classification of certain firearms in the various categories that that Article 5(3) prohibits, in essence, the possession of both a semi-automatic firearm falling under category B of Part II of Annex I to Directive 91/477, as amended by the contested directive, and a loading device exceeding the limits prescribed in point 7 of category A of Part II of that annex. Second, that recital 23 and that Article 6(1), respectively, merely provide an explanation for the classification in question and impose the prohibition at issue.125Fourth, given that the Member States were already able to prohibit firearms falling, inter alia, under categories B and C of Part II of Annex I to Directive 91/477, before the contested directive classified those weapons in category A, the three institutions concerned are right to maintain that the provisions relating to the European firearms pass and Article 12(2) of Directive 91/477, as amended by the contested directive, do not alter the state of the law but merely take note of it.126In those circumstances, it must be held that those institutions do not appear to have exceeded their broad discretion. Indeed, contrary to what the Czech Republic, supported by Hungary and the Republic of Poland, claims, the measures criticised cannot be considered manifestly inappropriate in relation to the objectives of ensuring public safety and security for EU citizens and facilitating the functioning of the internal market.127In the fourth place, as regards the proportionality of including deactivated firearms and reproductions of antique firearms in category A or C of Part II of Annex I to Directive 91/477, as amended by the contested directive, first, the Parliament and, in support of it, the Commission have stated that experts certified, during the hearings referred to in paragraphs 90 and 91 of the present judgment, that the risk of a deactivated firearm being reactivated cannot be completely ruled out. It has already been noted, in paragraph 120 of the present judgment, however, that it appears in particular from the studies referred to in paragraphs 88 and 89 of this judgment that the firearms used in mass shootings in Europe included firearms reactivated from deactivated firearms or firearms composed of parts from different weapons and held lawfully.128Second, as the Parliament and the Council, supported by the Commission, note, it is settled that the inclusion of deactivated firearms in category C of Part II of Annex I to Directive 91/477, as amended by the contested directive, merely creates, in essence, the obligation to declare them and that, to the extent that such weapons must be included in category A of Part II of that Annex I, the exceptions and derogations referred to in Article 6(2) to (6) of Directive 91/477, as amended by the contested directive, are applicable. Moreover, neither the Czech Republic nor, in support of it, Hungary or the Republic of Poland has put forward any concrete evidence calling into question the Parliament’s argument that the fact that failing to declare a deactivated firearm makes possessing it unlawful does not in itself increase the risk to public safety and security.129Third, so far as concerns reproductions of antique weapons, it must also be pointed out that neither the Czech Republic nor, in support of it, Hungary or the Republic of Poland has put forward any concrete evidence calling into question the findings, made in recital 27 of the contested directive and relied on by the Parliament and the Council, and supported by the Commission, that such reproductions, first, do not have the same historical importance or interest as genuine antique weapons and, second, can be built using modern techniques that improve their durability and accuracy, suggesting that such weapons can be more dangerous than real antique weapons.130Fourth, with regard to the alternatives mentioned by the Czech Republic and, in support of it, by the Republic of Poland, it is sufficient to refer to the finding made in paragraph 121 of the present judgment.131In these circumstances, it should also be noted that the three institutions do not appear to have exceeded their broad discretion and that, contrary to what the Czech Republic, supported by Hungary and the Republic of Poland, claims, the measures criticised cannot be considered manifestly inappropriate in relation to the objective of ensuring public safety and security for EU citizens.132In the fifth place, the Czech Republic, supported by Hungary and the Republic of Poland, submits that, in particular, the prohibition of the semi-automatic firearms referred to in points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, constitutes an excessive interference with the property rights of their holders.133In that regard, it should be recalled that, while Article 17(1) of the Charter does not lay down an absolute prohibition on persons being deprived of their possessions, that provision does, however, provide that such deprivation may occur only where it is in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary in the general interest.134As regards those requirements, account must also be taken of the provision made by Article 52(1) of the Charter, under which limitations may be imposed on the exercise of the rights recognised by the Charter, as long as the limitations are provided for by law, respect the essence of those rights and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 94 and the case-law cited, and of 21 May 2019, Commission v Hungary (Rights of usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 88).135In the present case, first of all, it is not disputed that Article 1(7)(b) of the contested directive adds to Article 7 of Directive 91/477 a paragraph 4a which essentially allows the Member States to maintain the authorisations already granted for such weapons, provided that they were legally acquired and registered before 13 June 2017. Consequently, first, the contested directive does not require the expropriation of the holders of such weapons that were acquired before its entry into force and, second, any deprivation of ownership of such weapons as a result of the transposition of the contested directive into the law of the Member States must be regarded as being effected by reason of the choice of the Member States.136Next, in so far as the Member States are required, under that directive, to prohibit, in principle, the acquisition and possession of such weapons after the entry into force of that directive, such a prohibition merely prevents, in principle, the acquisition of ownership of property and is subject to all the exceptions and derogations referred to in Article 6(2) to (6) of Directive 91/477, as amended by the contested directive, which are aimed in particular at the protection of critical infrastructure, high-value convoys and sensitive locations as well as the specific situation of collectors, dealers, brokers, museums and target shooters.137Last, to the extent that the Czech Republic and, in support of it, Hungary and the Republic of Poland, seek, by their respective arguments, to call into question, in the light of property law, the prohibition on acquiring ownership of certain weapons and measures of the contested directive other than those prohibitions, it is sufficient to note that those other measures constitute regulation of the use of property in the general interest within the meaning of the third sentence of Article 17(1) of the Charter and that, having regard to the factors set out in paragraphs 120 to 131 of the present judgment, it is not demonstrated that these measures would exceed, in that regard, what is necessary to that end.138It follows that it has not been established, from the elements in the file before the Court, that the limitations placed by the contested directive on the exercise of the right to property recognised by the Charter, in particular with regard to the semi-automatic firearms referred to in points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, constitute a disproportionate interference with that right.139In the light of all the foregoing considerations, the second part of the second plea must be dismissed as unfounded as must, accordingly, the second plea in its entirety. Third plea, alleging breach of the principles of legal certainty and of protection of legitimate expectations 140By its third plea, the Czech Republic considers, first of all, that the circumstances set out in paragraphs 102 and 103 of the present judgment do not satisfy the requirements of clarity and precision required by the principle of legal certainty.141Next, the circumstances set out in paragraph 104 of the present judgment constitute a breach of the principles of legal certainty and of protection of legitimate expectations. If a Member State were to make use of the derogation for the possession of certain firearms now prohibited by persons who held that authorisation on the date of entry into force of the contested directive, it would be required to continue to grant authorisations requested on the basis of the national legislation in force, between the time of that entry into force and the time of the adoption of the transposition measures, but would then have to withdraw those authorisations and remove the firearms themselves from those persons, since they would not be entitled to benefit, ratione temporis, from that derogation.142That would mean, however, that the Member State concerned must, in breach of those principles, retroactively apply the new prohibition to situations existing before its entry into force or give the contested directive direct effect, to the detriment of the individuals concerned. Therefore, the possibility of applying that derogation ceases on the date on which the contested directive enters into force, although the Member States cannot, under EU law, limit it to that date.143Last, the Czech Republic is of the view that the foregoing considerations must lead to the annulment of Article 1(6), (7) and (19) of the contested directive and, accordingly, of that directive in its entirety.144Hungary argues that the circumstances set out in paragraphs 102 and 111 of the present judgment infringe the principle of legal certainty since they are not sufficiently clear to enable the rights and obligations of the persons concerned to be determined unambiguously. Thus, it is not possible to determine clearly whether the authorisation to acquire and possess a firearm classified in category B of Part II of Annex I to Directive 91/477, as amended by the contested directive, must be withdrawn irrespective of whether the person concerned has been found to be in possession of a loading device exceeding the prescribed limits, when that person is in possession of centre-fire semi-automatic firearms.145That Member State is also of the view that Article 10(2) of Directive 91/477, as amended by the contested directive, under which dealers and brokers may refuse to complete any transaction for the acquisition of complete rounds or components of ammunition which they reasonably consider suspicious owing to its nature, is not compatible with the principle of legal certainty, either. That provision, to the extent that it allows professionals to cast doubt on the issuing authority’s decision, could lead to discrimination and misuse.146147In the first place, it is appropriate to reject as inadmissible, having regard to the case-law cited in paragraph 116 of the present judgment, the argument of Hungary summarised in paragraph 145 of this judgment, in so far as it calls into question the legality of a provision of the contested directive other than those disputed by the Czech Republic and thus seeks to alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by that Member State.148In the second place, as regards the conformity of the definitions in points 7 and 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, with the principle of legal certainty, it should be recalled that, according to settled case-law, the principle of legal certainty requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (judgment of 5 May 2015, Spain v Council, C‑147/13, EU:C:2015:299, paragraph 79 and the case-law cited).149So far as concerns the conformity with that principle of the definitions set out in points 7 and 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, it must be held, as has already been noted in paragraphs 123 and 124 of the present judgment, that those points 7 and 8 identify in a clear, precise and foreseeable manner prohibited firearms according to either the inserted loading device or the length of the weapon. In particular, as the Parliament and the Council rightly argue, if firearms are built to allow both shoulder fire and freehanded fire, they can be regarded as having been originally designed for shoulder fire, such that they fall within point 8 of that category A.150Moreover, contrary to what the Czech Republic, supported by Hungary, claims, a combined reading of point 7 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, with recital 23 of that directive and with Article 5(3) and Article 6(1) of Directive 91/477, as amended by the contested directive, is in no way likely to give rise to any confusion.151Indeed, as the Parliament and the Council, supported by the Commission, rightly claim, it is in order to tackle attempts to circumvent the new prohibitions resulting from the inclusion of the said point 7 of category A of Part II of Annex I to Directive 91/477 that Article 5(3) prohibits, in essence, the simultaneous possession of both a semi-automatic firearm falling under category B of Part II of Annex I to Directive 91/477, as amended by the contested directive, and a loading device exceeding the limits prescribed in that point. Moreover, recital 23 and Article 6(1) merely provide an explanation for the classification in question and impose the prohibition in question.152It follows that neither the Czech Republic — nor Hungary, which supports it — has established that those provisions entail a breach of the principle of legal certainty.153In the third place, as regards the conformity of the derogation set out in Article 7(4a) of Directive 91/477, as amended by the contested directive, with the principle of the protection of legitimate expectations, it must be recalled that the right to rely on the principle of the protection of legitimate expectations extends, as a corollary of the principle of legal certainty recalled in paragraph 148 of the present judgment, to any individual in a situation where European Union authorities have caused him to entertain legitimate expectations. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such expectations. However, a person may not plead breach of the principle unless he or she has been given precise assurances by the administration. Similarly, if a prudent and alert economic operator can foresee that the adoption of an EU measure is likely to affect his or her interests, he or she cannot plead that principle if the measure is adopted (judgment of 30 April 2019, Italy v Council (Mediterranean swordfish fishing quota), C‑611/17, EU:C:2019:332, paragraph 112 and the case-law cited).154In the case at hand, it should be noted, first of all, that the provision criticised is intended to prevent an increase, between the entry into force of the contested directive on 13 June 2017 and the expiry of the period for its transposition into Member States’ law on 14 September 2018, in the acquisitions of prohibited firearms from the latter date.155Next, as the contested directive was published in the Official Journal of the European Union 20 days before its entry into force, any person wishing to acquire, after its entry into force, such a weapon could know that, under that directive, his Member State would be required, at the end of the directive’s transposition period at the latest, to revoke any authorisation granted in respect of such a weapon.156Last, there was nothing preventing the Member States from amending their legislation to limit to 14 September 2018 the validity of authorisations granted after 13 June 2017.157In those circumstances, it has not been established, in the light of the case-law cited in paragraph 153 of the present judgment, that the EU legislature has created legitimate expectations on the part of individuals wishing to acquire after 13 June 2017 weapons falling within points 7 and 8 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, or that it imposed any retroactive application of the contested directive on Member States.158Accordingly, the third plea in law must be dismissed as unfounded. Fourth plea, alleging breach of the principle of non-discrimination 159By its fourth plea, the Czech Republic submits that the derogation set out in the second subparagraph of Article 6(6) of Directive 91/477, as amended by the contested directive, is tailor-made for the Swiss Confederation, for which the contested directive constitutes, by virtue of recital 36 thereof, a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis. The conditions for applying that provision being devoid of any reasoning in terms of the objectives of the contested directive, however, it constitutes a discriminatory provision that must be annulled.160Indeed, the condition relating to the existence of a military system based on general conscription and having had in place over the last 50 years a system of transfer of military firearms to persons leaving the army, in addition to the condition that the firearms must be ones falling within point 6 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, cannot be justified by any of the objectives of the contested directive and ensures that that derogation applies only to the Swiss Confederation, an objective that was expressly recognised during the legislative procedure.161As no Member State can benefit from the derogation referred to, owing to the historical condition thus set, it introduces a difference in treatment between, on the one hand, the Swiss Confederation and, on the other hand, the Member States of the European Union and the Member States of the European Free Trade Association (EFTA) other than the Swiss Confederation, which cannot be justified objectively. Indeed, the very duration of the system of conservation of firearms after the end of military duties in no case ensures a higher level of security guarantees. Even if it is conceded that the duration of such a system might be of some relevance, using the period of the last 50 years is nevertheless arbitrary and disproportionate.162Hungary notes that, if the second subparagraph of Article 6(6) of Directive 91/477, as amended by the contested directive, were to be read as merely clarifying the consequences of the first subparagraph of that Article 6(6) for those States which, following long-standing tradition, allow former conscripts, once their military duties have been fulfilled, to keep their weapon, that provision would impose an unjustified additional requirement on persons falling within its scope, taking into account the fact that it would have to be checked periodically whether those persons, unlike target shooters who do not come from military service and who hold a licence on the basis of that first subparagraph, constitute a threat to public security.163164It is important to recall that, according to settled case-law, observance of the principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 29 March 2012, Commission v Poland, C‑504/09 P, EU:C:2012:178, paragraph 62 and the case-law cited).165Consequently, while it is not disputed that, as the Czech Republic, supported by Hungary, claims, the conditions for benefiting from the derogation set out in the second subparagraph of Article 6(6) of Directive 91/477, as amended by the contested directive, are fulfilled only by the Swiss Confederation, it would still be necessary, in order for the fourth plea to succeed, that the Swiss Confederation, on the one hand, and the Member States of the European Union and the Member States of EFTA other than the Swiss Confederation, on the other hand, be in a comparable situation as regards the subject matter of that derogation.166As the Advocate General pointed out in points 139 and 140 of her Opinion, however, the condition relating to the existence of a military system based on general conscription and having in place over the last 50 years a system of transfer of military firearms to persons leaving the army takes into account both the culture and traditions of the Swiss Confederation and the fact that, owing to those traditions, that State has the proven experience and ability to trace and monitor the persons and weapons concerned, which gives reason to assume that the public security and safety objectives pursued by the contested directive will, despite that derogation, be achieved.167Since that cannot be assumed to be the case for States that have neither the tradition of a system of transfer of military firearms nor, therefore, the proven experience and ability to trace and monitor the persons and weapons concerned, it should be found that only those States that also have such a long-standing system are in a situation comparable to that of the Swiss Confederation. The file submitted to the Court, however, does not contain any indications to that end or, consequently, any elements capable of establishing discrimination against the Member States of the European Union or of EFTA.168To the extent that the Czech Republic criticises as arbitrary the fact that the EU legislature has retained the condition of the last 50 years relating to the existence of a system of transfer of military firearms, in addition to the condition that they may only be firearms falling within point 6 of category A of Part II of Annex I to Directive 91/477, as amended by the contested directive, it is sufficient to note that that Member State has not mentioned any other State that has had a system of transfer of military firearms — or even weapons other than those in that category — for less than 50 years, meaning that that criticism must, in any event, be rejected as ineffective.169Finally, to the extent that Hungary claims that the second subparagraph of Article 6(6) of Directive 91/477, as amended by the contested directive, imposes, over the first subparagraph of that Article 6(6), the ‘additional’ requirement to check periodically that the persons concerned do not represent a risk to public security, it is sufficient to note that the said second subparagraph provides for a derogation distinct from that contained in the first subparagraph and that that distinct derogation is subject to specific conditions. Consequently, since those subparagraphs pertain to distinct situations, the fact that they lay down separate conditions does not constitute discrimination.170In the light of the foregoing considerations, the fourth plea must be dismissed as unfounded.171Accordingly, the action must be dismissed in its entirety. Costs 172Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Parliament and the Council have applied for costs to be awarded against the Czech Republic, and the latter has been unsuccessful, it must be ordered to pay the costs, including the costs relating to the proceedings for interim measures.173Pursuant to Article 140(1) of the same rules, the French Republic, Hungary, the Republic of Poland and the Commission, as interveners, must bear their own costs.On those grounds, the Court (Grand Chamber) hereby: 1. Dismisses the action; 2. Orders the Czech Republic to pay, in addition to its own costs, the costs incurred by the European Parliament and the Council of the European Union; 3. Orders the French Republic, Hungary, the Republic of Poland and the European Commission to bear their own costs. [Signatures]( *1 ) Language of the case: Czech. | 690fb-69d22ef-404e | EN |
An air carrier is only required to compensate passengers for a delay of three hours or more where an aircraft tyre is damaged by a screw lying on the runway if it fails to prove that it deployed all means at its disposal for limiting the delay of the flight | 4 April 2019 ( *1 )(Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Scope — Exemption from the obligation to pay compensation — Notion of ‘extraordinary circumstances’ — Damage to an aircraft tyre caused by a foreign object lying on an airport runway)In Case C‑501/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Köln (Regional Court, Cologne, Germany), made by decision of 25 July 2017, received at the Court on 18 August 2017, in the proceedings Germanwings GmbH v Wolfgang Pauels, THE COURT (Third Chamber),composed of M. Vilaras, President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský, L. Bay Larsen, M. Safjan and D. Šváby (Rapporteur), Judges,Advocate General: E. Tanchev,Registrar: D. Dittert, Head of Unit,having regard to the written procedure and further to the hearing on 17 September 2018,after considering the observations submitted on behalf of:–Germanwings GmbH, by W. Bloch and Y. Pochyla, Rechtsanwälte,W. Pauels, by E. Stamer and M. Hofmann, Rechtsanwälte,the German Government, by T. Henze, J. Möller, M. Hellmann, M. Kall, J. Techert and A. Berg, acting as Agents,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by K. Simonsson, B. Bertelmann and K.-Ph. Wojcik, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 22 November 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).2The request has been made in proceedings between Mr Wolfgang Pauels and Germanwings GmbH, an air carrier, concerning the latter’s refusal to compensate that passenger for a long delay to his flight. Legal context 3Recitals 14 and 15 of Regulation No 261/2004 state:‘(14)As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.(15)Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.’4Under the heading ‘Cancellation’, Article 5(1) and (3) of that regulation provides:‘1. In case of cancellation of a flight, the passengers concerned shall:…(c)have the right to compensation by the operating air carrier in accordance with Article 7, unless:(i)they are informed of the cancellation at least two weeks before the scheduled time of departure; or(ii)they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or(iii)they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’5Under the heading ‘Right to compensation’, Article 7(1)(a) of the regulation provides:‘Where reference is made to this Article, passengers shall receive compensation amounting to:(a)EUR 250 for all flights of 1500 kilometres or less;…’ The dispute in the main proceedings and the question referred for a preliminary ruling 6Mr Pauels booked a flight from Dublin (Ireland) to Düsseldorf (Germany) with Germanwings.7That flight took place on 28 August 2015 with a delay in arrival of 3 hours and 28 minutes.8Germanwings refused to pay compensation to Mr Pauels on the ground that the delay in the flight in question was due to ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 thereby discharging it from its obligation to pay compensation under Article 5(1) of that regulation.9In that regard, Germanwings contends that the delay was caused by a screw found, during the preparations for take-off of the flight at issue, in a tyre of the aircraft operating that flight, which meant that the tyre in question needed to be changed.10Following an action brought by Mr Pauels, the Amtsgericht Köln (Local Court, Cologne, Germany) ordered Germanwings to pay Mr Pauels EUR 250 together with interest on the ground that the damage caused to an aircraft tyre by a screw lying on the runway of an airport constitutes a circumstance which is inherent in the normal exercise of the activity of an air carrier and effectively controllable by it. In support of that decision, the Amtsgericht Köln (Local Court, Cologne) added that its assessment is also in line with the will of the legislature, as evidenced by the statutory rules on airfield supervision.11Germanwings brought an appeal against that decision before the Landgericht Köln (Regional Court, Cologne). It considers that the Amtsgericht Köln (Local Court, Cologne) overestimated what is within its control. In that regard, it claims that the use of an airport runway is to be attributed to general air traffic and not to the specific tasks of an air carrier. It considers that the cleaning of a runway also does not form part of the duties of an air carrier and is not within its control.12The Landgericht Köln (Regional Court, Cologne) considers that the outcome of the case depends on whether or not, on the basis of Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, damage to a tyre caused by a screw lying on the runway falls within the normal exercise of the activity of the air carrier in question and, owing to its nature or origin, is beyond its control.13It stated that it has held in several prior sets of proceedings that damage to an aircraft tyre caused by nails or similar objects on the runway amounts to ‘extraordinary circumstances’ in so far as foreign objects on runways constitute a risk beyond the control of air carriers and, unlike the premature malfunction of specific aircraft components, notwithstanding regular maintenance, constitute a supervening extraneous event.14Nevertheless, it refers to the decisions of other courts which have held to the contrary, in particular following the order of 14 November 2014, Siewert (C‑394/14, EU:C:2014:2377), that damage to an aircraft tyre caused by foreign objects on the runway cannot be compared to the collision with boarding stairs considered in that order and should, on the other hand, be compared to the collision with a bird considered in the judgment of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342). In that regard, it observes that clearing the runway is a matter for airport safety and not the duty of an air carrier.15It therefore considers it necessary to refer the matter to the Court, whilst specifying that, were the facts of the present case ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, it would need to take further evidence.16In those circumstances, the Landgericht Köln (Regional Court, Cologne) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Is the damage to an aircraft tyre caused by a screw lying on the take-off or landing runway (foreign object damage/FOD) an extraordinary circumstance within the meaning of Article 5(3) of [Regulation No 261/2004]?’ Consideration of the question referred 17By its question, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that damage to an aircraft tyre caused by a foreign object, such as loose debris, lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of that provision.18It must be borne in mind that the EU legislature has laid down the obligations of air carriers in the event of cancellation or long delay of flights (that is, a delay equal to or in excess of three hours) in Article 5(1) of Regulation No 261/2004 (see judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 19 and the case-law cited).19Recitals 14 and 15 and Article 5(3) of that regulation, as interpreted by the Court, state that an air carrier is to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004 if the carrier can prove that the cancellation or delay of three hours or more is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken (see judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 20 and the case-law cited) and, where such circumstances do arise, that it adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid that situation from resulting in the cancellation or long delay of the flight in question, without the air carrier being required to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time (see, to that effect, judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraphs 29 and 34).20According to settled case-law, events may be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control (see, to that effect, judgments of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 23, and of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 22), since both conditions are cumulative (judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 34).21As to whether damage to aircraft tyres, which are essential to the operation of aircraft, may be regarded as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, it must, first of all, be noted that the premature, or even unexpected, malfunction of certain components of a particular aircraft constitutes, in principle, an unexpected event intrinsically linked to the operating system of that aircraft (see, to that effect, judgments of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraphs 41 and 42, and of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 23).22Air carriers are regularly faced with such malfunctioning in the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 24; order of 14 November 2014, Siewert, C‑394/14, EU:C:2014:2377, paragraph 19 and judgment of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraphs 37 and 42).23In that regard, it is common ground that aircraft tyres are components which are, on landing and take-off, subject to very great stress and are therefore subject to a permanent risk of damage, justifying particularly strict regular safety checks, which form part of an air carrier’s everyday operating conditions.24However, where the malfunctioning in question is the sole result of the impact of a foreign object, which must be proven by the air carrier, such malfunctioning cannot be regarded as intrinsically linked to the operating system of that aircraft.25That is, inter alia, true of damage to an aircraft caused by its collision with a bird (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 24) and, as in the case in the main proceedings, of damage to a tyre caused by a foreign object, such as loose debris, lying on the airport runway.26Therefore, if the malfunctioning of a tyre is the sole result of impact with a foreign object lying on the airport runway, it cannot be regarded as inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned. In addition, in view of the particular constraints to which the air carrier is subject during take-off and landing operations, related inter alia to the speed at which those operations are conducted and the need to ensure passenger safety aboard, and of the fact that the air carrier is not responsible for clearing the runway, such circumstances are outside that carrier’s actual control.27Consequently, such malfunctioning must be regarded as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.28As appears from point 78 of the Advocate General’s Opinion, such a finding satisfies the objective of ensuring the high level of protection for air passengers pursued by Regulation No 261/2004, which, as is specified in recital 1 thereof, means not encouraging air carriers to refrain from taking the necessary measures by prioritising the operation and timeliness of their flights over the objective of flight safety.29Furthermore, that finding cannot be called into question by the rule applied in the order of 14 November 2014, Siewert (C‑394/14, EU:C:2014:2377), where the Court held that the collision of an airport’s set of mobile boarding stairs with an aircraft cannot be regarded as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.30Such equipment is indispensable to air passenger transport, enabling passengers to enter or leave the aircraft (order of 14 November 2014, Siewert, C‑394/14, EU:C:2014:2377, paragraph 19) and the use of such equipment ordinarily takes place in collaboration with the crew of the aircraft concerned. Such circumstances cannot therefore be regarded as not inherent in the normal exercise of the activity of the air carrier concerned or outside that carrier’s actual control.31Nevertheless, as set out in paragraph 19 above, in the event of ‘extraordinary circumstances’, an air carrier is to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004 only if the carrier can prove that it adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid that situation from resulting in the cancellation or long delay of the flight in question, without the air carrier being required to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.32In that regard, it emerged from the hearing that aircraft tyres are subject to regular checks and changed according to standard procedures under which air carriers are able to have at their disposal, in the airports from which they operate, including those which are not their principal hubs, contracts with air maintenance companies for changing their tyres under which they are afforded priority treatment for changing tyres.33Therefore, in a situation such as that at issue in the main proceedings, it is for the air carrier concerned to prove that it deployed all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the changing of the tyre damaged by a foreign object lying on an airport runway from leading to long delay of the flight in question, which is for the referring court to ascertain.34Accordingly, the answer to the question referred is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that damage to an aircraft tyre caused by a foreign object, such as loose debris, lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of that provision.However, in order to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004, an air carrier whose flight has been subject to long delay due to such ‘extraordinary circumstances’ must prove that it deployed all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the changing of a tyre damaged by a foreign object, such as loose debris, lying on the airport runway from leading to long delay of the flight in question. Costs 35Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in the light of recital 14 thereof, must be interpreted as meaning that damage to an aircraft tyre caused by a foreign object, such as loose debris, lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of that provision. However, in order to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004, an air carrier whose flight has been subject to long delay due to such ‘extraordinary circumstances’ must prove that it deployed all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the changing of a tyre damaged by a foreign object, such as loose debris, lying on the airport runway from leading to long delay of the flight in question. [Signatures]( *1 ) Language of the case: German. | 07c5c-7354048-4760 | EN |
The Court of Justice annuls the Commission decision stating that the German law on renewable energy of 2012 (the EEG 2012) involved State aid | 28 March 2019 ( *1 )(Appeal — State aid — Aid granted by certain provisions of the amended German law concerning renewable energy sources (EEG 2012) — Aid supporting renewable electricity and reduced EEG surcharge for energy-intensive users — Decision declaring the aid partially incompatible with the internal market — Concept of State aid — Advantage — State resources — Public control of resources — Measure which can be assimilated to a levy on electricity consumption)In Case C‑405/16 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 July 2016, Federal Republic of Germany, represented by T. Henze and R. Kanitz, acting as Agents, and by T. Lübbig, Rechtsanwalt,appellant,the other party to the proceedings being: European Commission, represented by K. Herrmann and T. Maxian Rusche, acting as Agents,defendant at first instance,THE COURT (Third Chamber),composed of M. Vilaras (Rapporteur), President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský, L. Bay Larsen, M. Safjan and D. Šváby, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1By its appeal, the Federal Republic of Germany seeks annulment of the judgment of the General Court of the European Union of 10 May 2016, Germany v Commission (T‑47/15, ‘the judgment under appeal’, EU:T:2016:281), by which the General Court dismissed its action, based on Article 263 TFEU, for annulment of Commission Decision (EU) 2015/1585 of 25 November 2014 on the aid scheme SA. 33995 (2013/C) (ex 2013/NN) (implemented by Germany for the support of renewable electricity and of energy-intensive users) (OJ 2015 L 250, p. 122) (‘the decision at issue’). Background to the dispute and the decision at issue 2On 28 July 2011, the German legislature adopted the Gesetz zur Neuregelung des Rechtsrahmens für die Förderung der Stromerzeugung aus erneuerbaren Energien (Law revising the legal framework for the promotion of electricity production from renewable energy) (BGBl. 2011 I, p. 1634; ‘the EEG 2012’). That law, in force between 1 January 2012 and 31 July 2014, aimed to increase the share in the electricity supply of electricity produced from renewable energy sources and mine gas (‘EEG electricity’).3The main characteristics of the mechanism established by the EEG 2012 are set out in paragraphs 4 to 12 of the judgment under appeal as follows:‘4In the first place, network operators at all voltage levels (“NOs”) ensuring the general supply of electricity are required (i) to connect installations producing EEG electricity within their area of activity to their network (Paragraphs 5 to 7 of the EEG 2012), (ii) to feed that electricity into their network, transmit it and distribute it by way of priority (Paragraphs 8 to 12 of the EEG 2012) and (iii) to make to the operators of those installations a payment that is calculated on the basis of tariffs laid down by law, in the light of the nature of the electricity at issue and the rated or installed capacity of the installation concerned (Paragraphs 16 to 33 of the EEG 2012). Alternatively, operators of installations producing EEG electricity are entitled, first, to sell all or part of that electricity directly to third parties and, secondly, to require the NO to which the installation would have been connected but for such direct sale to pay them a market premium calculated on the basis of the amount that would have been payable had the installation been connected (Paragraphs 33a to 33i of the EEG 2012). In practice, it is not in dispute that those obligations are borne essentially by local low or medium-voltage distribution system operators (“DSOs”).5In the second place, the DSOs are required to transmit the EEG electricity to the interregional upstream operators of high and very-high-voltage transmission systems (“TSOs”) (Paragraph 34 of the EEG 2012). As consideration for that obligation, the TSOs are required to pay the DSOs the equivalent of the payments and market premiums received by installation operators from the DSOs (Paragraph 35 of the EEG 2012).6In the third place, the EEG 2012 provides for a ‘nationwide compensation mechanism’ in respect of, first, the quantities of EEG electricity which each TSO feeds into its network and, secondly, the sums paid by way of consideration to the DSOs (Paragraph 36 of the EEG 2012). In practice, each TSO that has fed in and paid for a quantity of EEG electricity greater than the quantity provided by electricity suppliers to final customers located in its area may claim, in regard to the other TSOs, an entitlement to compensation corresponding to that difference. Since the years 2009-10, the compensation no longer takes place in actual form (exchange of EEG electricity flows) but in financial form (compensation of the related costs). Three of the four TSOs concerned by that compensation mechanism are private undertakings (Amprion GmbH, TenneT TSO GmbH and 50Hertz Transmission GmbH), whilst the fourth is a public undertaking (Transnet BW GmbH).7In the fourth place, the TSOs are required to sell the EEG electricity which they feed into their network on the spot market of the electricity exchange (Paragraph 37(1) of the EEG 2012). If the price thereby obtained does not enable them to cover the financial burden imposed upon them by the statutory obligation to pay for that electricity at the rates laid down by law, they are entitled, under the conditions laid down by the legislative authorities, to require the suppliers to the final customers to pay them the difference, in proportion to the quantities sold. This mechanism is called the “EEG surcharge” (Paragraph 37(2) of the EEG 2012). The amount of the EEG surcharge may nevertheless be reduced by EUR 0.02 per kilowatt hour (kWh) in certain cases (Paragraph 39 of the EEG 2012). In order to obtain such a reduction, referred to by the EEG 2012 as a “reduction of the EEG surcharge”, but also known as the “green electricity privilege”, electricity suppliers must in particular demonstrate (i) that at least 50% of the electricity that they deliver to their customers is EEG electricity, (ii), that at least 20% of that electricity is derived from wind or solar radiation energy and (iii) that the electricity is sold directly to their customers.8...9In the fifth place, it is not in dispute that, although the EEG 2012 does not oblige electricity suppliers to pass the EEG surcharge on to the final customers, it does not prevent them from doing so, either. Nor is it in dispute that the suppliers, which are themselves obliged to pay the surcharge to the TSOs, in practice pass it on to their customers, as the Federal Republic of Germany indeed confirmed at the hearing. The manner in which the surcharge is to be shown on the bill sent to customers is prescribed by the EEG 2012 (Paragraph 53 of the EEG 2012), as are the conditions under which customers must be informed of the proportion of renewable energy subsidised under the Law on renewable energy that is supplied to them (Paragraph 54 of the EEG 2012).10In addition, the EEG 2012 lays down a special compensation scheme, under which the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office for Economic Affairs and Export Control; ‘the BAFA’) each year caps the amount of the EEG surcharge that may be passed on by electricity suppliers to two specified categories of customers — namely, first, ‘electricity-intensive undertakings in the manufacturing sector’ (‘EIUs’) and, secondly, ‘railways’ — following a request which must be submitted by them by 30 June of the previous year, with the aim of reducing their electricity costs and, in so doing, of maintaining their competitiveness (Paragraph 40 of the EEG 2012).11The EEG 2012 specifies the conditions for qualifying for that scheme, the procedure that must be followed by eligible undertakings, the detailed rules for determining the cap on a case-by-case basis and the effects of decisions adopted in this connection by the BAFA (Paragraphs 41 to 44 of the EEG 2012). The EEG 2012 provides in particular that, for undertakings in the manufacturing sector whose electricity consumption costs represent at least 14% of their gross value added and whose consumption is at least 1 gigawatt hour (GWh), the cap is set at 10% of the EEG surcharge for the part of their consumption between 1 GWh and 10 GWh, at 1% of that surcharge for the part of their consumption between 10 GWh and 100 GWh, and at EUR 0.0005 per kWh above that. The EEG 2012 also provides that, for undertakings in the manufacturing sector whose electricity consumption costs represent at least 20% of their gross value added and whose consumption is at least 100 GWh, the EEG surcharge is capped at EUR 0.0005 per kWh from the first kilowatt hour. The EEG 2012 further states that electricity suppliers must inform undertakings that have received a notice capping the EEG surcharge (i) of the proportion of renewable energy benefiting from aid under the Law on renewable energy that is supplied to them, (ii) of the composition of their overall energy mix and (iii), for undertakings which are supported pursuant to the Law on renewable energy, of the composition of the energy mix that is provided to them (Paragraph 54 of the EEG 2012).12In the sixth place, the EEG 2012 contains a set of obligations requiring the provision of information and publication that are imposed on operators of installations, NOs and electricity suppliers, in particular vis-à-vis TSOs and the Bundesnetzagentur (Federal Networks Agency; “the BNetzA”), as well as a series of transparency obligations owed specifically by TSOs (Paragraphs 45 to 51 of the EEG 2012). That law also specifies the powers of supervision and control that the BNetzA possesses in respect of DSOs and TSOs (Paragraph 61 of the EEG 2012).’4After deciding, on 18 December 2013, to initiate the formal investigation procedure in respect of the measures contained in the EEG 2012, the European Commission adopted the decision at issue on 25 November 2014.In that decision, the Commission considers that the EEG 2012 involves two types of selective advantages which lead to a classification as State aid, for the purposes of Article 107(1) TFEU, namely, first, support for the production of electricity from renewable energy sources and mine gas, which guaranteed EEG electricity producers, through feed-in tariffs and market premiums, a price for electricity above the market price and, secondly, the special compensation scheme, by virtue of which the EEG surcharge could be reduced for energy-intensive users (Article 3 of the decision at issue).The operative part of the decision at issue reads as follows:‘Article 1 The State aid for the support of electricity production from renewable energy sources and from mine gas, including its financing mechanism, granted on the basis of the [EEG 2012], unlawfully put into effect by Germany in breach of Article 108(3) [TFEU], is compatible with the internal market subject to the implementation of the commitment set out in Annex I by Germany.… Article 3 1. The State aid consisting of reductions in the surcharge for the funding of support for electricity from renewable sources … in the years 2013 and 2014 for energy-intensive users …, unlawfully put into effect by Germany in breach of Article 108(3) [TFEU], is compatible with the internal market if it falls into one of the four categories set out in this paragraph.2. Any aid that is not covered by paragraph 1 is incompatible with the internal market.’ The proceedings before the General Court and the judgment under appeal By application lodged at the Registry of the General Court on 2 February 2015, the Federal Republic of Germany brought an action for annulment of the decision at issue, raising three pleas in law which the General Court rejected in turn in the judgment under appeal.The General Court rejected as unfounded, in paragraphs 33 to 42 of the judgment under appeal, the first plea in law, alleging that the Commission committed manifest errors of assessment in its evaluation of the State’s role in the operation of the EEG 2012. The General Court noted, inter alia, in paragraph 40 of the judgment under appeal, that the measures at issue were established by law and were, therefore, imputable to the German State.The General Court also rejected, in paragraphs 49 to 70 of the judgment under appeal, the various arguments put forward by the Federal Republic of Germany in the context of its second plea in law, alleging that there was no advantage linked to the special compensation scheme. It pointed out, in paragraph 44 of the judgment under appeal, that that plea in law concerned exclusively the very existence for EIUs of an advantage, without raising either the question of the selectivity of that advantage nor that of the existence of an advantage linked to the support scheme in favour of EEG electricity producers. It held, inter alia, in paragraph 55 of the judgment under appeal, that the special compensation scheme created an advantage for EIUs, in so far as it released them from a charge that they should normally have borne.Finally, the General Court rejected, in paragraphs 81 to 129 of the judgment under appeal, the various parts of the third plea in law put forward by the Federal Republic of Germany, alleging that there was no advantage financed through State resources. It thus held that the Commission was fully entitled to consider that the mechanism established by the EEG 2012, namely the scheme to support producers of EEG electricity and the special compensation scheme for EIUs, involved State resources, within the meaning of Article 107(1) TFEU.In the present case, after briefly recalling, in paragraphs 81 to 83 of the judgment under appeal, the relevant case-law of the Court of Justice concerning the concept of State resources, in particular the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294, paragraph 37), the General Court, first of all, summarised the decision at issue in paragraphs 84 to 90 of the judgment under appeal.Next, in paragraphs 91 to 129 of the judgment under appeal, the General Court examined whether the Commission had been correct in finding that the EEG 2012 involved State resources, within the meaning of Article 107(1) TFEU.13In that regard, the General Court noted, at the outset, in paragraph 92 of the judgment under appeal, that ‘the EEG surcharge, collected and administered by the TSOs, [was] intended ultimately to cover the costs generated by the feed-in tariffs and market premium provided for in the EEG 2012 by guaranteeing producers of EEG electricity a price for the electricity they produce[d] that is above the market price’ so that ‘the EEG surcharge must be considered to result, principally, from implementation of a public policy, laid down by the State through legislation, to support producers of EEG electricity’.14Finally, the General Court endeavoured to show that the Commission had not erred, first, in relying on three sets of considerations, set out in paragraphs 93 to 110 of the judgment under appeal and summarised in paragraphs 111 and 112 of that judgment and, secondly, by rejecting, in paragraphs 113 to 126 of the judgment under appeal, the arguments put forward by the Federal Republic of Germany.15Paragraphs 111 and 112 of the judgment under appeal are worded as follows:‘111Accordingly, it must be held that the Commission was correct in maintaining, in recital 138 of the contested decision, read in conjunction with recitals 98 to 137, that the advantage provided for by Paragraphs 16 to 33i of the EEG 2012 for producers of EEG electricity through the feed-in tariffs and market premiums is akin, in the present instance, to a levy set by the State authorities involving State resources in that the State organises a transfer of financial resources through legislation and establishes for what purposes those financial resources may be used.112That conclusion also applies to the advantage for the energy-intensive users consisting of the EIUs in that, as the Commission correctly pointed out in recital 114 of the contested decision, the compensation mechanism laid down by the EEG 2012 constitutes an additional burden for the TSOs. Any reduction in the amount of the EEG surcharge has precisely the effect of reducing the amounts collected by electricity suppliers from EIUs and may be regarded as leading to losses in revenue for the TSOs. However, those losses are subsequently recovered from other suppliers and, de facto, from other final customers, in order to offset the losses thus incurred, as the Federal Republic of Germany indeed confirmed at the hearing in reply to a question from the Court. Thus, the average final consumer in Germany is involved, in a certain way, in the subsidising of the EIUs for which the EEG surcharge is capped. Moreover, the fact that final electricity consumers who are not EIUs must bear additional costs caused by the capping of the EEG surcharge for EIUs is a further indication, when analysed with the foregoing reasoning, that the funds generated by the EEG surcharge are indeed special resources, equivalent to a levy on electricity consumption, the use of which for strictly defined purposes was laid down in advance by the German legislature within the framework of implementation of a public policy and not of a private initiative.’16The General Court concluded its analysis in paragraphs 127 and 128 of the judgment under appeal, as follows:‘127It follows from that analysis that the mechanisms under the EEG 2012 result, principally, from implementation of a public policy, laid down through the EEG 2012 by the State, to support producers of EEG electricity and that, first, the funds generated by the EEG surcharge and administered collectively by the TSOs remain under the dominant influence of the public authorities, secondly, the amounts in question, generated by the EEG surcharge, are funds which involve a State resource and can be assimilated to a levy and, thirdly, it may be concluded from the powers and tasks given to the TSOs that they do not act freely and on their own behalf, but as administrators, assimilated to an entity executing a State concession, of aid granted through State funds.128It follows from all the foregoing that the Commission was correct in finding in the contested decision that the EEG 2012 involves State resources within the meaning of Article 107(1) TFEU.’ Forms of order sought and procedure before the Court of Justice 17The Federal Republic of Germany claims that the Court should:–set aside the judgment under appeal in its entirety and uphold its action against the decision at issue;in the alternative, refer the case back to the General Court;order the Commission to pay the costs.18The Commission contends that the Court should:reject the first ground of appeal as inadmissible and, in the alternative, as unfounded;reject the second ground of appeal as partially inadmissible, or in the alternative as partially ineffective and, in any event, as unfounded;reject the third ground of appeal as unfounded; andorder the Federal Republic of Germany to bear the costs of the proceedings.19By decision of the President of the Court of Justice of 25 October 2017, the proceedings in the present case were stayed, pursuant to Article 55(1)(b) of the Rules of Procedure of the Court of Justice, pending delivery of the judgment of 25 July 2018, Georgsmarienhütte and Others (C‑135/16, EU:C:2018:582). The appeal 20In support of its appeal, the Federal Republic of Germany puts forward three grounds of appeal, the first two of which allege infringement of Article 107(1) TFEU and the third failure to observe the obligation to state the reasons on which judgments are based. The Commission claims that the first two grounds of appeal are inadmissible and, in the alternative, ineffective and, in any event, unfounded and that the third ground of appeal is unfounded. The first ground of appeal, alleging infringement of Article 107(1) TFEU in so far as concerns the use of State resources Arguments of the parties 21By its first ground of appeal, which is divided into two parts, the Federal Republic of Germany claims, in essence, that in concluding that the EEG surcharge system involved the grant of an advantage through State resources or, at the very least, imputable to the State, the General Court erred in law in the interpretation and application of the criterion relating to the grant of an advantage through State resources, within the meaning of Article 107(1) TFEU.22In a very general way, that Member State submits, first of all, that the General Court failed, in its assessment of the use of State resources and in concluding that the TSOs were services entrusted with a potential power of disposal and State control over the funds from the EEG surcharge, sufficiently to distinguish the roles that the State may play as both legislative authority and executive authority.23By the first part of its first ground of appeal, which mainly concerns paragraph 93 of the judgment under appeal, the Federal Republic of Germany claims that the General Court erred in assessing the role played by the TSOs in the EEG surcharge system.24The Federal Republic of Germany maintains that, in paragraph 93, the General Court found, first, that the EEG 2012 conferred on the TSOs a series of obligations and rights as regards implementation of the mechanisms that it established, so that they were the central point in the operation of the system laid down by the EEG. The General Court found, secondly, that the funds generated by the EEG surcharge did not pass directly from the final consumers to the producers of EEG electricity, but required the intervention of intermediaries, entrusted in particular with their collection and administration, that they were not paid into the TSOs’ general budget or freely available to them, so that they were administered collectively by the TSOs and remained under the dominant influence of the public authorities.25By describing the operation of the allocation mechanism set up by the EEG 2012, then comparing that mechanism with the case-law of the Court of Justice, the Federal Republic of Germany seeks to demonstrate in turn, first, that the mechanism set up by the EEG 2012 did not involve any link to the budget of the State or of a public body, secondly that any rights of access rights or control exercised by the State in respect of TSOs did not involve any State control of EEG resources, and, thirdly that no levy or waiver of State revenue existed.26Thus, first, the assessment of the EEG allocation mechanism does not in any way permit the conclusion that State resources or resources attributable to the State were used, as the Court of Justice found in its judgments of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160); of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), and of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413).27According to that case-law, charges, taxes and fees are characterised by the fact that the revenue generated must, in one form or another, and directly or indirectly, flow into the budget of the State or of a public body. However, the resources received by TSOs to cover the costs of marketing EEG electricity do not in any way reduce, directly or indirectly, the resources of the State. They are participants in the supply chain which incur those costs in exchange for the ‘renewable’ nature of the electricity and which offset them in the context of the private economy.28The State does not therefore enjoy any access to that revenue and has not delegated the performance of a public role to the TSOs. They do not collect the EEG surcharge on behalf of the State, with the result that the General Court erred in law in finding that they were quasi-holders of State concessions. Having inaccurately assessed the legal nature of the role of the TSOs, the General Court incorrectly applied the concept of control and of imputability of the conduct of TSOs to the State.29The EEG surcharge is not attributed to the federal budget or to the budget of a public body, as shown by the compensation mechanism for TSO costs. The TSOs set the amount of that surcharge by comparing the revenue and costs, where the revenue, to a greater or lesser extent, is subject of compensation between the TSOs the following year, without being included in the budget of a public entity. Surplus revenue is not paid into the State budget and excess expenditure is not compensated from that budget.30It is, ultimately, legally incorrect to assume, as did the General Court in paragraph 83 of the judgment under appeal that the relevant sums ‘constantly’ remain available to the ‘competent national authorities’ or even, as it did in paragraph 94 of the judgment under appeal, that the funds administered collectively by the TSOs remain under the dominant influence of the public authorities.31The General Court also gave significant weight, in paragraph 117 of that judgment, to the fact that funds received by TSOs have to be managed via a separate account, subject to control by State authorities. However, the separate accounts are held by the TSOs for reasons of transparency and to avoid abuse, and not to allow the Member State concerned to manage special assets belonging to companies.32Secondly, the General Court also erred in law in finding that the tasks relating to supervision and checking that the acts carried out by private market participants are valid and lawful, which are entrusted to State authorities, involved State control of EEG resources.33The mechanisms provided for by the EEG, which correspond to the assessment criteria developed by the Court of Justice in its judgment of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE (C‑677/11, EU:C:2013:348, paragraph 38), are dedicated to checking that the allocation system functions properly and that the intention of the legislature is observed, but do not create a significant opportunity for guidance or influence on the part of the State authorities, which permit the view that there is ‘exercise of State control’. Those authorities have only the option of adopting disciplinary measures or bringing administrative offence proceedings against private operators who infringe the EEG 2012 and do not have any authority allowing them access to the resources of those operators through the influencing of payments and financial flows.34The EEG payment by NOs is itself excluded from State control. The NOs alone take the decision whether or not to make that payment and determine the amount. Likewise, collection of the EEG surcharge is subject only to limited supervision, with the TSOs being the sole parties to decide whether or not to require it. Contrary to what the General Court stated in paragraph 125 of the judgment under appeal, the TSOs are not strictly monitored by the competent German administrative bodies, and in particular not by the BNetzA, whose supervisory task consists, in essence, of ensuring the correct implementation of the provisions relating to the EEG surcharge. The BNetzA does not have the right to determine the amount of the EEG surcharge, which is calculated by the TSOs under their own responsibility.35The legal requirement for an abstract system of calculation and the obligations of transparency and supervision rights that that entails serve only to prevent the unjust enrichment of an operator during the stages in the chain whereby the surcharge is passed on, with protection against abuse having to be exercised before the civil courts, in the context of the private law relationships between the participants. Those participants are not beneficiaries of a delegation or a State concession and have no opportunity to ask an administrative authority to invoke their rights.36Thirdly, the EEG surcharge is not a levy and, consequently, capping thereof does not constitute a waiver of State resources. The General Court erred in law in finding, in paragraph 95 of the judgment under appeal that, in so far as final consumers were required to pay a price supplement, the EEG surcharge constituted a charge unilaterally imposed by the State in the context of its policy to support producers of EEG electricity, which can be assimilated, in terms of its effects, to a levy on electricity consumption in Germany. The mere fact that the EEG allocation mechanism allows the payments to be made to operators of installations to be passed on to the final electricity consumers does not support the conclusion that a levy exists.37The EEG surcharge constitutes an increase applied to a purchase price of a private nature paid by electricity suppliers in return for the ‘green’ electricity label and thus falls within the scope of a relationship involving a service and consideration, unlike a levy which is collected on a compulsory basis without consideration. In addition, the case-law of the Court of Justice requires, in order for a levy to be classified as State aid, it must be hypothecated to the aid measure, which is not so in the case of the EEG surcharge. That surcharge does not constitute revenue of a Member State, determined in an abstract manner. The EEG 2012 thus constitutes a continuation of the Stromeinspeisungsgesetz (Law on feeding electricity from renewable energy sources into the public grid, BGBl. 1990 I, p. 2633) which the Court of Justice did not classify as aid in its judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160) the only difference between the two schemes arising being that the electricity suppliers buy not the physical electricity but the renewable nature of that electricity at a fixed price (EEG surcharge).38Ultimately, the essential characteristics of a levy are lacking, in so far as, first, the EEG does not require electricity suppliers to invoice that surcharge to their customers, secondly, the passing on of that surcharge, which electricity suppliers include in their sales price, cannot be enforced under public law, but only through a civil action and, thirdly, the ‘revenue’ generated by that surcharge forms part of the general assets of the electricity suppliers, with the State having no authority to exercise the slightest influence over the management or use of those funds.39By the second part of its first ground of appeal, the Federal Republic of Germany maintains that the General Court also erred in disregarding the fact that, under the system established by the EEG 2012, recognition of aid granted through State resources essentially depended on the role of the electricity suppliers, which in the present case was not sufficiently taken into consideration.40First, while the General Court was correct in finding that the EEG 2012 does not require electricity suppliers to pass on the EEG surcharge to the end customers, but does not, however, prohibit this, it misconstrued the role of those suppliers in concluding, in paragraphs 95 et seq. of the judgment under appeal, that that surcharge was a de facto levy and that it cannot be analysed as the TSOs’ own resource, for which the Member State simply prescribed a particular use by a legislative measure.41Secondly, the General Court failed to have regard to the fact that the role and task of the electricity suppliers are much less regulated by law than those of the TSOs. Those suppliers are not required to keep separate accounts or to ensure that assets are kept separately, in so far as the EEG surcharge should be regarded as a normal share of their revenues. They are not subject to any legal requirement concerning conduct regarding prices or use of resources. No State control is exercised over their relationships with their customers, who allegedly finance the aid system criticised by the Commission and the General Court. The EEG surcharge and any passing-on thereof to final consumers by electricity suppliers are part of a commercial relationship between private undertakings or individuals without the intervention of a public authority. The fact that the funds in question do not pass directly from consumers to electricity producers but require the intervention of intermediaries responsible for collecting and managing them has no bearing on their being regarded as private resources.42Thirdly, while the General Court had examined the role of the electricity suppliers in sufficient detail, it should have reached the conclusion that the State had no access to EEG resources. This is particularly true since the relationship between electricity suppliers and the final consumers is of a purely private nature. The General Court misconstrued the scope of the concept of control and thus infringed Article 107(1) TFEU by classifying the activity of a private company as ‘State control’, when the latter is not subject to any legal obligation to collect the EEG surcharge, the amount of that surcharge to be passed on, if that is the case, is not subject to legal requirements, the authorities cannot exercise any influence on price setting by electricity suppliers, the turnover of those suppliers which may contain the payment of the surcharge forms part of their assets and State authorities are not empowered to exercise an influence over the use, by the latter, of those resources.43The Commission claims that the first ground of appeal raised by the Federal Republic of Germany is inadmissible and, in the alternative, that it is partly ineffective and, in any event, unfounded. Findings of the Court – Admissibility of the ground of appeal in its entirety 44The Commission claims that the first ground of appeal raised by the Federal Republic of Germany is inadmissible in its entirety in that it criticises not the General Court’s legal interpretation of the concept of State control, but its findings relating to national law, which form part of the assessment of the facts.45Such an argument must be rejected.46While it is true that the Federal Republic of Germany relies on the wording of the EEG 2012 to invoke its various arguments, the fact remains that, in the first part of its first ground of appeal, it claims essentially that the General Court erred in law, because it gave too broad an interpretation of the concept of State control, inter alia, by classifying the amounts generated by the EEG surcharge as funds involving a State resource which can be assimilated to a levy, on the one hand, and in its finding of public control on the part of the Member State over those funds via the TSOs, on the other hand.47It follows that the first ground of appeal is admissible.– The first part of the first ground of appeal, alleging that the General Court erred in assessing the role played by the TSOs in the EEG surcharge system 48It must be noted that, for it to be possible to classify advantages as ‘aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be attributable to the State (judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 20 and the case-law cited).49In the first place, in order to assess whether a measure is attributable to the State, it is necessary to examine whether the public authorities were involved in the adoption of that measure (judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission, 67/85, 68/85 and 70/85, EU:C:1988:38, paragraph 35, of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraphs 17 and 18, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 21).50In the present case, the General Court held, in paragraph 40 of the judgment under appeal, that the support and compensation mechanisms at issue in the present case were established by the EEG 2012, with the result that they should be regarded as imputable to the State.51However, while the Federal Republic of Germany repeatedly raises the issue of the imputability of the measures at issue to the State in its appeal, it has not formally contested the finding thus made by the General Court or even argued that the General Court erred in law in that regard. Consequently, the arguments in that regard must, in any event, as the Commission has argued, be rejected as inadmissible.52In the second place, it follows from the settled case-law of the Court of Justice that the prohibition laid down in Article 107(1) TFEU covers both aid granted directly by the State or through State resources and aid granted by public or private bodies established or designated by the State with a view to administering the aid (judgments of 22 March 1977, Steinike & Weinlig, 78/76, EU:C:1977:52, paragraph 21; of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 23 and the case-law cited).53The distinction made in that provision between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58; and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 26).54EU law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 23, and of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraph 45).55It also follows from the case-law of the Court of Justice that it is not necessary to establish in every case that there has been a transfer of State resources for the advantage conferred on one or more undertakings to be capable of being regarded as State aid, within the meaning of Article 107(1) TFEU (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 36; and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 34).56Thus, the Court of Justice has held that a measure consisting, inter alia, in an obligation to purchase energy may fall within the definition of ‘aid’ even though it does not involve a transfer of State resources (judgments of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 19, and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 24).57Article 107(1) TFEU covers all the financial means by which public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Even if the sums corresponding to the aid measure concerned are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37; of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 25 and the case-law cited).58The Court of Justice has, more specifically, held that funds financed through compulsory charges imposed by the legislation of the Member State, managed and apportioned in accordance with the provisions of that legislation, may be regarded as State resources within the meaning of Article 107(1) TFEU even if they are managed by entities separate from the public authorities (judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 35, and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25).59The decisive factor, in that regard, consists of the fact that such entities are appointed by the State to manage a State resource and are not merely bound by an obligation to purchase by means of their own financial resources (see, to that effect, judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 74; of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraphs 30 and 35; and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraphs 26 and 30).60It must, however, also be noted that, for the purposes of establishing whether the advantage given to the beneficiary is a burden on the State budget, it is necessary to determine whether there exists a sufficiently direct link between, on the one hand, that advantage and, on the other hand, a reduction of that budget, or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, judgments of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 111, of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 109, of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 47, and of 16 April 2015, Trapeza Eurobank Ergasias, C‑690/13, EU:C:2015:235, paragraph 19).61It is in the light of those factors that it is appropriate to examine the first part of the first ground of appeal put forward by the Federal Republic of Germany, in which it claims that the General Court erred in law in finding, first, that the mechanism established by the EEG 2012 was connected with the budget of the Member State or of a public body, secondly, that the supervisory and control tasks assigned to the State authorities involved public control of EEG resources and, thirdly, that the EEG surcharge constituted a levy and the capping of that surcharge relinquishing of State resources.62It must be noted, in that the regard, that the General Court’s finding, set out in paragraph 128 of the judgment under appeal, that the Commission was correct in considering, in the decision at issue, that the EEG 2012 involved State resources, within the meaning of Article 107(1) TFEU, is based on the findings made in paragraphs 92 to 126 of that judgment and summarised in paragraph 127. In that paragraph, the General Court noted that the mechanisms resulting from the EEG 2012 derived, principally, from the implementation of a public policy, laid down by the State through the EEG 2012, to support producers of EEG electricity. It then indicated, first, that the funds generated by the EEG surcharge and administered collectively by the TSOs remained under the dominant influence of the public authorities, secondly, that the amounts in question, generated by the EEG surcharge, were funds which involve a State resource and can be assimilated to a levy and, thirdly, that it could be concluded from the powers and tasks given to the TSOs that they did not act freely and on their own behalf, but as administrators, assimilated to an entity executing a State concession, of aid granted through State funds.63However, the General Court’s statement that, in essence, the mechanisms resulting from the EEG 2012 derived from implementation of a public policy, laid down by the State, to support producers of EEG electricity merely repeats the conclusion, previously set out in paragraph 40 of the judgment under appeal, that those mechanisms must be regarded as imputable to the State. As is apparent from the case-law cited in paragraph 48 of the present judgment, that factor, although necessary for the purposes of classifying the advantages resulting from the mechanisms set up by the EEG 2012 as ‘aid’ within the meaning of Article 107(1) TFEU, is not sufficient in itself for such a classification to be accepted. It is necessary to demonstrate that the advantages in question are granted directly or indirectly through State resources.64It is therefore necessary to examine whether the General Court could, without erring in law, have found, on the basis of the three other factors referred to in paragraph 127 of the judgment under appeal and recalled in paragraph 62 of the present judgment, that the funds generated by the EEG surcharge constituted State resources.65As regards the claim that the amounts generated by the EEG surcharge are funds involving a State resource which can be assimilated to a levy, it must be recalled that, in point 105 of the decision at issue, the Commission classified that surcharge as a ‘special levy’.66The General Court noted, in paragraph 95 of the judgment under appeal, that ‘electricity suppliers in practice pass[ed] on the financial burden resulting from the EEG surcharge to the final customers’, that that passing on should have been regarded ‘as a consequence foreseen and organised by the German legislature’ and that the price supplement or additional charge that the final electricity consumers were ‘de facto’ required to pay’ constituted ‘a charge that is unilaterally imposed by the State in the context of its policy to support producers of EEG electricity [which] can be assimilated, from the point of view of its effects, to a levy on electricity consumption in Germany’.67It was on the basis of those findings that the General Court stated, in paragraph 96 of the judgment under appeal, with reference ‘by analogy’ to the judgment of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413, paragraph 66) that the amounts generated by the EEG surcharge were funds involving a State resource that can be assimilated to a levy; that statement was repeated in paragraph 127 of the judgment under appeal.68However, in paragraph 66 of the judgment of 17 July 2008, Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413), the Court of Justice, for the purposes of classifying a price supplement imposed on the electricity purchasers in question in that case, referred to paragraph 47 of that judgment. The finding set out in the latter paragraph, to the effect that the supplement in question ought to have been classified as a levy, was based, inter alia, on the fact, referred to by the Court of Justice in paragraph 45 of that judgment, that that price supplement constituted a charge unilaterally imposed by law, which the consumers were required to pay.69The findings of the General Court in paragraph 95 of the judgment under appeal did not permit an analogy to be drawn between that price supplement and the EEG surcharge.70As the General Court noted in paragraphs 7 to 9 of the judgment under appeal, the EEG surcharge represents any difference between the price obtained by the TSOs on the spot market of the EEG electricity exchange which they feed into their network and the financial burden imposed on them by the statutory obligation to pay for that electricity at the rates laid down by law, a difference that the TSOs are entitled to require the suppliers to the final customers to pay. By contrast, the EEG 2012 does not require those suppliers to pass on the amounts paid in respect of the EEG surcharge to the final customers.71The fact, noted by the General Court in paragraph 95 of the judgment under appeal, that ‘in practice’, the financial burden resulting from the EEG surcharge was passed on to the final customers and, consequently, could ‘be assimilated, from the point of view of its effects, to a levy on electricity consumption’ is not sufficient for it to be concluded that the EEG surcharge had the same characteristics as the electricity price supplement examined by the Court of Justice in the judgment of 17 July 2008. Essent Netwerk Noord and Others (C‑206/06, EU:C:2008:413).72Consequently, it is necessary to determine whether the other two factors, referred to by the General Court in paragraph 127 of the judgment under appeal and recalled also in paragraph 62 of the present judgment, allowed it nonetheless to conclude that the funds generated by the EEG surcharge constituted State resources, since they constantly remained under public control and were therefore available to the public authorities, within the meaning of the case-law cited in paragraph 57 of the present judgment. In that situation, it is irrelevant whether or not the EEG surcharge may be classified as a ‘levy’.73It must, however, be noted that the General Court failed to establish that the State held a power of disposal over the funds generated by the EEG surcharge or even whether it exercised public control over the TSOs responsible for managing those funds.74First, the General Court held that the funds generated by the EEG surcharge were not at the disposal of the State but solely under the dominant influence of the public authorities, in so far as they were collectively administered by the TSOs, which could be collectively assimilated to an entity executing a State concession. It merely found, in that regard, that the funds from the EEG surcharge were, first, managed for purposes in the general interest by the TSOs, in accordance with detailed rules defined beforehand by the legislature, and, secondly, allocated exclusively to the financing of the support and compensation schemes, to the exclusion of any other purpose.75Without it being necessary to rule on the merits of the classification as a State concession thus applied by the General Court, it must be held that, although it is true that the factors thus accepted indicate the legal origin of the support for EEG electricity implemented by the EEG 2012, they are, however, not sufficient to conclude that the State nevertheless held a power of disposal over the funds managed and administered by the TSOs.76In particular, the fact that the funds resulting from the EEG surcharge are allocated exclusively to the financing of the support and compensation schemes, by virtue of the provisions of the EEG 2012, does not mean that the State may dispose of them, within the meaning of the case-law cited in paragraph 57 of the present judgment. That legal principle of exclusive allocation of the funds resulting from the EEG surcharge tends rather to show, in the absence of any other evidence to the contrary, that the State was specifically not entitled to dispose of those funds, that it is say to decide on an allocation which differs from that laid down in the EEG 2012.77Secondly, the General Court failed to establish that the TSOs remained constantly under public control, or that they were subject to public control.78In that regard, it must be noted that the General Court, indeed, endeavoured to show, in paragraphs 105 to 110 of the judgment under appeal, that the TSOs, responsible for managing the system of aid for the production of EEG electricity, were monitored in several respects in that task.79First, the General Court found in paragraph 106 of the judgment, that the TSOs could not use the funds resulting from the EEG surcharge for purposes other than those laid down by the legislature. Next, it noted, in paragraph 107 of the judgment under appeal, that the TSOs were under an obligation to administer those funds in a specific joint account and added that compliance with that obligation was subject to control by State authorities, under Paragraph 61 of the EEG 2012, without, however, expressing a view on the nature and extent of that control. Finally, the General Court set out, in paragraphs 108 to 110 of the judgment under appeal, that the State authorities, namely, in the present case, the BNetzA, carried out strict monitoring at various levels of the activities of the TSOs, checking, inter alia, that the TSOs sold EEG electricity in accordance with Paragraph 37 of the EEG 2012 and established, set, published and charged electricity suppliers the EEG surcharge in compliance with the legislative and regulatory requirements.80While the factors thus accepted permit the conclusion that the public authorities monitor the proper implementation of the EEG 2012, they cannot, by contrast, permit the conclusion that there is public control over the funds generated by the EEG surcharge themselves.81The General Court, however, concluded its analysis, in paragraph 110 of the judgment under appeal, by finding that that monitoring, which fell within the general approach of the overall structure provided for in the EEG 2012, corroborated the conclusion, drawn from analysis of the tasks and obligations of the TSOs, that they did not act freely and on their own behalf, but as administrators of aid granted through State funds. It added that, even if that monitoring has no direct effect on the day-to-day administration of the funds in question, it was an additional factor designed to ensure that the TSOs’ activities do indeed remain circumscribed within the framework laid down in the EEG 2012. Finally, it noted in paragraph 118 of the judgment under appeal, that the fact that the State does not have actual access to the resources generated by the EEG surcharge, in the sense that they indeed do not pass through the State budget, did not affect the State’s dominant influence over the use of those resources and its ability to decide in advance, through the adoption of the EEG 2012, which objectives were to be pursued and how those resources in their entirety were to be used.82It is true that, as the General Court held in paragraph 125 of the judgment under appeal, and as stated in paragraph 58 of the present judgment, the Court of Justice has had occasion to hold that funds financed through compulsory charges imposed by the legislation of the Member State, managed and apportioned in accordance with the provisions of that legislation may be regarded as State resources within the meaning of Article 107(1) TFEU even if they are managed by entities separate from the public authorities (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 25).83However, the solution adopted by the Court of Justice in that case was based on two key factors, which are lacking in the present case.84The Court of Justice took care to point out, on the one hand, that the national legislation at issue in the case giving rise to that judgment had established a principle that the obligation to purchase would be covered in full by the French State, requiring the French State to discharge past debts and to cover in full the additional costs imposed on undertakings should the sum of the charges collected from final consumers of electricity be insufficient to cover those additional costs (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 26). In doing so, the Court of Justice found that there was a link between the advantage in question and a reduction, at the very least potential, in the State budget.85In paragraphs 28 to 33 of the judgment of 19 December 2013, Association Vent De Colère! and Others (C‑262/12, EU:C:2013:851), the Court of Justice held, on the other hand, that the sums intended to offset the additional costs arising from the obligation to purchase imposed on the undertakings were entrusted to the Caisse des dépôts et consignations [a French public long-term investment group], that is to say a public law entity appointed by the French State to provide administrative, financial and accounting management services for the Commission de régulation de l’énergie (French energy regulation authority), the independent administrative authority responsible for ensuring the proper functioning of the market for electricity and gas in France, with the result that those sums must be regarded as remaining under public control.86It is therefore necessary to conclude that nor did the other factors referred to by the General Court in paragraph 127 of the judgment permit the conclusion that the funds generated by the EEG surcharge constituted State resources.87It follows from all the foregoing considerations that the first part of the first ground of appeal put forward by the Federal Republic of Germany is well founded and that, without it being necessary to examine the second part of the first ground of appeal and the other two grounds of appeal, the judgment under appeal must be set aside. The action before the General Court 88In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits.89In the present case, the Court has the necessary information to give final judgment on the action for annulment of the decision at issue brought by the Federal Republic of Germany before the General Court.90In that regard, it is sufficient to note that, for the reasons set out in paragraphs 48 to 87 of the present judgment, the Commission has failed to establish that the advantages provided for by the EEG 2012, namely the scheme supporting the production of electricity from renewable energy sources and mine gas financed by the EEG surcharge and the special compensation scheme reducing that surcharge for energy-intensive users involved State resources and therefore constituted State aid within the meaning of Article 107(1) TFEU.91It is therefore necessary to uphold the third plea in law raised by the Federal Republic of Germany in the context of its action brought at first instance before the General Court, alleging that there was no advantage financed through State resources, and to annul the decision at issue. Costs 92Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.93Under Article 138(1) of those rules, which applies to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.94Since the Federal Republic of Germany has applied for costs and the Commission has been unsuccessful, the latter must be ordered to pay the costs relating to both the appeal proceedings and the proceedings at first instance.On those grounds, the Court (Third Chamber) hereby: 1. Sets aside the judgment of the General Court of the European Union of 10 May 2016, Germany v Commission (T‑47/15, EU:T:2016:281); 2. Annuls Commission Decision (EU) 2015/1585 of 25 November 2014 in State aid proceedings SA. 33995 (2013/C) (ex 2013/NN) [implemented by Germany for the support of renewable electricity and energy-intensive users]; 3. Orders the European Commission to pay the costs relating to both the appeal proceedings and the proceedings at first instance. [Signatures]( *1 ) Language of the case: German. | bc6b2-846085a-4645 | EN |
Consumers’ right of withdrawal from online purchases applies to mattresses from which the protective film has been removed after delivery | 27 March 2019 ( *1 )(Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(k) and Article 16(e) — Distance contract — Right of withdrawal — Exceptions — Concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ — Mattress whose protective seal has been removed by the consumer after delivery)In Case C‑681/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 15 November 2017, received at the Court on 6 December 2017, in the proceedings slewo — schlafen leben wohnen GmbH v Sascha Ledowski, THE COURT (Sixth Chamber),composed of C. Toader, President of the Chamber, A. Rosas and M. Safjan (Rapporteur), Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:–slewo — schlafen leben wohnen GmbH, by F. Buchmann, Rechtsanwalt,Mr Ledowski, by H.G. Klink, Rechtsanwalt,the Belgian Government, by P. Cottin and J. Van Holm, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and by P. Garofoli, avvocato dello Stato,the European Commission, by M. Kellerbauer and N. Ruiz García, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 19 December 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 6(1)(k) and Article 16(e) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).2The request has been made in proceedings between slewo — schlafen leben wohnen GmbH (‘slewo’) and Mr Sascha Ledowski, concerning his exercise of his right of withdrawal in relation to a mattress purchased on slewo’s website. Legal context 3According to recitals 3, 4, 7, 34, 37, 47 and 49 of Directive 2011/83:‘(3)Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through the measures adopted pursuant to Article 114 thereof.(4)... The harmonisation of certain aspects of consumer distance … contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.…(7)Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders … Furthermore consumers should enjoy a high common level of protection across the Union.(34)The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance … contract …(37)Since in the case of distance sales, the consumer is not able to see the goods before concluding the contract, he should have a right of withdrawal. For the same reason, the consumer should be allowed to test and inspect the goods he has bought to the extent necessary to establish the nature, characteristics and the functioning of the goods. …(47)Some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to establish the nature, characteristics and the functioning of the goods. In this case the consumer should not lose the right to withdraw but should be liable for any diminished value of the goods. In order to establish the nature, characteristics and functioning of the goods, the consumer should only handle and inspect them in the same manner as he would be allowed to do in a shop. For example, the consumer should only try on a garment and should not be allowed to wear it. Consequently, the consumer should handle and inspect the goods with due care during the withdrawal period. The obligations of the consumer in the event of withdrawal should not discourage the consumer from exercising his right of withdrawal.(49)Certain exceptions from the right of withdrawal should exist … for distance … contracts. A right of withdrawal could be inappropriate for example given the nature of particular goods or services. ...’4Article 1 of that directive, entitled ‘Subject matter’, provides:‘The purpose of this Directive is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders.’5Article 6 of the directive, entitled ‘Information requirements for distance and off-premises contracts’, provides in paragraph 1:‘Before the consumer is bound by a distance … contract, … the trader shall provide the consumer with the following information in a clear and comprehensible manner:(k)where a right of withdrawal is not provided for in accordance with Article 16, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal;…’6Article 9 of the directive, entitled ‘Right of withdrawal’, states in paragraph 1:‘Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14.’7Under Article 12 of the directive, entitled ‘Effects of withdrawal’:‘The exercise of the right of withdrawal shall terminate the obligations of the parties:(a)to perform the distance … contract …8Article 13 of the directive, entitled ‘Obligations of the trader in the event of withdrawal’ provides in paragraph 1:‘The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract in accordance with Article 11.9Article 14(2) of Directive 2011/83, entitled ‘Obligations of the consumer in the event of withdrawal’, states:‘The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. …’10Article 16 of that directive, entitled ‘Exceptions from the right of withdrawal’, is worded as follows:‘Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance … contracts as regards the following:(e)the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery; The dispute in the main proceedings and the questions referred for a preliminary ruling 11slewo is an online trader which sells, inter alia, mattresses.12On 25 November 2014 Mr Ledowski ordered, for private purposes, a mattress from slewo’s website, at a price of EUR 1 094.52. The General Terms and Conditions of Sale were printed on the invoice issued by slewo and contained inter alia a ‘notice of withdrawal for consumers’ worded as follows:‘We will bear the costs of returning the goods. … Your right of withdrawal shall cease prematurely in the following cases: in the case of contracts for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they were unsealed after delivery’.13When it was supplied, the mattress ordered by Mr Ledowski was covered with a protective film, which he subsequently removed.14By email of 9 December 2014, Mr Ledowski informed slewo that he wished to return the mattress and asked slewo to arrange the return transport.15Since that return transport was not arranged by slewo, Mr Ledowski assumed the transport costs himself, in the sum of EUR 95.59.16Mr Ledowski brought an action before the Amtsgericht Mainz (Local Court, Mainz, Germany) seeking reimbursement by slewo of the purchase price and the transport costs of the mattress, in the total amount of EUR 1 190.11 euros, plus interest and legal costs.17By judgment of 26 November 2015 of the Amtsgericht Mainz (Local Court, Mainz), that action was allowed.18By judgment of 10 August 2016, the Landgericht Mainz (Regional Court, Mainz, Germany) upheld that decision on appeal.19In those circumstances, slewo brought an appeal on a point of law (Revision) before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany).20The referring court takes the view that Article 16(e) of Directive 2011/83 excludes the right of withdrawal only if, once unsealed, the goods concerned have ceased definitively to be saleable for health protection or hygiene reasons, as is the case in particular for certain cosmetic or personal care products, such as toothbrushes.21In that connection, the referring court recalls that, in accordance with the settled case-law of the Court, provisions which derogate from a right conferred by EU law, such as the right of withdrawal at issue in the main proceedings, must be interpreted strictly.22The referring court further takes the view that, unlike hygiene items in the narrow sense, a mattress returned by a consumer, after having been unsealed, has not ceased definitively to be saleable. That conclusion follows in particular from the use made of mattresses in the hotel sector; the existence, particularly on the internet, of a market for second-hand mattresses; and the possibility of cleaning used mattresses.23The referring court takes the view that, if Article 16(e) of Directive 2011/83 ought to be interpreted as meaning that goods which can come into direct contact with the human body, such as mattresses, when they are used as intended, even if the trader is able to render them saleable once again by using appropriate cleaning methods, are amongst the goods which cannot be returned for health protection or hygiene reasons referred to by the provision, that raises the question of which conditions the packaging of such goods must fulfil, and whether it must be clear from the specific circumstances, in particular the affixing of the word ‘sealed’ to the packaging, that it is not mere packaging for transportation purposes, but rather that the product has been sealed for health protection or hygiene reasons.24Furthermore, the referring court considers that Article 6(1)(k) of Directive 2011/83 does not provide sufficient clarification as to the scope of the information which the trader is required to furnish to the consumer, before the latter is bound by a distance contract, so far as concerns the circumstances in which the consumer loses his right of withdrawal, in accordance with Article 16(e) of that directive.25In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Should Article 16(e) of the [Directive 2011/83] be interpreted as meaning that the goods referred to there which are not suitable for return due to health protection or hygiene reasons include goods (such as, for example, mattresses) which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable (cleaning) measures by the trader?(2)If the first question is answered in the affirmative:What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?and(b)Does the information that the trader has to give pursuant to Article 6(1)(k) of [Directive 2011/83] before the contract becomes binding have to be provided in such a way that the consumer is informed, with specific reference to the article to be purchased (here a mattress) and the seal that is applied, that he will lose the right of withdrawal if he removes the seal?’ Consideration of the questions referred The first question 26By its first question, the referring court is asking, in essence, whether Article 16(e) of Directive 2011/83 should be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, comes within the scope of the concept ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery’ within the meaning of that provision.27As a preliminary point, it should be recalled, in the first place, that, in accordance with Article 9(1) of Directive 2011/83, save where the exceptions provided for in Article 16 of that directive apply, the consumer is to have a period of 14 days to withdraw from a distance contract, without, inter alia, giving any reason.28In the second place, it should be observed that it is clear from Article 12(a) of that directive that the exercise of the right of withdrawal terminates the obligations of the parties to perform the distance contract.29Article 16(e) of Directive 2011/83 provides for an exception to the right of withdrawal, with regard to distance contracts, in connection with sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.30However, the wording of that provision does not provide any detail as to the exact scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery’, allowing it to be determined with certainty which goods come within the scope of that concept and, in the present case, whether an item such as a mattress from which the protective film has been removed by the consumer after delivery comes within that same scope.31Accordingly, for the purposes of interpreting Article 16(e) of Directive 2011/83, account must be taken not only of the wording of that provision but also its context and the objective pursued by the rules of which it forms part (see, to that effect, judgments of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 27, and of 13 September 2018, Starman, C‑332/17, EU:C:2018:721, paragraph 23).32In that connection, as is clear from Article 1 of Directive 2011/83, read in the light of recitals 3, 4 and 7 thereof, that directive aims to provide a high level of consumer protection. Furthermore, in EU policies, the protection of consumers — who are in a weaker position in relation to sellers or suppliers, inasmuch as they must be deemed to be less informed, economically weaker and legally less experienced than the opposite party — is enshrined in Article 169 TFEU and Article 38 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgments of 2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main, C‑568/15, EU:C:2017:154, paragraph 28, of 4 October 2018, Kamenova, C‑105/17, EU:C:2018:808, paragraph 34, and of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 34).33The right of withdrawal is designed to protect the consumer in the particular situation of distance sales, in which he is not actually able to see the product or ascertain the nature of the service provided before concluding the contract. The right of withdrawal is therefore intended to offset the disadvantage for the consumer resulting from a distance contract by granting him an appropriate period for reflection during which he can examine and test the goods acquired (judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 45).34In that connection, Article 16(e) of Directive 2011/83, which constitutes an exception to the right of withdrawal, is, as a provision of EU law which restricts the rights granted for reasons relating to protection, to be interpreted strictly (see, to that effect, judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 77).35It is in the light of those considerations that the first question must be answered.36In that regard, recital 49 of Directive 2011/83 states that an exception to the right of withdrawal may be justified by the nature of particular goods.37It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.38Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.39In those circumstances, allowing the right for the consumer to exercise his right of withdrawal by returning such an item, the packaging of which has been unsealed, to the trader would be contrary to the intention of the EU legislature, as expressed in recital 4 of Directive 2011/83, according to which the directive is aimed at striking the right balance between a high level of consumer protection and the competitiveness of enterprises.40Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.41It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.42First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.43Second, with respect to the right of withdrawal, a mattress may be equated with a garment.44In that connection, as is clear from recitals 37 and 47 of Directive 2011/83, the intention of the EU legislature was to allow the purchaser of a garment, in the context of a distance sale, to try it on in order to ‘establish the nature, characteristics and the functioning’ and, where necessary, after trying the garment on, exercise his right of withdrawal by returning it to the trader.45It is common ground that many garments, when they are tried on in accordance with their intended purpose, may come into contact with the human body — which cannot be ruled out in the case of mattresses — without being subject in practice to requirements in terms of special protection in order to prevent such contact during trying on.46Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.47The fact remains that, in accordance with Article 14(2) of Directive 2011/83, read in the light of recital 47 thereof, the consumer is liable for any diminished value of goods resulting from handling other than that necessary in order to establish the nature, characteristics and functioning of the goods, without the consumer thereby being deprived of his right of withdrawal (see, by analogy, judgment of 3 September 2009, Messner, C‑489/07, EU:C:2009:502, paragraph 29).48In the light of the foregoing, the answer to the first question is that Article 16(e) of Directive 2011/83 must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision. The second question 49Given the answer to the first question, there is no need to answer the second question. Costs 50Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Sixth Chamber) hereby rules: Article 16(e) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision. [Signatures]( *1 ) Language of the case: German. | b0724-e95a12a-47d3 | EN |
Differences of treatment based on language are, in principle, not allowed in the procedures for selecting staff for the EU institutions. | 26 March 2019 ( *1 )(Actions for annulment — Rules on languages — Selection procedure for contract staff — Call for expressions of interest — Drivers — Function group I — Knowledge of languages — Restriction of the choice of language 2 of the selection procedure to English, French and German — Language of communication — Regulation No 1 — Staff Regulations — Conditions of Employment of Other Servants — Discrimination based on language — Justification — Interests of the service)In Case C‑377/16,ACTION for annulment under Article 263 TFEU, brought on 7 July 2016, Kingdom of Spain, represented by M.J. García-Valdecasas Dorrego and M.A. Sampol Pucurull, acting as Agents,applicant,v European Parliament, represented by D. Nessaf, C. Burgos and M. Rantala, acting as Agents,defendant,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, M. Vilaras, E. Regan, F. Biltgen, K. Jürimäe and C. Lycourgos, Presidents of Chambers, A. Rosas (Rapporteur), E. Juhász, J. Malenovský, E. Levits and L. Bay Larsen, Judges,Advocate General: E. Sharpston,Registrar: L. Carrasco Marco, administrator,after hearing the Opinion of the Advocate General at the sitting on 25 July 2018,gives the following Judgment 1By its action, the Kingdom of Spain requests the annulment of the Call for Expressions of Interest Contract Staff — Function Group I — Drivers (F/M) — EP/CAST/S/16/2016 (OJ 2016 C 131 A, p. 1, ‘the call for expressions of interest’). Legal context Regulation No 1/58, 2Article 1 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (OJ 2013 L 158, p. 1) (‘Regulation No 1/58’), provides:‘The official languages and the working languages of the institutions of the Union shall be Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.’3Article 2 of that regulation provides:‘Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the [European Union] may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language.’4Under Article 6 of that regulation:‘The institutions of the [European Union] may stipulate in their rules of procedure which of the languages are to be used in specific cases.’ The Staff Regulations and Conditions of Employment of Other Servants 5The Staff Regulations of European Union Officials (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) are established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition II, 1968(I), p. 30), as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15). Staff Regulations 6Title I of the Staff Regulations, entitled ‘General Provisions’, includes Articles 1 to 10c thereof.7Article 1(d) of the Staff Regulations states:‘1. In the application of these Staff Regulations, any discrimination based on any ground such as … language … shall be prohibited.…6. While respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy. ...’8Title III of the Staff Regulations is entitled ‘Career of officials’.9Chapter 1 of Title III, entitled ‘Recruitment’, contains Articles 27 to 34 of the Staff Regulations; Article 28 thereof states:‘An official may be appointed only on condition that:(f)he produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another language of the Union to the extent necessary for the performance of his duties.’10In Chapter 3 of Title III, entitled ‘Reports, advancement to a higher step and promotion’, Article 45(2) of the Staff Regulations provides that:‘Officials shall be required to demonstrate before their first promotion after recruitment the ability to work in a third language among those referred to in Article 55(1) of the Treaty on European Union. ...’11Annex III to the Staff Regulations, relating to competition procedures, provides, inter alia, the nature and kind of the competition, the type of duties and tasks involved in the posts to be filled, and the language skills which may be required by that type of employment. CEOS 12Title I of the CEOS, entitled ‘General provisions’, includes Articles 1 to 7a of those conditions.13In accordance with Article 1 of the CEOS, those conditions apply to all servants engaged under contract by the Union, which, in particular, confers on them the status of ‘contract staff’.14Article 3a of the CEOS provides inter alia:‘1. For the purposes of these Conditions of Employment, “contract staff” means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:(a)in an institution to carry out manual or administrative support service tasks,…’15Title IV of the CEOS, entitled ‘Contract staff’, includes Articles 79 to 119 of those conditions.16In Chapter 1 of that title, entitled ‘General provisions’, Article 80 of the CEOS is worded as follows:‘1. Contract staff shall be subdivided into four function groups corresponding to the duties to be performed. Each function group shall be subdivided into grades and steps.2. The types of duties and corresponding function groups shall be as shown in the following table:Function groupGradesDutiesIV13 to 18Administrative, advisory, linguistic and equivalent technical tasks, performed under the supervision of officials or temporary staff.III8 to 12Executive tasks, drafting, accountancy and other equivalent technical tasks, performed under the supervision of officials or temporary staff.II4 to 7Clerical and secretarial tasks, office management and other equivalent tasks, performed under the supervision of officials or temporary staff.I1 to 3Manual and administrative support service tasks, performed under the supervision of officials or temporary staff.3. Based on this table the authority [empowered to conclude contracts of employment] of each institution, agency or entity referred to in Article 3a may, after consulting the Staff Regulations Committee, define in more detail the powers attaching to each type of duties.4. Articles 1d … of the Staff Regulations shall apply by analogy.17Article 82 of the CEOS, which appears in Chapter 3 of Title IV, entitled ‘Conditions of engagement’, provides:‘…2. Recruitment as a member of the contract staff shall require at least:in function group I, successful completion of compulsory education;3. A member of the contract staff may be engaged only on condition that he:(e)produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another language of the Union to the extent necessary for the performance of his duties.5. The European Communities Personnel Selection Office [(EPSO)] shall, at their request, provide assistance to the different institutions with a view to the selection of contract staff, in particular by defining the contents of the tests and organising the selection procedures. [EPSO] shall ensure the transparency of selection procedures for contract staff. The selection procedure at issue 18On 14 April 2016, the European Parliament issued a call for expressions of interest with a view to establishing a database of candidates for recruitment as contract staff members to act as drivers. It is apparent from the introductory part of that call that the total number of posts that may become available was approximately 110 and that they would be based ‘mainly in Brussels’ (Belgium).19Section II of the call for expressions of interest, entitled ‘Job description’, provides that ‘under the supervision of an official or temporary staff member, the contract staff member [recruited] will be responsible for performing duties as a driver’ and states that:‘… for guidance, those duties will include:–providing transport services for eminent persons and officials and other staff of the European Parliament, mainly in Brussels, Luxembourg [(Luxembourg)] and Strasbourg [(France)], and also in other Member States and third countries,providing transport services for visitors (members of the diplomatic corps and other eminent persons),transporting goods and documents,transporting mail,ensuring that the vehicle and its equipment are used properly,guaranteeing the safety of persons and goods transported, in keeping with the highway code of the country in question,if necessary, loading and unloading vehicles,if necessary, carrying out administrative and logistical support work.’20Section IV of the call for expressions of interest, entitled ‘Eligibility’, provides that recruitment as contract staff is subject to the fulfilment of several conditions, including knowledge of two official languages of the Union. In that regard candidates must have, on the one hand, a ‘thorough knowledge (at least level C1 ...) of one of the 24 official languages of the European Union’ as ‘language 1’ of the selection procedure and, on the other hand, a ‘satisfactory knowledge (level B2) of English, French or German’ as ‘language 2’ of the selection procedure (‘language 2 of the selection procedure’), on the basis that ‘language 2 must be different from language 1’.21The Common European Framework of Reference for Languages, issued by the Council of Europe (Recommendation of the Committee of Ministers of the Council of Europe No R (98) 6 of 17 March 1998, ‘the CEFR’), sets out six levels of language skills, ranging from A1 to C2. It includes various tables, one of which provides an overview of the common levels of knowledge. Level B2, which corresponds to the linguistic knowledge of an ‘independent user’, is presented in the CEFR as follows:‘Can understand the main ideas of complex text on both concrete and abstract topics, including technical discussions in his/her field of specialisation. Can interact with a degree of fluency and spontaneity that makes regular interaction with native speakers quite possible without strain for either party. Can produce clear, detailed text on a wide range of subjects and explain a viewpoint on a topical issue giving the advantages and disadvantages of various options.’22The grounds for restricting the choice of language 2 of the selection procedure only to English, French and German are set out in Section IV of the call for expressions of interest as follows:‘Following the judgment handed down by the Court of Justice of the European Union (Grand Chamber) [of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752),] the European Parliament must state the reasons for limiting the choice of the second language in the context of this call for expressions of interest to a small number of official EU languages.Candidates are thus informed that the three second-language options for this call for expressions of interest, i.e. English, French and German, have been laid down in the interests of the service, which require newly recruited staff to be immediately operational and able to communicate effectively in their daily work.It has long been the practice to use mainly English, French, and German for internal communication in the European Parliament, and these are also the languages most often needed when communicating with the outside world and in performing day-to-day work. Furthermore, in staff reports for 2013, 92%, 84% and 56% of all staff stated that they had a satisfactory knowledge of English, French and German respectively. For no other official language did that figure exceed 50%.Therefore, in balancing the interests of the service and the needs and abilities of candidates, and given the specific area in which this selection procedure is being held, the European Parliament is entitled to require knowledge of one of those three languages to ensure that, whatever their first official language, all candidates are proficient in at least one of them.In addition, in the interests of equality of treatment, all candidates, even if they have one of those three languages as their first official language, are required to have a satisfactory knowledge of a second language, which must be one of those three languages.The assessment of specific skills enables the European Parliament to judge whether the candidates can be immediately operational in an environment similar to that in which they will be required to work.’23Pursuant to Section VI of the call for expressions of interest, entitled ‘How to apply and closing date for applications’, candidates are to submit their applications using an electronic application form available on the EPSO website. In accordance with the indications given in Section VII of that call under the heading ‘Stages in the selection procedure’, the selection is made on the basis of qualifications and it is specified, in that regard, that ‘selection will be solely on the basis of the information provided by candidates using the “Talent screener” tab on the application form’.24It is apparent from Section VIII of the call for expressions of interest, entitled ‘Results of the selection procedure’, that, at the end of the selection procedure, the 300 candidates who obtained, in accordance with the relevant criteria, the highest number of points are entered in the database set up for that purpose. Under Section IX of that call, entitled ‘Recruitment’, it is recalled that inclusion in the database does not constitute a guarantee of being offered a job. In the event that recruitment of candidates registered in the database is being contemplated, the call for expressions of interest shall provide in particular:‘If a contract becomes available, the recruiting services will consult the database and issue invitations to those candidates whose profiles most closely match the requirements of the post in question.These candidates will sit an interview designed to determine whether their profile matches the requirements of the post available. At that interview their knowledge of languages 1 and 2 will also be assessed. Knowledge of other languages which candidates have stated that they know may also be tested.Depending on the outcome of the interview and of any theoretical and/or practical tests held, candidates may be offered a post.’25Successful candidates will be recruited as contract agents (‘function group I’) and contracts will be drawn up in accordance with Articles 3a, 84 and 85 of the CEOS. They will be for a period of one year and may be renewed for a period of one year before possibly being renewed a second time for an indefinite period.26Section X of the call for expressions of interest, entitled ‘Communication’, provides:‘The European Parliament will contact candidates via their EPSO accounts or by email. Candidates must check their EPSO accounts and their email at regular intervals — at least twice a week — to keep track of the progress of the procedure and to verify the information relevant to their applications. If, as a result of a technical problem, you are unable to check this information, you must inform the European Parliament immediately by sending an email to the mailbox for the procedure:ACdrivers2016@ep.europa.euPlease use that mailbox for all correspondence relating to the procedure.’ Forms of order sought by the parties 27The Kingdom of Spain asks the Court to annul the call for expressions of interest and to order the Parliament to pay the costs. That annulment should also lead to the annulment of the database created pursuant to that call.28The Parliament asks the Court to dismiss the action as manifestly unfounded and to order the Kingdom of Spain to pay the costs. The action 29In support of its action, the Kingdom of Spain relies on four pleas in law.30The first plea alleges an unlawful restriction on the choice of languages that may be used for communications between candidates and EPSO to English, French and German only.31The second plea alleges misinterpretation of the language requirements for contract staff laid down in the CEOS.32The third and fourth pleas, which will be dealt with together, concern the lawfulness of restricting the choice of language 2 of the selection procedure to English, French and German. The first plea, relating to the restriction of the choice of language of communication to English, French and German Arguments of the parties 33The Kingdom of Spain claims, principally, that the call for expressions of interest infringes Articles 1 and 2 of Regulation No 1/58, Article 22 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and Article 1d(1) and (6) of the Staff Regulations, by restricting to English, French and German the languages that candidates may use to communicate with the organisers of the selection procedure in question. The Kingdom of Spain maintains in that regard that the applications submitted in response to the call for expressions of interest constitute ‘documents which … a person subject to the jurisdiction of a Member State sends to institutions’ within the meaning of Article 2 of Regulation No 1/58 and, therefore, must, in accordance with that article, be capable of being drafted and submitted to the institution concerned, in this case the Parliament, in any one of the official languages selected by the sender.34In the alternative, the Kingdom of Spain takes the view that restricting the choice of languages of communication to English, French and German constitutes an infringement of Article 22 of the Charter, concerning the Union’s respect for linguistic diversity, and of Article 1d(1) and (6) of the Staff Regulations, under which any discrimination, such as discrimination on grounds of language, is prohibited unless justified in accordance with that provision. According to the Kingdom of Spain, candidates who cannot complete the application form available on the EPSO website or communicate with Parliament using their mother tongue are at a disadvantage compared to candidates whose mother tongue is English, French or German. It argues that there is no valid reason to justify such discrimination on the basis of language.35The Parliament disputes these arguments by stating that the call for expressions of interest does not require the use of any particular language to complete the electronic application form on the EPSO website. Nor does the call limit the use of languages of communication between candidates and EPSO or the Parliament. According to the latter, the fact that, for technical reasons, the application form was only available in English, French and German does not mean that candidates must complete it in one of those three languages. The Parliament further contends that applications have been drafted in a language other than English, French or German, and that they were assessed by the selection committee with the assistance, where appropriate, of language assessors. In those circumstances, the Parliament takes the view that it has fully complied with its obligation to communicate with candidates in a language freely chosen by them. Findings of the Court 36In accordance with Article 2 of Regulation No 1/58, which corresponds in substance to the fourth paragraph of Article 24 TFEU and Article 41(4) of the Charter, documents sent to the institutions of the European Union by a person subject to the jurisdiction of a Member State may be drafted in any one of the official languages referred to in Article 1 of that regulation selected by the sender, and the institution’s reply must be drafted in that language. As an essential component of respect for the linguistic diversity of the Union, the importance of which is recalled in the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter, the right for those persons to choose, from among the official languages of the Union, the language to be used in exchanges with the institutions, such as the European Parliament, is fundamental in nature.37However, as is apparent from the case-law of the Court, it cannot be inferred from the European Union’s obligation to respect linguistic diversity that there is a general principle of law entitling each person to have everything likely to affect his or her interests drafted in his or her language in all circumstances, and that the institutions are required, without any derogation being permissible, to use all the official languages in all situations (see, to that effect, judgments of 9 September 2003, Kik v OHIM, C‑361/01 P, EU:C:2003:434, paragraph 82; of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 88; and of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 203).38In the specific context of EU staff selection procedures, the Court has already ruled, in paragraph 88 of the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), that restrictions may be made, pursuant to Article 1d(6) of the Staff Regulations, to the prohibition of discrimination on grounds of language. Therefore, without prejudice to the obligation, recalled in particular in paragraph 71 of that judgment, to publish notices of competitions in the Official Journal of the European Union, in accordance with Article 1(2) of Annex III to the Staff Regulations, read in conjunction with Article 5 of Regulation No 1/58, in all the official languages of the Union, the institutions may, where appropriate, provide for limitations on the use of official languages in that context, provided that such limitations are, in accordance with Article 1d(6), objectively and reasonably justified by a legitimate objective of general interest in the framework of staff policy and are proportionate to the aim pursued.39It follows from paragraph 88 of the judgment of 27 November 2012, Italy v Commission, (C‑566/10 P, EU:C:2012:752) that, in the context of EU staff selection procedures, the institutions cannot be required to comply with obligations going beyond the requirements laid down in Article 1d of the Staff Regulations.40Consequently, the question of the lawfulness of restricting the languages which candidates may use to communicate with EPSO and the Parliament to English, French and German, which is the subject of the present action, must be examined in the light of Article 1d of the Staff Regulations, applicable to procedures for the selection of contract staff pursuant to Article 80(4) of the CEOS.41Since the Parliament disputes the existence of a restriction of the choice of the language of communication between EPSO and candidates to English, French and German, it is necessary, first of all, to examine the Kingdom of Spain’s argument that that restriction constitutes a difference of treatment based on language contrary to Article 1d of the Staff Regulations, in order to verify whether, in the light of the arguments put forward by both parties, the call for expressions of interest does in fact lay down such a restriction.42In accordance with the indications set out in the call for expressions of interest, the selection procedure referred to therein is carried out solely on the basis of the answers provided by the candidate to the questions in the ‘talent screener’ tab appearing in the electronic application form available on the EPSO website. Thus, it follows from that call that applications had to be submitted online, using that electronic application form.43In that regard, it is not disputed that the electronic application form for the call for expressions of interest was only available on the EPSO website in English, French and German. However, while the Kingdom of Spain infers from the limited number of languages in which the form is available a de facto restriction on the languages that may be used to complete the form, the Parliament maintains that, in so far as that call did not set out any binding provision as to the language to be used to complete the form, candidates remained free to complete it using, in addition to those three languages, other official languages of the Union.44In the absence of any indication in the call for expressions of interest that the electronic application form, available on the EPSO website only in English, French and German, could be completed in any of the official languages of the Union, candidates were reasonably entitled to assume that it was mandatory to complete the form in one of those three languages. In those circumstances, it cannot be ruled out that candidates may have been effectively deprived of the possibility of using the official language of the Union of their choice when submitting their applications.45In view of that restriction on the choice of the language of communication, it is necessary to examine, secondly, whether that restriction created a difference in treatment between candidates, contrary to Article 1d of the Staff Regulations.46In that regard, candidates who, because of the unavailability of the application form in all of the official languages of the Union, concluded that they should complete the application form in English, French or German and who therefore completed their application in one of those languages, even though none of them corresponded to the official language of the Union in which they were most proficient, may have been at a disadvantage, in terms of both a perfect understanding of the form and of the drafting of their application, compared with candidates whose preferred official language was one of those three languages.47Thus, the unavailability of the application form on the EPSO website in all of the official languages of the Union meant that candidates who wished to use an official language other than English, French or German in order to complete the form and therefore to submit an application were, in so far as they were deprived of the opportunity to use the official language in which they most proficient, treated less favourably than candidates whose preferred official language was one of those three languages. This resulted in a difference of treatment based on language, which is in principle prohibited by Article 1d(1) of the Staff Regulations.48On the other hand, in view of the information provided by the Kingdom of Spain, it does not appear that candidates were not able to communicate, if necessary, by email with the Parliament or EPSO in the official language of their choice. The Kingdom of Spain’s plea concerning the restriction on the languages of communication cannot therefore be upheld with regard to such communications. That said, the difference in treatment noted in the previous paragraph, concerning the languages that may be used in order to complete the application form and therefore to submit an application, cannot be offset by the possibility for candidates to communicate in the official language of their choice, if necessary by email, with the Parliament or with EPSO about other aspects of the selection procedure in question.49As pointed out in paragraph 38 of the present judgment, it follows from Article 1d(6) of the Staff Regulations that a difference of treatment based on language cannot be permitted when applying those Staff Regulations unless it is objectively and reasonably justified and meets legitimate objectives in the general interest in the framework of staff policy.50Since the Kingdom of Spain has demonstrated that the call for expressions of interest gives rise to a difference of treatment which may constitute discrimination based on language within the meaning of Article 1d(1) of the Staff Regulations, it was for the Parliament to show that that restriction was justified.51However, in the present case, the Parliament did not provide, either in the call for expressions of interest, in its written submissions or at the hearing before the Court, any grounds capable of demonstrating the existence of a legitimate objective of general interest in the framework of staff policy requiring a difference in treatment, such as that noted in paragraph 47 of the present judgment, concerning the languages to be used in order to complete the electronic application form. It follows that the Parliament has failed to show that the restriction on the choice of language of communication resulting from the call for expressions of interest was justified.52Consequently, the first plea in law is well founded. The second plea in law, alleging infringement of Article 82 of the CEOS 53By the first part of its second plea, the Kingdom of Spain submits that the requirement, provided for in the call for expressions of interest, of a satisfactory knowledge of a second official language of the Union constitutes a breach of Article 82 of the CEOS, since knowledge of a second language is not necessary for the performance of the duties which the selected candidates will be required to perform. It is apparent from Article 82(3)(e) of the CEOS that an administration may require a candidate for a contract staff post, in addition to a thorough knowledge of one of the official languages of the Union, to have a satisfactory knowledge of a specific second language only on account of the particular nature of the duties to be performed. In the present case, a satisfactory knowledge of a second language is not justified by the performance of the tasks required of the contract agents to be recruited. The Kingdom of Spain recalls in that regard that Article 80 of the CEOS defines the tasks assigned to Group I contract staff as manual and administrative support service tasks, performed under the supervision of officials or temporary staff. By the second part of that plea, the Kingdom of Spain submits that, assuming that a candidate for such tasks may be required to have a thorough knowledge of an official language and a satisfactory knowledge of a second language, the B2 level of knowledge, within the meaning of the CEFR, required in that call for expressions of interest for that second language, is not justified.54In response, the Parliament contends that Article 82(3)(e) of the CEOS provides that a satisfactory knowledge of a second official language of the Union is a requirement under the CEOS.55According to Article 82(3)(e) of the CEOS, ‘a member of the temporary staff may be engaged only on condition that … he produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another language of the Union to the extent necessary for the performance of his duties’. By the first part of its second plea in law, the Kingdom of Spain submits that that provision requires candidates for a contract staff post to have knowledge of a second language of the Union only where the duties they are required to perform dictate it, which is not the case here.56It is therefore necessary to determine whether the language requirements laid down in Article 82(3)(e) of the CEOS systematically require candidates for contract agent posts to have a thorough knowledge of one of the official languages of the Union and a satisfactory knowledge of another official language of the Union.57In that regard, it should be recalled that Article 28(f) of the Staff Regulations similarly provides that ‘an official may be appointed only on condition that … he produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another language of the Union to the extent necessary for the performance of his duties’. In accordance with Article 45(2) of the Staff Regulations, officials are also required to demonstrate, before their first promotion after recruitment, their ability to work ‘in a third language among those referred to in Article 55(1) TEU’, namely among the official languages of the Union. It necessarily follows therefrom that the condition relating to knowledge of a second language, provided for in Article 28(f) of the Staff Regulations, cannot be regarded as optional for officials.58Since contract staff are required to perform their duties, like officials, in a multilingual environment, there is no basis for interpreting the language skills required of contract staff in Article 82(3)(e) of the CEOS in a manner different from those required, in identical terms, of officials under Article 28(f) of the Staff Regulations. The fact that officials, unlike contract staff, may have to demonstrate their knowledge of a third language is due to the fact that the latter are not subject to the promotion scheme laid down in the Staff Regulations. However, that difference does not affect the interpretation of the requirement of knowledge of a second language set out in Article 28(f) of the Staff Regulations and Article 82(3)(e) of the CEOS.59Consequently, as the Advocate General noted in paragraph 111 of her Opinion, Article 82(3)(e) of the CEOS must be interpreted as meaning that candidates for recruitment as contract agents are required to provide proof of knowledge of at least two official languages. It follows that the first branch of the second plea in law put forward by the Kingdom of Spain must be rejected.60By the second part of that plea, the Kingdom of Spain submits that, given the nature of the duties that contract staff will be called upon to perform, the level of knowledge required in the call for expressions of interest concerning language 2 of the selection procedure, namely a B2 level within the meaning of the CEFR, is not justified. To the extent that the arguments expounded in support of the second part overlap with those presented in support of the third and fourth pleas in law, that branch will be examined jointly with the latter. The second part of the second plea and the third and fourth pleas in law, concerning the restriction of the choice of language 2 of the selection procedure to English, French and German 61The Kingdom of Spain claims that the restriction, in the call for expressions of interest, of the choice of language 2 of the selection procedure to English, French and German is arbitrary, infringes the language regime established by Articles 1 and 6 of Regulation No 1/58 and constitutes discrimination on the grounds of language prohibited by Article 22 of the Charter, Article 1d(1) and (6) of the Staff Regulations and Article 82(3)(e) of the CEOS. None of the reasons set out in the call for expressions of interest could be regarded as constituting a legitimate objective of general interest capable of justifying such a restriction. The reason based on the ‘interests of the service’ resulting from the fact that the staff hired would be operational from the first day in the required languages and could communicate effectively in the course of their work is stereotypical and unrelated to the nature of the duties to be performed. In any event, that restriction is not proportionate to the actual needs of the service. Similarly, the requirement of a B2 level of knowledge, within the meaning of the CEFR, as regards language 2 of the selection procedure is disproportionate.62The Parliament disputes those arguments by stating that the restriction on the choice of language 2 of the selection procedure is duly justified in the call for expressions of interest, in particular by the objective of having staff immediately operational and able to communicate effectively in their daily work.63For the reasons set out in paragraphs 36 to 40 of the present judgment, it is necessary to assess the lawfulness of restricting the choice of language 2 of the selection procedure to English, French and German in the light of Article 1d of the Staff Regulations. Like the restriction on the choice of languages that may be used to complete the electronic application form on the EPSO website and thus to submit an application, which is the subject of the Kingdom of Spain’s first plea, the restriction referred to in the second part of the second plea, as well as in the third and fourth pleas in law, is in the specific context of the organisation of the European Union’s staff selection procedures governed, in particular, by the Staff Regulations.64To that end, it is important to recall at the outset, as noted in paragraphs 38 and 49 of the present judgment, that Article 1d(1) of the Staff Regulations, applicable to procedures for the selection of contract staff under Article 80(4) of the CEOS, prohibits, in the application of those Staff Regulations, any discrimination, such as discrimination on the grounds of language, it being understood that, under Article 1d(6), differences of treatment on the grounds of language may be authorised if they are objectively and reasonably justified by a legitimate objective of general interest in the framework of staff policy.65In so far as the call for expressions of interest provided, pursuant to the CEOS, for a restriction of the choice of language 2 of the selection procedure to English, French and German, candidates whose language skills did not allow them to meet that requirement were deprived of the opportunity to take part in the selection procedure, even if they had sufficient knowledge, under the requirements laid down in Article 82(3)(e) of the CEOS, of at least two official EU languages.66Thus, the fact that candidates were required to choose language 2 of the selection procedure from among English, French and German constitutes a difference of treatment based on language, which is in principle prohibited under Article 1d(1) of the Staff Regulations.67With respect, next, to the existence of a legitimate objective of general interest in the framework of staff policy, within the meaning of Article 1d(6) of the Staff Regulations, capable of justifying that difference in treatment, it follows from the Court’s case-law that the interests of the service may require that the persons recruited have specific language skills. Consequently, the specific nature of the tasks to be performed may justify recruitment based, inter alia, on a thorough knowledge of a specific language (see, to that effect, judgments of 19 June 1975, Küster v Parliament, 79/74, EU:C:1975:85, paragraphs 16 and 17; of 29 October 1975, Küster v Parliament, 22/75, EU:C:1975:140, paragraphs 13 and 14; and of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 88).68In that regard, in the context of a selection procedure, the institutions have a wide discretion to assess the interest of the service and the qualifications and merits of the candidates to be taken into consideration (see, by analogy, judgments of 4 February 1987, Bouteiller v Commission, 324/85, EU:C:1987:59, paragraph 6; of 3 April 2003, Parliament v Samper, C‑277/01 P, EU:C:2003:196, paragraph 35; and of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraph 77). It is therefore not for the Court to substitute its assessment for that of the administration as regards, in particular, the specific language knowledge which should be required, in the interests of the service, from candidates (see, by analogy, judgment of 3 April 2003, Parliament v Samper, C‑277/01 P, EU:C:2003:196, paragraph 35 and the case-law cited).69However, it is for the institution which restricted the language regime of a selection procedure to a limited number of official languages of the Union to establish that such a restriction is indeed appropriate for the purpose of meeting the actual needs relating to the duties that the persons recruited will be required to carry out. In addition, any requirement relating to specific language skills must be proportionate to that interest and be based on clear, objective and predictable criteria enabling candidates to understand the reasons for that requirement and allowing the EU judicature to review the lawfulness thereof (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraphs 90 and 92).70The Parliament takes the view, in that regard, that the interest of the service, as it appears from the call for expressions of interest, consisting in having staff immediately operational and capable of communicating effectively in daily work, does justify restricting the choice of language 2 of the selection procedure to English, French and German. However, the Kingdom of Spain maintains that the grounds set out in the call do not justify that restriction.71As is apparent from paragraph 22 of the present judgment, Section IV of the call for expressions of interest provides that the three languages selected under language 2 of the selection procedure, namely English, French and German, were defined in that way in order to meet the ‘interest of the service’ of ensuring that the persons recruited are ‘immediately operational and able to communicate efficiently in their daily work’. In that regard, it is further stated that it has ‘long been the practice to use mainly English, French, and German for internal communication in the European Parliament, and these are also the languages most often needed when communicating with the outside world and in performing day-to-day work’.72However, those grounds, although they indicate the existence of an interest of the service in new recruits being able to communicate effectively as soon as they take up their duties, are not in themselves sufficient to establish that the duties in question, namely those of driver in the European Parliament, in practice require knowledge of one of those three languages, to the exclusion of the other official languages of the Union.73In that regard, in so far as those grounds state that English, French and German are the most widely used languages in the European Parliament for both internal and external communications, as well as for performing day-to-day work, the call for expressions of interest suggests that those three languages are, in general, the most useful languages for working in that institution. Nonetheless, in so far as the European Parliament has not adopted, pursuant to Article 6 of Regulation No 1/58, internal rules of procedure governing the application of its language regime, it cannot be stated, without regard to the duties that the persons recruited will actually be called upon to perform, that those three languages are necessarily the most useful languages for all the duties in that institution.74The reasons given in Section IV of the call for expressions of interest in order to justify the restriction on the choice of language 2 of the selection procedure do not in any way address the justification for that restriction in relation to the actual language needs relating to the duties that the recruited drivers will be required to perform. In those circumstances, those grounds are not based on clear, objective and foreseeable criteria making it possible to conclude that the interest of the service requires, in the present case, such a difference in treatment based on language.75Admittedly, the duties that the recruited drivers will be called upon to perform are described in Section II of the call for expressions of interest. In that regard, Section II states that the contract staff member will be responsible ‘for performing duties as a driver’, which consist, in particular, of ‘providing transport services for eminent persons and officials and other staff of the European Parliament, mainly in Brussels, Luxembourg and Strasbourg, and also in other Member States and third countries’, ‘providing transport services for visitors (members of the diplomatic corps and other eminent persons’, and ‘ensuring that the vehicle and its equipment are used properly’.76However, neither the circumstance put forward by Parliament that the drivers recruited must perform their duties, in particular in Brussels, Luxembourg and Strasbourg, namely in three cities located in Member States whose official languages include French and German, nor the circumstance put forward by Parliament at the hearing before the Court, that the persons whom the drivers will be called upon to convey mostly use the English language, are such as to justify restricting the choice of language 2 of the selection procedure to the three languages in question.77While it cannot be ruled out that the interests of the service may require the recruitment of a set of drivers with varying language skills, taking into account the diversity of the locations in which they will be called upon to perform their duties or the language skills of the persons they will be called upon to convey, the fact remains that the Parliament has not established how each of the languages listed among those designated as language 2 of the selection procedure would be particularly useful for the carrying out of those duties.78It follows that, even if understood in the light of the description of the duties set out in Section II of the call for expressions of interest and the explanations provided by the Parliament in that regard, the grounds set out in Section IV of that call are not such as to justify restricting the choice of language 2 of the selection procedure to English, French and German. Consequently, the Parliament has not demonstrated that the restriction to each of the languages designated as language 2 of the selection procedure was objectively and reasonably justified in the light of the functional specificities of the posts to be filled and why, on the other hand, the languages chosen did not include other official languages that might be relevant for such posts.79In the light of the foregoing considerations, the third and fourth pleas in law must be upheld. Since the Parliament has not established that the restriction of the choice of language 2 of the selection procedure to English, French and German was objectively and reasonably justified in the light of a legitimate objective of general interest in the framework of staff policy, there is no need to examine the second part of the second plea, which concerns the level of knowledge required in those languages.80Since the first, third and fourth pleas in law of the Kingdom of Spain have been upheld, the call for expressions of interest must be annulled. The consequences of the annulment of the call for expressions of interest 81The Kingdom of Spain takes the view that the annulment of the call for expressions of interest entails, as a consequence, that the database that was set up as a result thereof must be declared void. While not requesting the setting aside of any commitments that may have been made on the basis of a candidate’s inclusion in that database, the Kingdom of Spain emphasises that inclusion therein does not constitute a guarantee of employment and, as regards the candidates who are included therein, the fact that the database is declared void does not therefore imply any breach of the principle of legitimate expectations.82On the other hand, the Parliament contends that since that database has already been established, candidates have been informed of the outcome of the selection procedure and recruitment has begun. In order to be consistent with the principle of legitimate expectations, it should be maintained, in accordance with the approach advocated in particular in the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752).83When deciding on the consequences arising from the annulment of a measure relating to the selection procedures for EU staff, the Court must seek to reconcile the interests of candidates disadvantaged by an irregularity which occurred during that procedure with the interests of other candidates, as a result of which it must take into account not only the need to restore the injured candidates’ rights, but also the legitimate expectations of the candidates already selected (see, to that effect, judgment of 6 July 1993, Commission v Albani and Others, C‑242/90 P, EU:C:1993:284, paragraph 14).84As regards, in particular, irregularities which occurred in respect of the language regime applicable to a selection procedure, the legitimate expectations of candidates already selected must be taken into account by weighing the effects of any challenge to the lists of candidates drawn up on the basis of that selection procedure against the interest of the injured candidates (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 103).85In the present case, in so far as the call for expressions of interest is annulled because of the discriminatory conditions imposed on candidates in respect of their language skills, the database in question must be considered to be tainted by those discriminatory conditions. The inclusion of candidates in that database was based on the results obtained in the context of a selection procedure organised under differing conditions.86In that regard, it should be noted, as the Kingdom of Spain has done, that the candidates who were included in the database in question did not benefit, as such, from any guarantee of employment. Thus, those candidates, unlike those who have already been offered a contract agent post on the basis of their inclusion in that database and who therefore enjoy a legitimate expectation that their recruitment will not be called into question, did not receive any additional assurance from the administration liable to create a legitimate expectation as to their recruitment.87It must therefore be considered that the mere inclusion of candidates in the database in question cannot create a legitimate expectation requiring the effects of the call for expressions of interest which is annulled to continue to apply. On the other hand, the annulment of the database cannot have any impact on any recruitment already made.88In those circumstances, the database must be declared void. Costs 89Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.90Since the Kingdom of Spain has applied for costs and the Parliament has been unsuccessful, the Parliament must be ordered to pay the costs.On those grounds, the Court (Grand Chamber) hereby: 1. Annuls the Call for Expressions of Interest Contract Staff — Function Group I — Drivers (F/M) — EP/CAST/S/16/2016; 2. Declares the database established pursuant to Call for Expressions of Interest Contract Staff — Function Group I — Drivers (F/M) — EP/CAST/S/16/2016 void; 3. Orders the European Parliament to pay the costs. [Signatures]( *1 ) Language of the case: Spanish. | 2a463-d22b038-4383 | EN |
Public procurement rules do not apply to services for the transport of patients provided, in emergency situations, by non-profit organisations or associations | 21 March 2019 ( *1 )(Reference for a preliminary ruling — Public procurement — Directive 2014/24/EU — Article 10(h) — Specific exclusions for service contracts — Civil defence, civil protection and danger prevention services — Non-profit organisations or associations — Patient transport ambulance services — Transport by qualified ambulance)In Case C‑465/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), made by decision of 12 June 2017, received at the Court on 2 August 2017, in the proceedings Falck Rettungsdienste GmbH, Falck A/S v Stadt Solingen, interveners: Arbeiter-Samariter-Bund Regionalverband Bergisch Land eV, Malteser Hilfsdienst eV, Deutsches Rotes Kreuz, Kreisverband Solingen, THE COURT (Third Chamber),composed of M. Vilaras, President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský, L. Bay Larsen, M. Safjan and D. Šváby (Rapporteur), Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: K. Malacek, Administrator,having regard to the written procedure and further to the hearing on 5 September 2018,after considering the observations submitted on behalf of–Falck Rettungsdienste GmbH and Falck A/S, by P. Friton and H.-J. Prieß, Rechtsanwälte,Stadt Solingen, by H. Glahs, Rechtsanwältin, and by M. Kottmann and M. Rafii, Rechtsanwälte,Arbeiter-Samariter-Bund Regionalverband Bergisch Land eV, by J.-V. Schmitz and N. Lenger, Rechtsanwälte, and by J. Wollmann, Rechtsanwältin,Malteser Hilfsdienst eV, by W. Schmitz-Rode, Rechtsanwalt,Deutsches Rotes Kreuz, Kreisverband Solingen, by R.M. Kieselmann and M. Pajunk, Rechtsanwälte,the German Government, by T. Henze and J. Möller, acting as Agents,the Romanian Government, by C.-R. Canţăr and R.H. Radu and by R.I. Haţieganu and C.-M. Florescu, acting as Agents,The Norwegian Government, by M.R. Norum and K.B. Moen, acting as Agentsthe European Commission, by A.C. Becker and by P. Ondrůšek, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 14 November 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 10(h) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).2The request has been made in proceedings between Falck Rettungsdienste GmbH and Falck A/S, on the one hand, and Stadt Soligen (City of Solingen, Germany), on the other hand, concerning the direct award of the contract for ‘Emergency Services in Solingen — Project No V16737/128’, lots 1 and 2 (‘the contract at issue’), without prior publication of a contract notice in the Official Journal of the European Union. Legal context Directive 2014/24 3Recitals 28, 117 and 118 of Directive 2014/24 read as follows:‘(28)This Directive should not apply to certain emergency services where they are performed by non-profit organisations or associations, since the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in this Directive. However, the exclusion should not be extended beyond that strictly necessary. It should therefore be set out explicitly that patient transport ambulance services should not be excluded. In that context it is furthermore necessary to clarify that CPV [Common Procurement Vocabulary] Group 601 “Land Transport Services” does not cover ambulance services, to be found in CPV class 8514. It should therefore be clarified that services, which are covered by CPV code 85143000‑3, consisting exclusively of patient transport ambulance services should be subject to the special regime set out for social and other specific services (the “light regime”). Consequently, mixed contracts for the provision of ambulance services in general would also be subject to the light regime if the value of the patient transport ambulance services were greater than the value of other ambulance services.…(117)Experience has shown that a series of other services, such as rescue services, firefighting services and prison services are normally only of cross-border interest as of such time as they acquire sufficient critical mass through their relatively high value. In so far as they are not excluded from the scope of this Directive, they should be included under the light regime. To the extent that their provision is actually based on contracts, other categories of services, such as government services or the provision of services to the community, they would normally only be likely to present a cross-border interest as from a threshold [EUR] 750000 and should consequently only then be subject to the light regime.(118)In order to ensure the continuity of public services, this Directive should allow that participation in procurement procedures for certain services in the fields of health, social and cultural services could be reserved for organisations which are based on employee ownership or active employee participation in their governance, and for existing organisations such as cooperatives to participate in delivering these services to end users. This provision is limited in scope exclusively to certain health, social and related services, certain education and training services, library, archive, museum and other cultural services, sporting services, and services for private households, and is not intended to cover any of the exclusions otherwise provided for by this Directive. Those services should only be covered by the “light regime”.’4Under the heading, ‘Specific exclusions for service contracts’, Article 10(h) of the directive provides:‘This Directive shall not apply to public service contracts for:(h)civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000‑3 [firefighting and rescue services], 75251000‑0 [fire services], 75251100‑1 [firefighting services], 75251110‑4 [fire prevention services], 75251120‑7 [forest fire-fighting services], 75252000-7 [emergency/rescue services], 75222000‑8 [civil protection services], 98113100‑9 [nuclear safety services] and 85143000‑3 [ambulance services] except patient transport ambulance services;…’5Chapter I on ‘Social and other specific services’ under Title III, headed ‘Particular procurement regimes’, of the directive comprises Articles 74 to 77.6Article 77 of Directive 2014/24, entitled ‘Reserved contracts for certain services’:‘1. Member States may provide that contracting authorities may reserve the right for organisations to participate in procedures for the award of public contracts exclusively for those health, social and cultural services referred to in Article 74, which are covered by CPV codes 75121000‑0, 75122000‑7, 75123000‑4, 79622000‑0, 79624000‑4, 79625000‑1, 80110000‑8, 80300000‑7, 80420000‑4, 80430000‑7, 80511000‑9, 80520000‑5, 80590000‑6, from 85000000‑9 to 85323000‑9, 92500000‑6, 92600000‑7, 98133000‑4, 98133110‑8.2. An organisation referred to in paragraph 1 shall fulfil all of the following conditions:(a)its objective is the pursuit of a public service mission linked to the delivery of the services referred to in paragraph 1;(b)profits are reinvested with a view to achieving the organisation’s objective. Where profits are distributed or redistributed, this should be based on participatory considerations;(c)the structures of management or ownership of the organisation performing the contract are based on employee ownership or participatory principles, or require the active participation of employees, users or stakeholders; and(d)the organisation has not been awarded a contract for the services concerned by the contracting authority concerned pursuant to this Article within the past three years. German law 7Paragraph 107(1)(4) of the Gesetz gegen Wettbewerbsbeschränkungen (Law against Restrictions of Competition) of 26 June 2013, (BGB1. I, p. 1750), in the version applicable to the case in the main proceedings (‘the GWB’), provides:‘General exclusions1. This [fourth] part shall not apply to public procurement or the grant of concessions relating to:(4)civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000‑3, 75251000‑0, 75251100‑1, 75251110‑4, 75251120‑7, 75252000‑7, 75222000‑8. 98113100‑9 and 85143000‑3, except for patient transport ambulance services. Non-profit organisations or associations within the meaning of this provision include, in particular, public aid associations which are recognised under federal or regional law as associations involved in civil and disaster protection.’8In accordance with Article 2(1) of the Gesetz über den Rettungsdienst sowie die Notfallrettung und den Krankentransport durch Unternehmer (Rettungsgesetz NRW — RettG NRW) (Law of the Land of North Rhine-Westphalia on emergency services as well as emergency rescue and patient transport by contractors) of 24 November 1992, emergency services cover emergency interventions, transport by ambulance and the care of a large numbers of sick or injured persons in the event of major disasters. According to the first sentence of Paragraph 2(2) of that law, emergency rescue interventions have the aim of carrying out measures in situ to save the lives of patients in an emergency situation, making them fit for transport, maintaining their fitness for transport, and preventing further harm, including transporting them in an emergency doctor’s vehicle or by ambulance to an appropriate hospital where further care can be provided. According to Paragraph 2(3), the transport by ambulance is designed to provide appropriate care to sick or injured persons or other persons needing help who are not covered by Paragraph 2(2) of the same law, including transporting them, inter alia, by ambulance under supervision by qualified personnel.9Paragraph 26(1), second sentence, of the Zivilschutz- und Katastrophenhilfegesetz (Law on civil protection and disaster response), of 25 March 1997 (BGB1. I, p. 726), in the version applicable in the case in the main proceedings, (‘the Law on civil protection’), provides that the Arbeiter-Samariter-Bund (Workers’ Samaritan Federation), the Deutsche Lebensrettungsgesellschaft (German Life Saving Association), the Deutsche Rote Kreuz (German Red Cross), the Johanniter-Unfall-Hilfe (St. John’s Accident Assistance) and the Malteser-Hilfsdienst (Maltese Aid Service) are particularly suitable for collaboration in fulfilling the tasks under that legislation.10The first sentence of Paragraph 18(1) and Paragraph 18(2) of the Gesetz über den Brandschutz, die Hilfeleistung und den Katastrophenschutz (Law on protection from fire, aid and civil defence) of 17 December 2015 (‘the Law on fire protection’) reads as follows:‘(1) Private associations for public aid help with accidents and public emergencies, major operations and disasters, if they have declared to the highest supervisory authority their readiness to cooperate and that authority has determined their general suitability for cooperation and there is a need for such cooperation (recognised aid associations). …2. For the organisations listed in the second sentence of Paragraph 26(1) of the [Law on civil protection] no declaration of willingness to cooperate or general suitability is required.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 11The City of Solingen decided, in March 2016, to renew the award of the contract for emergency services for a period of five years. The planned contract concerned in particular the use of municipal ambulances, first, for emergency rescue, with the care and treatment of emergency patients by emergency worker assisted by a paramedic as the primary task, and, second, the transport by ambulance, the primary task being the care of patients by a paramedic assisted by medical assistant.12The City of Solingen did not publish a contract notice in the Official Journal of the European Union. Instead, on 11 May 2016, it invited four public aid associations, including the three parties intervening before the referring court, to submit a tender.13After tenders were received, Arbeiter-Samariter-Bund Regionalverband Bergisch Land eV and Malteser Hilfsdienst eV were each awarded one of the two lots comprising the contract at issue.14Falck Rettungsdienste, a provider of emergency and health services, and the Falck A/S Group, to which Falck Rettungsdienste belongs (together ‘Falck and Others’) criticise the City of Solingen for having awarded the contract without prior publication of a contract notice in the Official Journal of the European Union. Falck and Others therefore lodged, before the Vergabekammer Rheinland (Public Procurement Tribunal for the Rhineland, Germany), an action seeking a declaration that the de facto award breached their rights and that the City of Solingen was required, if it maintained its intention to award the contract at issue, to award it upon conclusion of a public procurement procedure that complied with EU law.15By decision of 19 August 2016, that tribunal rejected the action as inadmissible.16Falck and Others brought an appeal against the decision of the Public Procurement Tribunal for the Rhineland before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany). They reproach the tribunal for having failed to interpret the first sentence of Paragraph 107(1)(4) of the GWB, the wording of all points of which is consonant with Article 10(h) of Directive 2014/24, consistently with that directive.17Before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf), Falck and Others submit that the rescue services at issue in the main proceedings do not constitute services of danger prevention. The concept of ‘danger prevention’ refers only to prevention of danger to large groups of people in extreme situations with the result that it does not have an independent meaning and that it does not cover the protection against danger to life and health of individuals. It follows, according to Falck and Others, that transport by qualified ambulance, which includes, in addition to the provision of transport, care by a paramedic assisted by an medical assistant (‘transport by qualified ambulance’), is not covered by the exclusion laid down in Article 10(h) of Directive 2014/24 because it constitutes merely a patient transport ambulance service.18Furthermore, according to Falck and Others, the national legislature was not entitled to decide that the three intervening parties before the referring court are non-profit organisations or associations merely because they are recognised in national law as public aid associations, in accordance with the second sentence of Paragraph 107(1)(4) of the GWB. The conditions under EU law for classification as a ‘non-profit organisation’ are stricter, having regard to the judgments of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others (C‑113/13, EU:C:2014:2440) and of 28 January 2016, CASTA and Others (C‑50/14, EU:C:2016:56) or, at the very least, Article 77(1) of Directive 2014/24.19The referring court considers that the appeal brought by Falck and Others could be upheld if at least one of the conditions required for the exclusion laid down in Paragraph 107(1)(4) of the GWB was not satisfied. It was therefore necessary to determine, first, whether the contract at issue covers danger prevention services, secondly, from what date the conditions for the status of non-profit organisation or association are deemed to be satisfied and, thirdly, the nature of the services covered by the phrase ‘patient transport ambulance services’ used in that provision.20According to the referring court, while civil defence covers unforeseeable large-scale emergencies during peacetime, the concept of civil protection relates to the protection of the civilian population during wartime. The concept of ‘danger prevention services’ could however include services for the prevention of danger to the health and life of individuals, where those services are mobilised against an imminent danger from normal risks such as fire, illness or accidents. That interpretation of the concept of ‘danger prevention’ is more attractive than the restrictive notion contended for by Falck and Others which does not confer any independent regulatory content upon it, since it may be confused with the concept of ‘civil defence’ and also ‘civil protection’.21Furthermore, the objective of the exclusion laid down in Article 10(h) of Directive 2014/24, as the first sentence of recital 28 of the directive clarifies, is to enable non-profit organisations to continue to work in the emergency services sector for the well-being of citizens without the risk of being excluded from the market because the competition from commercial companies is too great. However, since non-profit organisations or associations act essentially in the area of daily emergency services for individuals, that exclusion would not achieve its aim if it applied only to services for the prevention of major disasters.22The referring court also wonders whether the rule laid down in the second sentence of Paragraph 107(1)(4) of the GWB is compatible with the concept of non-profit organisations or associations contained in Article 10(h) of Directive 2014/24 to the extent that the legal recognition, in national law, of the status of an organisation for civil protection and civil defence does not necessarily depend on whether the organisation is a non-profit one.23In that regard, the referring court has doubts as to the submission made by Falck and Others that the non-profit organisation must satisfy other conditions set out in Article 77(2) of Directive 2014/24, or even in the judgments of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others (C‑113/13, EU:C:2014:2440) and of 28 January 2016, CASTA and Others (C‑50/14, EU:C:2016:56).24The referring court also observes that danger prevention services, covered by CPV code 85143000‑3 (ambulance services), are covered by the exclusion laid down in Article 10(h) of Directive 2014/24 (‘the exclusion’), with the exception of ‘patient transport ambulance services’ (‘the exception to the exclusion’). In that regard, the question arises as to whether this exception to the exclusion covers only the transport of a patient in an ambulance without any medical care, or whether it also covers transport by qualified ambulance, where the patient receives medical assistance.25In those circumstances, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Do the care and treatment of emergency patients in an ambulance by an emergency worker/paramedic, on the one hand, and the care and treatment of patients in a patient transport ambulance by a paramedic/medical assistant, on the other hand, constitute “civil defence, civil protection, and danger prevention services” within the meaning of Article 10(h) of Directive [2014/24] which come under CPV codes 75252000‑7 (rescue services) and 85143000‑3 (ambulance services)?(2)Can Article 10(h) of Directive [2014/24] be understood as meaning that “non-profit organisations or associations” include, in particular, aid organisations that are recognised under national law as civil defence and civil protection organisations?(3)Are “non-profit organisations or associations” within the meaning of Article 10(h) of Directive [2014/24] those whose mission is fulfilled in the achievement of tasks in the public good, which do not operate with a view to making a profit and which reinvest any profits in order to realise the mission of the organisation?Is the transport of a patient in an ambulance while care is provided by a paramedic/medical assistant (so-called transport by qualified ambulance) a “patient transport ambulance service” within the meaning of Article 10(h) of Directive [2014/24], which is not covered by the exclusion and to which Directive [2014/24] applies?’ Consideration of the questions referred The first and fourth questions 26As a preliminary matter, it is appropriate to underline, as the referring court observes, that the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic and the transport by qualified ambulance do not constitute either ‘civil defence services’ or ‘civil protection services’.27Therefore, the referring court must be regarded as asking, by its first and fourth questions, which it is appropriate to examine together, in essence, whether Article 10(h) of Directive 2014/24 must be interpreted as meaning that, first, the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic and, second, transport by qualified ambulance fall within the concept of ‘danger prevention services’ and the CPV codes 75252000‑7 (emergency/rescue services) and 85143000‑3 (ambulance services) respectively and, therefore, that they are excluded from the field of application of that directive, or whether those services are ‘patient transport ambulance services’, which are subject, on that basis, to a special regime established for social and other specific services.28It must be observed that Directive 2014/24 does not define the concept of ‘danger prevention’ and that, according to established case-law, it follows from the need for the uniform application of EU law and from the principle of equality that 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 must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11, and of 19 September 2000, Linster, C‑287/98, EU:C:2000:468, paragraph 43).29While it is true that the concepts of ‘civil protection’ and ‘civil defence’ refer to situations in which it is necessary to respond to mass harm, such as, for example, an earthquake, a tsunami or even a war, it does not necessarily follow that the concept of ‘danger prevention’, which is also referred to in Article 10(h) of Directive 2014/24, must have such a collective dimension.30It follows from both a literal and contextual interpretation of Article 10(h) of Directive 2014/24 that ‘danger prevention’ covers both collective and individual risks.31First, the wording of that provision refers to various CPV codes referring to dangers irrespective of whether they are collective or individual. That is the case, inter alia, as regards CPV codes 75250000‑3 (firefighting and rescue services), 75251000‑0 (fire services), 75251100‑1 (firefighting services), 75251110‑4 (fire prevention services) and, more specifically, having regard to the subject matter of the case in the main proceedings, codes 75252000‑7 (emergency/rescue services) and 85143000‑3 (ambulance services).32Secondly, to require danger prevention to have a collective dimension would prevent that concept having any independent content, since it would be systematically confused with either civil protection or civil defence. Where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (judgment of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 21).33Thirdly, having regard to the context, that interpretation of Article 10(h) of Directive 2014/24 is confirmed by recital 28 thereof. The first sentence of that recital states that ‘this directive should not apply to certain emergency services where they are performed by non-profit organisations or associations, since the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in this directive’. In that regard, it must be emphasised that the exclusion of the application of that directive is not restricted only to emergency services that are provided when collective danger arises. Furthermore, it must be observed, as the order for reference states, that the primary activity carried out by the public aid associations in question in the main proceedings relate to emergency services which, as a general rule, deal with individual and daily interventions. It is precisely as a result of the experience thus acquired by performing those day-to-day emergency services that those non-profit organisations or associations are in the position, according to the referring court, of being operational when they are required to provide ‘civil protection’ and ‘civil defence’ services.34Fourthly, and as the German Government submitted in its written observations, if danger prevention and, hence, the general exclusion referred to in Article 10(h) of Directive 2014/24, was limited to emergency interventions in extreme situations, the EU legislature would not have cited solely transport by ambulance in the exception from the exclusion. In that regard, as the Advocate General noted in point 48 of his Opinion, it must be observed that if the EU legislature judged it useful to make reference to ‘patient transport ambulance services’, it was because those services would otherwise have been construed as being covered by the exclusion laid down in that provision.35It follows that the objective referred to in recital 28 of Directive 2014/24 would not be achieved if the concept of ‘danger prevention’ must be understood as covering only the prevention of collective danger.36Having regard to all the foregoing considerations, it must be concluded that, both the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic and transport by qualified ambulance fall within the concept of ‘danger prevention’, for the purposes of Article 10(h) of Directive 2014/24.37It remains to be determined whether both of those services are covered by one of the CPV codes listed in that provision.38As a preliminary matter, it is necessary to refer to the structure of Article 10(h) of Directive 2014/24 which contains an exclusion and an exception to the exclusion. That provision excludes from the scope of the usual rules on public procurement, public contracts for services relating to civil defence, civil protection and danger prevention, subject to two conditions, namely that those services correspond to the CPV codes referred to in that provision and that they are provided by non-profit organisations or associations. That exclusion from the application of the rules on public procurement contains an exception, however, in that it does not apply to patient transport ambulance services, which are covered by the simplified regime for public procurement laid down in Articles 74 to 77 of Directive 2014/24.39The objective of the exclusion is, as is clear from recital 28 of the directive, to preserve the particular nature of non-profit organisations or associations by avoiding applying the procedures set out in the directive to them. That said, the same recital states that that exclusion must not be extended beyond what is strictly necessary.40In that context, and as the Advocate General indicated, in essence, in point 64 of his Opinion, there is no doubt that the care of patients in an emergency situation, carried out moreover in a rescue vehicle by an emergency worker/paramedic is covered by CPV code 75252000‑7 (rescue services).41It is therefore necessary to assess whether transport by qualified ambulance is also capable of being covered by the same code or by CPV code 85143000‑3 (ambulance services).42In that regard, from the formulation of the first question referred it seems that transport by qualified ambulance does not correspond to the transport of patients in emergency situations. As the Advocate General observes in point 33 of his Opinion, the referring court has distinguished between the care of patients in emergency situations by a rescue vehicle, and the care of patients in an ambulance by a paramedic/medical assistant. It must therefore be held that the latter service, which the referring court classifies as transport by qualified ambulance, is not carried out by means of a rescue vehicle, with all the specialised medical equipment that that implies, but by means of an ambulance which may only be a mere transport vehicle.43It is clear from Article 10(h) of Directive 2014/24, read in the light of recital 28 thereof, that the exclusion from the public procurement rules laid down in that provision in favour of danger prevention services only benefits certain emergency services provided by non-profit organisations or associations and that it must not go beyond what is strictly necessary.44It follows that the inapplicability of the public procurement rules laid down in Article 10(h) of that directive is inextricably linked to the existence of an emergency service.45It follows that the presence of qualified personnel on board an ambulance cannot suffice to establish, in itself, the existence of an ambulance service covered by CPV code 85143000‑3.46An emergency may, despite everything, be shown to exist, at least potentially, where it is necessary to transport a patient whose state of health is at risk of deterioration during that transport. It is only in those circumstances that transport by qualified ambulance could fall within the scope of the exclusion from the application of the public procurement rules laid down in Article 10(h) of directive 2014/24.47In that regard, it must be emphasised that, at the hearing before the Court, both the City of Solingen and the German Government explained, in essence, that transport by qualified ambulance is characterised by the fact that, due to the state of the patient’s health, an emergency situation could arise at any time in the transport vehicle.48It is therefore on the ground that there is a risk of deterioration in the state of the patient’s health during his transport that personnel properly trained in first aid must be on board that vehicle in order to be able to care for the patient and, if necessary, provide the urgent medical care that he may require.49It is necessary, in addition, to clarify that it must be possible for the risk of deterioration in the patient’s state of health to be, in principle, objectively assessed.50It follows that transport by qualified ambulance is only capable of constituting an ‘ambulance service’ covered by CPV code 85143000‑3, within Article 10(h) of Directive 2014/24, where, first, it is in fact undertaken by personnel properly trained in first aid and, second, it is provided to a patient whose state of health is at risk of deterioration during that transport.51Therefore, the answer to the first and fourth questions is that Article 10(h) of Directive 2014/24 must be interpreted as meaning that the exclusion from the application of the public procurement rules that it lays down, covers the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic, covered by CPV code 75252000‑7 (rescue services) and transport by qualified ambulance covered by CPV code 85143000‑3 (ambulance services), provided that, as regards transport by qualified ambulance, it is in fact undertaken by personnel properly trained in first aid and, second, it is provided to a patient whose state of health is at risk of deterioration during that transport. The second and third questions 52By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 10(h) of Directive 2014/24 must be interpreted as meaning, first, that it precludes public aid associations recognised in national law as civil protection and defence organisations from being regarded as ‘non-profit organisations or associations’, within the meaning of that provision, in so far as, under national law, recognition as having public aid association status is not subject to not having a profit-making purpose and, second, the organisations and associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organisation or association constitute ‘non-profit organisations or associations’ within the meaning of that provision.53In the first place, it suffices to observe that it is clear from the order for reference itself that the legal recognition in German law, on the basis of the first sentence of Paragraph 107(1)(4), second sentence, of the GWB, of the status of a civil protection and defence organisation does not necessarily depend upon whether the organisation concerned is a non-profit organisation.54Paragraph 26(1), second sentence, of the Law on civil protection merely affirms that the Workers’ Samaritan Federation, the German Life Saving Association, the German Red Cross, St. John’s Accident Assistance and the Maltese Aid Service are particularly suitable for collaboration in fulfilling the tasks under that legislation. The certificate of suitability thus issued to those five associations, in accordance with Paragraph 18(2) of the Law on fire protection, recognises their general suitability to participate in rescue operations or assist in the event of public accidents or emergencies, mass interventions or disasters.55It appears, moreover, that neither Paragraph 26(1), second sentence, of the Law on civil protection, nor Paragraph 18(2) of the Law on fire protection indicates whether, and to what extent, the not-for-profit aim of the service is to be taken into account or whether it is a condition for the recognition of status as a public aid association.56In those circumstances, the attribution under German law of the status of ‘civil protection and civil defence organisation’ cannot guarantee with certainty that the beneficiary entities of that status do not pursue a profit-making purpose.57It should however be noted that, in its written observations, Arbeiter-Samariter-Bund Regionalverband Bergisch-Land (the Bergisch-Land Regional Workers’ Samaritan Federation) submitted that, on pain of having its status as a non-profit organisation withdrawn, a person must, pursuant to Paragraph 52 of the Abgabenordnung (Tax Code), constantly carry out an activity intended to bring about, in a disinterested way, material, spiritual or moral benefits for the community.58In that regard, it is for the referring court to determine whether Paragraph 107(1)(4), second sentence, of the GWB, read in conjunction with Paragraph 52 of the Tax Code, may be interpreted consistently with the requirements flowing from Article 10(h) of Directive 2014/24.59In the second place, organisations and associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organisation or association constitute ‘non-profit organisations or associations’, within the meaning of Article 10(h) of Directive 2014/24.60In that regard, it must be held, as the Advocate General observed in points 74 to 77 of his Opinion, that non-profit organisations or associations referred to in recital 28 of Directive 2014/24 are not required also to satisfy the conditions laid down in Article 77(2) of that directive. There is no equivalence between, on the one hand, those organisations and associations referred to in recital 28 and, on the other hand, the ‘organisations which are based on employee ownership or active employee participation in their governance’ and ‘existing organisations such as cooperatives’, which are referred to in recital 118 of the same directive. Therefore, there also cannot be equivalence between Article 10(h) of Directive 2014/24, which excludes certain activities of non-profit organisations or associations from the scope of that directive, and Article 77 of the directive, which subjects certain activities of organisations based on employee ownership or employee participation in the organisation’s governance and existing organisations, such as cooperatives, to the light regime laid down in Articles 74 to 77 of Directive 2014/24.61Consequently, the answer to the second and third questions is that Article 10(h) of Directive 2014/24 must be interpreted as meaning, first, that it precludes public aid associations recognised in national law as civil protection and defence associations from being regarded as ‘non-profit organisations or associations’, within the meaning of that provision, in so far as, under national law, recognition as having public aid association status is not subject to not having a profit-making purpose and, second, that organisations or associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organisation or association constitute ‘non-profit organisations or associations’ within the meaning of that provision. Costs 62Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: 1. Article 10(h) of Directive 2004/24/EU, of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, must be interpreted as meaning that the exclusion from the application of the public procurement rules that it lays down, covers the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic, covered by CPV [Common Procurement Vocabulary] code 75252000‑7 (rescue services) and transport by qualified ambulance, which comprises, in addition to the provision of transport, the care of patients in an ambulance by a paramedic assisted by a medical assistant, covered by CPV code 85143000‑3 (ambulance services), provided that, as regards transport by qualified ambulance, it is in fact undertaken by personnel properly trained in first aid and, second, it is provided to a patient whose state of health is at risk of deterioration during that transport. 2. Article 10(h) of Directive 2014/24 must be interpreted as meaning, first, that it precludes public aid associations recognised in national law as civil protection and defence associations from being regarded as ‘non-profit organisations or associations’, within the meaning of that provision, in so far as, under national law, recognition as having public aid association status is not subject to not having a profit-making purpose and, second, that organisations or associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organisation or association constitute ‘non-profit organisations or associations’ within the meaning of that provision. [Signatures]( *1 ) Language of the case: German. | deb31-25bbad7-44b7 | EN |
Italy has failed to fulfil its obligations under the directive on the landfill of waste as regards 44 landfill sites | 21 March 2019 ( *1 )(Failure of a Member State to fulfil obligations — Directive 1999/31/EC — Article 14(b) and (c) — Landfill of waste — Existing landfill sites — Infringement)In Case C-498/17,ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 17 August 2017, European Commission, represented by G. Gattinara, F. Thiran and E. Sanfrutos Cano, acting as Agents,applicant,v Italian Republic, represented by G. Palmieri, acting as Agent, and G. Palatiello, avvocato dello Stato,defendant,THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, C. Lycourgos, E. Juhász, M. Ilešič and I. Jarukaitis, Judges,Advocate General: Y. Bot,Registrar: R. Schiano, Administrator,having regard to the written procedure and further to the hearing on 22 November 2018,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1By its application, the European Commission requests the Court to rule that, by having failed to adopt, with regard to the landfill sites of Avigliano (area of Serre Le Brecce), Ferrandina (area of Venita), Genzano di Lucania (area of Matinella), Latronico (area of Torre), Lauria (area of Carpineto), Maratea (area of Montescuro), Moliterno (area of Tempa La Guarella), both landfill sites of Potenza (area of Montegrosso-Pallareta), the landfill sites of Rapolla (area of Albero in Piano), Roccanova (area of Serre), Sant’Angelo Le Fratte (area of Farisi), Campotosto (area of Reperduso), Capistrello (area of Trasolero), Francavilla (Valle Anzuca), L’Aquila (area of Ponte delle Grotte), Andria (D’Oria G. & C. Snc), Canosa (CO.BE.MA), Bisceglie (CO.GE.SER), Andria (F.lli Acquaviva), Trani (BAT-Igea Srl), Torviscosa (Caffaro (undertaking)), Atella (area of Cafaro), Corleto Perticara (area of Tempa Masone), Marsico Nuovo (area of Galaino), Matera (area of La Martella), Pescopagano (area of Domacchia), Rionero in Volture (area of Ventaruolo), Salandra (area of Piano del Governo), San Mauro Forte (area of Priati), Senise (area of Palomabara), Tito (area of Aia dei Monaci), Tito (area of Valle del Forno), Capestrano (area of Tirassegno), Castellalto (area of Colle Coccu), Castelvecchio Calvisio (area of Termine), Corfinio (area of Cannucce), Corfinio (area of Case querceto), Mosciano S. Angelo (area of Santa Assunta), S. Omero (area of Ficcadenti), Montecorvino Pugliano (area of Parapoti), San Bartolomeo in Galdo (area of Serra Pastore), Trivigano (formerly Cava Zof) and Torviscosa (area of La Valletta), all the measures necessary in order that, as soon as possible, in accordance with Article 7(g) and Article 13 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1), those landfill sites in the above list which have not obtained, in accordance with Article 8 of that directive, a permit to continue to operate, may be closed, or by failing to adopt the measures necessary to bring those landfill sites which have obtained a permit to continue to operate into line with that directive, without prejudice to the conditions laid down in Annex I, point 1, to that directive, the Italian Republic has failed to fulfil its obligations under Article 14(b) and (c) of Directive 1999/31. Legal context 2Under Article 1 of Directive 1999/31, entitled ‘Overall objective’:‘1. With a view to meeting the requirements of [Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39)], and in particular Articles 3 and 4 thereof, the aim of this directive is, by way of stringent operational and technical requirements on the waste and landfills, to provide for measures, procedures and guidance to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air, and on the global environment, including the greenhouse effect, as well as any resulting risk to human health, from landfilling of waste, during the whole life-cycle of the landfill.2. In respect of the technical characteristics of landfills, this directive contains, for those landfills to which [Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26)] is applicable, the relevant technical requirements in order to elaborate in concrete terms the general requirements of that directive. The relevant requirements of Directive 96/61/EC shall be deemed to be fulfilled if the requirements of this directive are complied with.’3Article 7 of Directive 1999/31, entitled ‘Application for a permit’, provides:‘Member States shall take measures in order that the application for a landfill permit must contain at least particulars of the following:…(g)the proposed plan for the closure and after-care procedures;…’4Pursuant to Article 8 of that directive, entitled ‘Conditions of the permit’:‘Member States shall take measures in order that:(a)the competent authority does not issue a landfill permit unless it is satisfied that:(i)without prejudice to Article 3(4) and (5), the landfill project complies with all the relevant requirements of this directive, including the annexes;(ii)the management of the landfill site will be in the hands of a natural person who is technically competent to manage the site; professional and technical development and training of landfill operators and staff are provided;(iii)the landfill shall be operated in such a manner that the necessary measures are taken to prevent accidents and limit their consequences;(iv)adequate provisions, by way of a financial security or any other equivalent, on the basis of modalities to be decided by Member States, has been or will be made by the applicant prior to the commencement of disposal operations to ensure that the obligations (including after-care provisions) arising under the permit issued under the provisions of this Directive are discharged and that the closure procedures required by Article 13 are followed. This security or its equivalent shall be kept as long as required by maintenance and after-care operation of the site in accordance with Article 13(d). Member States may declare, at their own option, that this point does not apply to landfills for inert waste;(b)the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of Directive 75/442/EEC;(c)prior to the commencement of disposal operations, the competent authority shall inspect the site in order to ensure that it complies with the relevant conditions of the permit. This will not reduce in any way the responsibility of the operator under the conditions of the permit.’5Under Article 13 of Directive 1999/31, entitled ‘Closure and after-care procedures’:‘Member States shall take measures in order that, in accordance, where appropriate, with the permit:a landfill or part of it shall start the closure procedure:when the relevant conditions stated in the permit are met;orunder the authorisation of the competent authority, at the request of the operator;by reasoned decision of the competent authority;a landfill or part of it may only be considered as definitely closed after the competent authority has carried out a final on-site inspection, has assessed all the reports submitted by the operator and has communicated to the operator its approval for the closure. This shall not in any way reduce the responsibility of the operator under the conditions of the permit;6Article 14 of that directive, entitled ‘Existing landfill sites’, is worded as follows:‘Member States shall take measures in order that landfills which have been granted a permit, or which are already in operation at the time of transposition of this directive, may not continue to operate unless the steps outlined below are accomplished as soon as possible and within eight years after the date laid down in Article 18(1) at the latest:with a period of one year after the date laid down in Article 18(1), the operator of a landfill shall prepare and present to the competent authorities, for their approval, a conditioning plan for the site including the particulars listed in Article 8 and any corrective measures which the operator considers will be needed in order to comply with the requirements of this directive with the exception of the requirements in Annex I, point 1;following the presentation of the conditioning plan, the competent authorities take a definite decision on whether operations may continue on the basis of the said conditioning plan and this directive. Member States shall take the necessary measures to close down as soon as possible, in accordance with [Articles] 7(g) and 13, sites which have not been granted, in accordance with Article 8, a permit to continue to operate;on the basis of the approved site-conditioning plan, the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan. Any existing landfill shall comply with the requirements of this directive with the exception of the requirements in Annex I, point 1, within eight years after the date laid down in Article 18(1);(d)within one year after the date laid down in Article 18(1), Articles 4, 5, and 11 and Annex II shall apply to landfills for hazardous waste;within three years after the date laid down in Article 18(1), Article 6 shall apply to landfills for hazardous waste.’7Article 18 of the directive, entitled ‘Transposition’, provides, in paragraph 1:‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive two years after the entry into force of the directive at the latest. They shall forthwith inform the Commission thereof.8In accordance with Article 19 thereof, Directive 1999/31 entered into force on 16 July 1999. Pre-litigation procedure 9After a number of exchanges with the Italian authorities, the Commission sent, on 28 February 2012, a letter of formal notice to the Italian Republic under Article 258 TFEU, in which it stated that there were 102 existing landfill sites in that Member State operating in breach of Article 14 of Directive 1999/31.10In their letters of 11 May and 8 June 2012, the Italian authorities reported 46 existing landfills for the purpose of Article 14 thereof.11The Commission issued a reasoned opinion on 22 November 2012, to which the Italian Republic replied on 24 January 2013, 3 March and 4 July 2014.12In view of certain inaccuracies in the replies provided by the Italian authorities and as a result of the judgment of 2 December 2014, Commission v Italy (C‑196/13, EU:C:2014:2407), in which the Court found that the Italian Republic had infringed Article 260(1) TFEU in relation, inter alia, to some existing landfills within the meaning of Article 14 of Directive 1999/31, the Commission sent, on 19 June 2015, an additional reasoned opinion in which it clarified the distinction between the infringement procedure at issue in the present case and that which gave rise to that judgment. The Commission stated that the latter concerned the obligation on the competent authorities to adopt a decision relating to each of the landfill sites at issue and dealing with either the permit to continue to operate given to those landfill sites or the closure of the sites, in accordance with Article 14 of Directive 1999/31. It specified that the procedure at issue in the present case relates, however, to the ‘completion’ obligations, namely the obligations to implement the measures which the Member State concerned has already adopted and which may, depending on the landfill sites concerned, relate to a permit to continue to operate given to the landfill site in question as well as its closure. According to the Commission, those completion obligations, depending on the landfill site concerned, therefore consist in the implementation of the measures necessary to its closure in accordance with the second sentence of Article 14(b) of that directive, as well as the adoption of measures necessary to bring it into line with that directive, where it has been authorised to continue to operate under Article 14(c) of that directive.13Following the additional reasoned opinion, the Commission granted the Italian Republic until 19 October 2015 to reply to it, which the Italian Republic did by its letters of 20 October 2015, 9 September 2016, 13 January and 12 April 2017.14In its reply of 9 September 2016, the Italian Republic provided a complete list of existing landfill sites, broken down by region, and mentioned four other existing landfill sites which, however, are not the subject of the present proceedings since they were not taken into account in the letter of formal notice.15In the light of the answers provided by the Italian Republic to the additional reasoned opinion on 13 January and 12 April 2017, the Commission stated that six landfill sites had been brought into line with Directive 1999/31.16However, taking the view that 44 landfill sites still do not comply with Directive 1999/31, the Commission decided to bring the present action. The action Arguments of the parties 17The Commission recalls that, pursuant to Article 14 of Directive 1999/31, Member States must take measures in order that existing landfill sites, that is to say, landfills which have been granted a permit, or which are already in operation before 16 July 2001, may not continue to operate after 16 July 2009 unless the steps outlined in Article 14(b) and (c) of that directive are accomplished as soon as possible. That article thus establishes a transitional arrangement intended to ensure that existing landfills are quickly brought into line with the requirements of that directive.18The Commission states that the present infringement procedure concerns only completion obligations which target the completion, by 16 July 2009 at the latest, of the measures necessary for the closure of existing landfill sites pursuant to the second sentence of Article 14(b) of Directive 1999/31 or the completion of the measures necessary to bring into line with the requirements of that directive existing landfill sites which have been granted a permit to continue their operations under Article 14(c) of the directive.19As regards, first, the existing landfills that have not been granted a permit to continue their operations under the second sentence of Article 14(b) of Directive 1999/31, the Italian Republic should have adopted the measures necessary to implement, as soon as possible and not later than 16 July 2009, their closure in accordance with Article 7(g) and Article 13 of that directive.20Second, as regards existing landfills which are permitted to continue their operations, Article 14(c) of the directive provides that, if the site-conditioning plan has been approved and therefore the permit to continue to operate was issued, the competent authorities must ensure that all those landfills comply with the requirements of that directive by 16 July 2009 at the latest.21The Commission notes, in that context, a certain ambiguity in the measures adopted by the Italian authorities, in that they have sometimes decided, first, to adopt a site-conditioning plan and have therefore authorised the continued operation of the landfill concerned, before deciding, as a second step, on its closure. The term ‘conditioning’ has also been used even in cases of landfill sites covered by a closure decision. For 22 of the 44 landfills concerned by the present action, it is therefore impossible to define without ambiguity whether they are to be closed or to continue to operate.22In all cases, the Commission notes that, for the 44 landfills in question, either the work necessary to bring the landfill sites which were to continue to operate into line with Directive 1999/31 had not been carried out by 19 October 2015 as specified in the additional reasoned opinion, or the measures necessary for the closure of the landfill sites for which the operating permit was not renewed have not been taken, contrary to Article 14(b) and (c) of that directive.23The Italian Republic disputes the Commission’s allegations. As regards the alleged breach of the obligation imposed by Article 14(b) and (c) of the directive to adopt a final decision on the bringing into line or closure of existing landfills and the ambiguity in the measures taken by the Italian authorities, the Italian Republic observes, first, that the competent authorities have adopted a final decision ordering the closure of 18 of the 22 landfills, while 4 other landfills, located in Puglia, were subject to final decisions providing for them to be brought into line with the provisions of that directive and, second, as regards the other 22 landfills identified by the Commission, that the Commission does not dispute the validity of the definitive closure measures adopted by the competent authorities but only the breach of the obligation to complete closure before expiry of the 16 July 2009 deadline.24In many cases, the competent authorities have, as a first step, ordered the conditioning of the landfill concerned and authorised its operation, prior to deciding, as a second step, the final closure of that landfill because of the failure to bring it into line within the prescribed period or after the termination of activity. The final closure of the landfill concerned had, in this case, been carried out in implementation of the provisions laid down in the single act which approved both the site-conditioning plan and the closure plan, which explains the alleged ambiguity of the decisions cited by the Italian authorities, which ambiguity is purely in form. Findings of the Court 25Under Article 14 of Directive 1999/31, Member States must take measures in order that landfills which have been granted a permit, or which are already in operation at the time of transposition of that directive, namely 16 July 2001 at the latest, may not continue to operate unless all measures mentioned in that article are accomplished as soon as possible and by 16 July 2009 at the latest.26It follows from the case-law of the Court that Article 14 introduces a transitional derogating system in order to bring those landfills into line with the new environmental requirements (judgment of 25 February 2016, Commission v Spain, C‑454/14, not published, EU:C:2016:117, paragraph 36 and the case-law cited).27In particular, Article 14(b), of Directive 1999/31 requires, first, that the competent authority take a definite decision on whether operations may continue on the basis of a conditioning plan and that directive and, secondly, that the Member States take the necessary measures to close down as soon as possible sites which have not been granted, in accordance with Article 8 of that directive, a permit to continue to operate.28Article 14(c) of Directive 1999/31 provides, in essence, that, on the basis of the site-conditioning plan, the competent authority is to authorise the necessary work and lay down a transitional period for the implementation of the plan, the requirement being that any existing landfill must comply with the requirements of that directive before 16 July 2009.29In order to establish a failure to fulfil obligations under that directive, its existence must, in accordance with the Court’s settled case-law, be assessed by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, so that subsequent changes cannot be taken into account by the Court (judgment of 18 October 2018, Commission v Romania, C‑301/17, not published, EU:C:2018:846, paragraph 42 and the case-law cited).30In the present case, the relevant date is that which was fixed in the additional reasoned opinion, namely 19 October 2015.31Admittedly, the Italian Republic has taken steps towards either the closure of sites which have not been granted a permit to continue operating, or the completion of the work required in accordance with the site-conditioning plans approved by the competent authorities.32However, it is not in dispute between the parties that, first, the landfill sites of Avigliano (area of Serre Le Brecce), Ferrandina (area of Venita), Genzano di Lucania (area of Matinella), Latronico (area of Torre), Lauria (area of Carpineto), Maratea (area of Montescuro), Moliterno (area of Tempa La Guarella), Potenza (area of Montegrosso-Pallareta), Rapolla (area of Albero in Piano), Sant’Angelo Le Fratte (area of Farisi), Capistrello (area of Trasolero), Francavilla (Valle Anzuca), L’Aquila (area of Ponte delle Grotte), Canosa (CO.BE.MA), Torviscosa (Caffaro (undertaking)), Corleto Perticara (area of Tempa Masone), Marsico Nuovo (area of Galaino), Matera (area of La Martella), Rionero in Volture (area of Ventaruolo), Salandra (area of Piano del Governo), Senise (area of Palomabara), Tito (area of Aia dei Monaci), Capestrano (area of Tirassegno), Castellalto (area of Colle Coccu), Castelvecchio Calvisio (area of Termine), Corfinio (area of Cannucce), Corfinio (area of Case querceto), Mosciano S. Angelo (area of Santa Assunta), S. Omero (area of Ficcadenti), Montecorvino Pugliano (area of Parapoti) and Torviscosa (area of La Valletta) had not been closed, in accordance with Directive 1999/31, by 19 October 2015 and still were not in line with that directive at the date on which the present action was brought.33With regard, second, to the landfills of Andria (D’Oria G. & C.) Bisceglie (CO.GE.SER), Andria (F.lli Acquaviva), Trani (BAT-Igea), Atella (area of Cafaro), Pescopagano (area of Domacchia), Tito (area of Valle del Forno), it has been confirmed by the parties at the hearing that the works to bring them into line with that directive were completed during 2017 and 2018, that is to say after 19 October 2015.34Thirdly, concerning the landfills of Potenza (area of Montegrosso-Pallareta), Roccanova (area of Serre), Campotosto (area of Reperduso), San Mauro Forte (area of Priati), San Bartolomeo in Galdo (area of Serra Pastore) and Trivigano (formerly Cava Zof), the Italian Republic claimed at the hearing that those landfills had been brought into line with Directive 1999/31. However, even if the Commission had been placed in a position to be aware of the documents produced by the Italian Republic on the eve of the hearing, which tend to show that those landfills were actually brought into line with that directive, which the Commission in fact disputed, it must be pointed out that it is not in dispute that, if that is proven, those landfills were brought into line only after 19 October 2015.35Finally, as regards the arguments put forward by the Italian Republic to explain its failure to fulfil its obligations under Directive 1999/31, it should be noted that, in accordance with the settled case-law of the Court, a Member State may not plead situations in its internal legal order in order to justify a failure to comply with obligations and time limits arising under EU law (judgment of 18 October 2018, Commission v Romania, C‑301/17, not published, EU:C:2018:846, paragraph 45 and the case-law cited).36Accordingly, it must be held that the action brought by the Commission is well founded.37Having regard to all the foregoing considerations, it must be held that, by having failed to adopt, with regard to the landfill sites of Avigliano (area of Serre Le Brecce), Ferrandina (area of Venita), Genzano di Lucania (area of Matinella), Latronico (area of Torre), Lauria (area of Carpineto), Maratea (area of Montescuro), Moliterno (area of Tempa La Guarella), both landfill sites of Potenza (area of Montegrosso-Pallareta), the landfill sites of Rapolla (area of Albero in Piano), Roccanova (area of Serre), Sant’Angelo Le Fratte (area of Farisi), Campotosto (area of Reperduso), Capistrello (area of Trasolero), Francavilla (Valle Anzuca), L’Aquila (area of Ponte delle Grotte), Andria (D’Oria G. & C.), Canosa (CO.BE.MA), Bisceglie (CO.GE.SER), Andria (F.lli Acquaviva), Trani (BAT-Igea), Torviscosa (Caffaro (undertaking)), Atella (area of Cafaro), Corleto Perticara (area of Tempa Masone), Marsico Nuovo (area of Galaino), Matera (area of La Martella), Pescopagano (area of Domacchia), Rionero in Volture (area of Ventaruolo), Salandra (area of Piano del Governo), San Mauro Forte (area of Priati), Senise (area of Palomabara), Tito (area of Aia dei Monaci), Tito (area of Valle del Forno), Capestrano (area of Tirassegno), Castellalto (area of Colle Coccu), Castelvecchio Calvisio (area of Termine), Corfinio (area of Cannucce), Corfinio (area of Case querceto), Mosciano S. Angelo (area of Santa Assunta), S. Omero (area of Ficcadenti), Montecorvino Pugliano (area of Parapoti), San Bartolomeo in Galdo (area of Serra Pastore), Trivigano (formerly Cava Zof) and Torviscosa (area of La Valletta), all the measures necessary in order that, as soon as possible, in accordance with Article 7(g) and Article 13 of Directive 1999/31, those landfill sites in the above list which have not obtained, in accordance with Article 8 of that directive, a permit to continue to operate, may be closed, or by failing to adopt the measures necessary to bring those landfill sites which have obtained a permit to continue to operate into line with that directive, without prejudice to the conditions laid down in Annex I, point 1, to that directive, the Italian Republic has failed to fulfil its obligations under Article 14(b) and (c) of Directive 1999/31. Costs 38Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful in its submissions, the latter must be ordered to pay the costs.On those grounds, the Court (Fifth Chamber) hereby: 1. Declares that, by having failed to adopt, with regard to the landfill sites of Avigliano (area of Serre Le Brecce), Ferrandina (area of Venita), Genzano di Lucania (area of Matinella), Latronico (area of Torre), Lauria (area of Carpineto), Maratea (area of Montescuro), Moliterno (area of Tempa La Guarella), both landfill sites of Potenza (area of Montegrosso-Pallareta), the landfill sites of Rapolla (area of Albero in Piano), Roccanova (area of Serre), Sant’Angelo Le Fratte (area of Farisi), Campotosto (area of Reperduso), Capistrello (area of Trasolero), Francavilla (Valle Anzuca), L’Aquila (area of Ponte delle Grotte), Andria (D’Oria G. & C. Snc), Canosa (CO.BE.MA), Bisceglie (CO.GE.SER), Andria (F.lli Acquaviva), Trani (BAT-Igea Srl), Torviscosa (Caffaro (undertaking)), Atella (area of Cafaro), Corleto Perticara (area of Tempa Masone), Marsico Nuovo (area of Galaino), Matera (area of La Martella), Pescopagano (area of Domacchia), Rionero in Volture (area of Ventaruolo), Salandra (area of Piano del Governo), San Mauro Forte (area of Priati), Senise (area of Palomabara), Tito (area of Aia dei Monaci), Tito (area of Valle del Forno), Capestrano (area of Tirassegno), Castellalto (area of Colle Coccu), Castelvecchio Calvisio (area of Termine), Corfinio (area of Cannucce), Corfinio (area of Case querceto), Mosciano S. Angelo (area of Santa Assunta), S. Omero (area of Ficcadenti), Montecorvino Pugliano (area of Parapoti), San Bartolomeo in Galdo (area of Serra Pastore), Trivigano (formerly Cava Zof) and Torviscosa (area of La Valletta), all the measures necessary in order that, as soon as possible, in accordance with Article 7(g) and Article 13 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, those landfill sites in the above list which have not obtained, in accordance with Article 8 of that directive, a permit to continue to operate, may be closed, or by failing to adopt the measures necessary to bring those landfill sites which have obtained a permit to continue to operate into line with that directive, without prejudice to the conditions laid down in Annex I, point 1, to that directive, the Italian Republic has failed to fulfil its obligations under Article 14(b) and (c) of Directive 1999/31; 2. Orders the Italian Republic to pay the costs. [Signatures]( *1 ) Language of the case: Italian. | f82e4-d9fd40c-4ca6 | EN |
An internal border of a Member State at which border control has been reintroduced cannot be equated with an external border within the meaning of the ‘Returns Directive’ | 19 March 2019 ( *1 )(Reference for a preliminary ruling — Area of freedom, security and justice — Border control, asylum and immigration — Regulation (EU) 2016/399 — Article 32 — Temporary reintroduction of border control by a Member State at its internal borders — Illegal entry of a third-country national — Equation of internal borders with external borders — Directive 2008/115/EC — Scope — Article 2(2)(a))In Case C‑444/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, France), made by decision of 12 July 2017, received at the Court on 21 July 2017, in the proceedings Préfet des Pyrénées-Orientales v Abdelaziz Arib, Procureur de la République près le tribunal de grande instance de Montpellier, Procureur général près la cour d’appel de Montpellier, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal, E. Regan, T. von Danwitz, C. Toader and C. Lycourgos (Rapporteur), Presidents of Chambers, A. Rosas, E. Juhász, M. Ilešič, J. Malenovský, M. Safjan, D. Šváby, C.G. Fernlund and C. Vajda, Judges,Advocate General: M. Szpunar,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 12 June 2018,after considering the observations submitted on behalf of:–the préfet des Pyrénées-Orientales, by F.-H. Briard and S. Bonichot, avocats,the French Government, by E. de Moustier, E. Armoët and D. Colas, acting as Agents,the German Government, by R. Kanitz, acting as Agent,the European Commission, by C. Cattabriga and G. Wils, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 17 October 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 32 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1) (‘Schengen Borders Code’), and of Articles 2(2)(a) and 4(4) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).2The request has been made in proceedings between the préfet des Pyrénées-Orientales (Prefect of the Pyrénées-Orientales, France) (‘the Prefect’), on the one hand, and Mr Abdelaziz Arib, the procureur de la République près le tribunal de grande instance de Montpellier (Public Prosecutor at the Regional Court, Montpellier, France) and the procureur général près la cour d’appel de Montpellier (Principal Public Prosecutor at the Court of Appeal, Montpellier), on the other hand, concerning the extension of the administrative detention of Mr Arib, who entered France illegally. Legal context EU law The CISA 3The Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen on 19 June 1990, which entered into force on 26 March 1995 (OJ 2000 L 239, p. 19) (‘the CISA’), forms part of the Schengen acquis.4Article 26 of the CISA reads:‘1. The Contracting Parties undertake, subject to the obligations resulting from their accession to the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, to incorporate the following rules into their national law:(a)If aliens are refused entry into the territory of one of the Contracting Parties, the carrier which brought them to the external border by air, sea or land shall be obliged immediately to assume responsibility for them again. At the request of the border surveillance authorities the carrier shall be obliged to return the aliens to the third State from which they were transported or to the third State which issued the travel document on which they travelled or to any other third State to which they are certain to be admitted.(b)The carrier shall be obliged to take all the necessary measures to ensure that an alien carried by air or sea is in possession of the travel documents required for entry into the territories of the Contracting Parties.2. The Contracting Parties undertake, subject to the obligations resulting from their accession to the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, and in accordance with their constitutional law, to impose penalties on carriers which transport aliens who do not possess the necessary travel documents by air or sea from a Third State to their territories.3. Paragraphs 1(b) and 2 shall also apply to international carriers transporting groups overland by coach, with the exception of border traffic.’ The Schengen Borders Code 5Under Article 2 of the Schengen Borders Code:‘For the purposes of this Regulation the following definitions apply:1.“internal borders” means:the common land borders, including river and lake borders, of the Member States;the airports of the Member States for internal flights;(c)sea, river and lake ports of the Member States for regular internal ferry connections;2.“external borders” means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders;…’6Article 5 of the code provides:‘1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day.Member States shall notify the list of their border crossing points to the Commission in accordance with Article 39.…3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. Those penalties shall be effective, proportionate and dissuasive.’7Article 13(1) of the code provides:‘The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. A person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC.’8Under Article 14 of the Schengen Borders Code:‘1. A third-country national who does not fulfil all the entry conditions laid down in Article 6(1) and does not belong to the categories of persons referred to in Article 6(5) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned.6. Detailed rules governing refusal of entry are given in Part A of Annex V.’9Article 23 of the code, entitled ‘Checks within the territory’, states:‘The absence of border control at internal borders shall not affect:the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures:(i)do not have border control as an objective;(ii)are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime;(iii)are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders;(iv)are carried out on the basis of spot-checks;10Article 25 of the code provides:‘1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period of up to 30 days or for the foreseeable duration of the serious threat if its duration exceeds 30 days. The scope and duration of the temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat.2. Border control at internal borders shall only be reintroduced as a last resort, and in accordance with Articles 27, 28 and 29. The criteria referred to, respectively, in Articles 26 and 30 shall be taken into account in each case where a decision on the reintroduction of border control at internal borders is considered pursuant, respectively, to Article 27, 28 or 29.3. If the serious threat to public policy or internal security in the Member State concerned persists beyond the period provided for in paragraph 1 of this Article, that Member State may prolong border control at its internal borders, taking account of the criteria referred to in Article 26 and in accordance with Article 27, on the same grounds as those referred to in paragraph 1 of this Article and, taking into account any new elements, for renewable periods of up to 30 days.4. The total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months. Where there are exceptional circumstances as referred to in Article 29, that total period may be extended to a maximum length of two years, in accordance with paragraph 1 of that Article.’11Article 32 of the Schengen Borders Code reads:‘Where border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis.’12Articles 5, 13 and 14 of the code form part of Title II thereof, entitled ‘External borders’, whereas Articles 23, 25 and 32 of the code form part of Title III thereof, entitled ‘Internal borders’.13Under point 2 of Part A of Annex V to the Schengen Borders Code:‘If a third-country national who has been refused entry is brought to the border by a carrier, the authority responsible locally shall:order the carrier to take charge of the third-country national and transport him or her without delay to the third country from which he or she was brought, to the third country which issued the document authorising him or her to cross the border, or to any other third country where he or she is guaranteed admittance, or to find means of onward transportation in accordance with Article 26 of the [CISA] and Council Directive 2001/51/EC …;pending onward transportation, take appropriate measures, in compliance with national law and having regard to local circumstances, to prevent third-country nationals who have been refused entry from entering illegally.’ Directive 2008/115 14Recital 5 of Directive 2008/115 states:‘This Directive should establish a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State.’15Article 2 of the directive provides:‘1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.2. Member States may decide not to apply this Directive to third-country nationals who:are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.16Under Article 3 of the directive:‘For the purpose of this Directive the following definitions shall apply:(2)“illegal stay” means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State;(3)“return” means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to:his or her country of origin, ora country of transit in accordance with Community or bilateral readmission agreements or other arrangements; oranother third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;17Article 4(4) of the directive provides:‘With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall:ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1)(b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) andrespect the principle of non-refoulement.’ French law 18Under the first and second paragraphs of Article L. 621-2 of the code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the entry and stay of foreign nationals and the right of asylum) as amended by Law No 2012-1560 of 31 December 2012 (‘the Ceseda’):‘A foreign national who is not a national of a Member State of the European Union shall be liable to a sentence of one year’s imprisonment and a fine of EUR 3750:(1)if he has entered the territory of Metropolitan France without satisfying the conditions laid down in Article 5(1)(a), (b) or (c) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [(OJ 2006 L 105, p. 1)] and without having been admitted to that territory pursuant to Article 5(4)(a) and (c) of that regulation; the same shall apply where an alert has been issued for the purpose of refusing the foreign national entry pursuant to an enforceable decision adopted by another State party to the [CISA];or if, arriving directly from the territory of a State party to that convention, he has entered the territory of Metropolitan France without complying with the requirements of Article 19(1) or (2), Article 20(1) and Article 21(1) or (2) thereof, with the exception of the conditions referred to in Article 5(1)(e) of Regulation (EC) No 562/2006 … and in Article 5(1)(d) thereof where the alert for the purpose of refusing entry does not result from an enforceable decision adopted by another State party to the [CISA];For the purposes of this article, criminal proceedings may be instituted only in cases where the facts have been found in the circumstances provided for in Article 53 of the Code of Criminal Procedure.’19Article 53 of the code de la procédure pénale (Code of Criminal Procedure), in the version applicable to the dispute in the main proceedings, provides:‘A crime or other offence shall be classified as in flagrante delicto where it is in the course of being committed or has just been committed. A crime or other offence shall also be so classified where, at a time very close to the act, the person suspected is pursued by hue and cry, is found in the possession of articles, or has on or about him traces or clues so as to give grounds for believing that he has taken part in the crime or other offence.Following the discovery of a crime or other offence classified as in flagrante delicto, the investigation conducted under the supervision of the public prosecutor under the conditions provided for by the present chapter may continue without interruption for eight days.Where the investigations necessary for establishing the truth in relation to a crime or other offence punishable by a term of at least five years’ imprisonment cannot be postponed, the public prosecutor may decide to extend the investigation, subject to the same conditions, by a maximum of eight days.’20Article 62-2 of the Code of Criminal Procedure states:‘Police custody is a coercive measure decided upon by a senior law-enforcement officer, under the supervision of the courts, whereby a person reasonably suspected on one or more grounds of having committed or attempted to commit a crime or other offence punishable by imprisonment is held at the disposal of investigators.21Article 78-2 of Code of Criminal Procedure provides:‘Senior law-enforcement officers and, upon their orders and under their responsibility, the law-enforcement officers and assistant law-enforcement officers referred to in Articles 20 and 21-1 may ask any person to prove his identity by any means, where one or more plausible reasons exist for suspecting that:the person has committed or attempted to commit an offence;or the person is preparing to commit a crime or other offence;or the person is likely to provide information useful for the investigation in the event of a crime or other offence;or the person has breached the obligations or prohibitions to which he is subject in the context of judicial supervision, house arrest with electronic surveillance, a sentence or a measure followed by the judge responsible for the execution of sentences;or the person is the subject of inquiries ordered by a judicial authority.On the public prosecutor’s written recommendations for the purposes of the investigation and prosecution of offences specified by him, the identity of any person may also be checked, in accordance with the same rules, in the places and for a period of time determined by the public prosecutor. The fact that the identity check uncovers offences other than those referred to in the public prosecutor’s recommendations shall not constitute a ground for invalidating related proceedings.The identity of any person, regardless of his conduct, may also be checked pursuant to the rules set out in the first paragraph to prevent a breach of public order, in particular, an offence against the safety of persons or property.In an area between the land border of France with the States party to the [CISA] and a line drawn 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic and designated by order, for the prevention and investigation of cross-border crime, the identity of any person may also be checked, in accordance with the rules provided for in the first paragraph, in order to ascertain whether the obligations laid down by law to hold, carry and produce papers and documents are fulfilled. … Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the 20-kilometre line, the identity check may also take place up to that first tollbooth on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order. The fact that the identity check uncovers an offence other than the non-observance of the aforementioned obligations shall not constitute a ground for invalidating related proceedings. For the purposes of this paragraph, checks related to the obligations laid down by law to hold, carry and produce papers and documents may only be carried out in any given location for a period not exceeding six consecutive hours and may not consist in systematic checks on persons present in or moving within the areas or places referred to in this paragraph. The dispute in the main proceedings and the questions referred for a preliminary ruling 22Following the temporary reintroduction in France of border control at its common internal borders with other Member States forming part of the Schengen area, under Article 25 of the Schengen Borders Code, Mr Arib, a Moroccan national, was checked on 15 June 2016 in the area between the border of France with Spain and a line drawn 20 kilometres inside that border, under the conditions set out in the ninth paragraph of Article 78-2 of the Code of Criminal Procedure. Mr Arib, who had previously left France pursuant to a removal order notified to him on 10 August 2013, was on board a coach travelling from Morocco.23Mr Arib was held in police custody on suspicion of illegal entry into French territory, an offence under Article L. 621-2 of the Ceseda. The following day, the Prefect made an order against Mr Arib requiring him to leave France and ordered his administrative detention.24By order of 21 June 2016, the judge responsible for matters relating to liberty and detention at the tribunal de grande instance de Perpignan (Regional Court, Perpignan, France) decided to annul Mr Arib’s detention in police custody and subsequent proceedings, including his administrative detention on the ground, essentially, that it was not possible to detain him. He observed, in that respect, that Mr Arib, an illegally staying third-country national, had crossed an internal border between France and Spain, which, in his view, triggered the application of Directive 2008/115 under which no term of imprisonment can be imposed in circumstances such as those in the present case.25By order of 22 June 2016, the delegated magistrate at the cour d’appel de Montpellier (Court of Appeal, Montpellier, France) upheld the decision taken at first instance. The Prefect lodged an appeal in cassation against that order before the referring court, the Cour de cassation (Court of Cassation, France), submitting, inter alia, that where there is a serious threat to public policy or internal security, a Member State may exceptionally reintroduce border control at its internal borders, thus partially disapplying Directive 2008/115. According to the Prefect, since the protective measures laid down in the directive are not applicable in such a case, a person who entered France illegally may be checked in accordance with the ninth paragraph of Article 78-2 of the Code of Criminal Procedure and, by virtue of his or her illegal stay, face a term of imprisonment and, accordingly, be held in custody.26The referring court notes that (i) the Schengen Borders Code lays down the principle of free movement within the Schengen area and provides for the absence of internal border control between Member States, and (ii) where there is a serious threat to public policy or internal security in a Member State, the latter may nevertheless exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period under Article 25 of the code.27The referring court also argues that, according to Article 32 of the Schengen Borders Code, where border control is reintroduced at internal borders, the relevant provisions of Title II of the code relating to external borders apply mutatis mutandis. The referring court notes, in that regard, that under Article 5(3) of the code, Member States are to introduce effective, proportionate and dissuasive penalties for the unauthorised crossing of external borders. In addition, Article 13 of the code states that the objective of border surveillance is to prevent unauthorised border crossings and to take measures against persons who have crossed the border illegally, so that a person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned is to be apprehended and made subject to procedures respecting Directive 2008/115.28According to the referring court, Directive 2008/115 requires Member States to issue a removal order against any third-country national illegally staying on their territory, who may be detained only to prepare his or her return or carry out the removal process in so far as no other sufficient but less coercive measures can be applied effectively. The referring court recalls the judgment of 7 June 2016, Affum (C‑47/15, EU:C:2016:408), in which the Court held that Directive 2008/115 precludes legislation of a Member State which permits a third-country national in respect of whom the return procedure established by that directive has not yet been completed to be imprisoned merely on account of illegal entry across an internal border, resulting in an illegal stay.29The referring court points out that, under Article L. 621-2 of the Ceseda, illegal entry into the territory is punishable by a term of imprisonment and a fine in cases of flagrante delicto.30In the light of that provision, the referring court asks, first, whether border control that has been reintroduced at an internal border of a Member State may be equated with border control at an external border in connection with the crossing of that border by a third-country national who does not have a right of entry, when the control is carried out in cases of flagrante delicto.31Should the answer to that question be in the affirmative, the referring court takes the view that the rules governing that control would have to be determined. In that regard, the referring court notes that, on the one hand, Article 2(2)(a) of Directive 2008/115 permits the Member States to continue to apply simplified national return procedures at their external borders, without having to follow all the procedural stages prescribed by the directive, in order to be able to remove more swiftly third-country nationals intercepted when crossing those borders. It points out that, on the other hand, Article 4(4) of Directive 2008/115 regulates the exercise by the Member States of the power provided for in Article 2(2)(a) thereof, given that the Member States have to observe certain minimum guarantees, which include, in particular, the conditions of detention laid down in Articles 16 and 17 of the directive.32The referring court therefore asks whether a State that has reintroduced border control at internal borders may rely upon Article 2(2)(a) in order to exclude from the scope of Directive 2008/115 a third-country national who crosses one such border illegally and has not yet stayed in national territory.33Should the answer be in the affirmative, the question then arises as to whether Article 4(4) of Directive 2008/115 is to be interpreted as not precluding the imprisonment of third-country nationals in the factual context of the present case.34In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Is Article 32 of [the Schengen Borders Code] — which provides that, when border control at internal borders is reintroduced, the relevant provisions of Title II (relating to external borders) are to apply mutatis mutandis — to be interpreted as meaning that border controls reintroduced at an internal border of a Member State may be equated with border controls at an external border, when that border is crossed by a third-country national who has no right of entry?In the same circumstances of reintroduction of controls at internal borders, do that [code] and Directive 2008/115 … permit the application, to the situation of a third-country national crossing a border at which controls have been reintroduced, of the power, conferred on the Member States by Article 2(2)(a) of the directive, to continue to apply simplified national return procedures at their external borders?Should the answer to the previous question be in the affirmative, do the provisions of Article 2(2)(a) and of Article 4(4) of the directive preclude national legislation such as Article L. 621-2 of the [Ceseda], which penalises with a term of imprisonment the illegal entry into national territory of a third-country national in respect of whom the return procedure established by that directive has not yet been completed?’ Consideration of the questions referred The first and second questions 35By its first and second questions, which should be examined together, the referring court asks, in essence, whether Article 2(2)(a) of Directive 2008/115, read in conjunction with Article 32 of the Schengen Borders Code, must be interpreted as applying to the situation of a third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, where that Member State has reintroduced border control at that border, pursuant to Article 25 of the code, on account of a serious threat to public policy or internal security in that Member State.36As a preliminary point, it is important to note that, as mentioned in paragraphs 22 and 23 of this judgment, Mr Arib, a Moroccan national, is not subject to a refusal of entry into French territory but that he was checked by French authorities in the immediate vicinity of the border between France and Spain after border control at that border was reintroduced in accordance with Article 25 of the Schengen Borders Code, and was held in custody following that check on suspicion of having committed the offence of illegal entry into French territory set out in Article L. 621-2 of the Ceseda.37It should be pointed out, in that regard, first, that it follows from both the definition of the concept of ‘illegal stay’, set out in Article 3(2) of Directive 2008/115, and recital 5 of the directive, according to which the directive applies ‘to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence’, that a third-country national who, after entering the territory of a Member State illegally, is present on that territory without fulfilling the conditions for entry, stay or residence is, by virtue of that fact, staying there illegally, without such presence being subject to a condition requiring a minimum duration or an intention to remain on that territory (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraphs 48 and 59).38A third-country national who, like Mr Arib, after entering the territory of a Member State illegally is intercepted on the territory of that Member State in the immediate vicinity of one of its internal borders, without fulfilling the conditions for entry, stay or residence in that territory, must accordingly be regarded as staying illegally on the territory of that Member State.39A third-country national in that situation falls, under Article 2(1) of Directive 2008/115, and without prejudice to Article 2(2) of the directive, within the scope of the directive. He must therefore, in principle, be subject to the common standards and procedures laid down by the directive for the purpose of his removal, as long as his stay has not, as the case may be, been regularised (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 61).40In that respect, it should be noted, secondly, that according to the Court’s case-law, Directive 2008/115 does not preclude legislation of a Member State which permits the imprisonment of a third-country national to whom the return procedure established by the directive has been applied and who either is staying illegally on the territory of that Member State without a justified ground for non-return or has re-entered the territory in breach of an entry ban (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraphs 54 and 64).41It is apparent, however, from the case file before the Court and from the replies to the Court’s questions submitted at the hearing that Mr Arib does not find himself in either of the situations mentioned in the previous paragraph.42It must be stated, thirdly, that Article 2(2)(a) of Directive 2008/115 allows Member States not to apply the directive, without prejudice to the provisions in Article 4(4) thereof, in two particular instances, namely where third-country nationals are subject to a refusal of entry across an external border of a Member State in accordance with Article 14 of the Schengen Borders Code, or where third-country nationals are apprehended or intercepted in connection with the irregular crossing of an external border and have not subsequently obtained an authorisation or a right to stay in that Member State.43As set out in paragraph 36 of this judgment, Mr Arib is not subject to a refusal of entry into French territory. It follows that he cannot, in any event, fall within the first of the two situations covered by Article 2(2)(a) of Directive 2008/115.44Accordingly, it should be determined whether a third-country national who is staying illegally on the territory of a Member State and was apprehended in the immediate vicinity of an internal border of that Member State comes under the second situation covered by Article 2(2)(a) of Directive 2008/115, where the Member State concerned has reintroduced border control at that border on account of a serious threat to public policy or internal security in that Member State, in accordance with Article 25 of the Schengen Borders Code.45In that context, it must be recalled, first, that according to the Court’s case-law, the two situations covered by Article 2(2)(a) of Directive 2008/115 relate exclusively to the crossing of the external border of a Member State, as defined in Article 2 of the Schengen Borders Code, and therefore do not concern the crossing of a common border of Member States forming part of the Schengen area (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 69).46Specifically, the second situation covered by Article 2(2)(a) of Directive 2008/115 implies a direct temporal and spatial link between the apprehension or interception of the third-country national and the crossing of an external border. That situation therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 72).47Accordingly, Article 2(2)(a) of Directive 2008/115 must be interpreted as not permitting Member States to exclude certain illegally staying third-country nationals from the directive’s scope on the ground of illegal entry across an internal border (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraphs 69 and 77).48It should however be determined, secondly, whether the fact that border control was reintroduced by a Member State at its internal borders, in accordance with Article 25 of the Schengen Borders Code, is such as to cause the situation of a third-country national who is staying illegally on the territory of that Member State and has been apprehended near that internal border fall within Article 2(2)(a) of Directive 2008/115.49Article 25 of the Schengen Borders Code allows, exceptionally and under certain conditions, a Member State to reintroduce temporarily border control at all or specific parts of its internal borders where there is a serious threat to public policy or internal security in that Member State. Under Article 32 of the code, where border control at internal borders is reintroduced, the relevant provisions of the code relating to external borders are to apply mutatis mutandis.50In that regard, it should be noted, first, that as a derogation from the scope of Directive 2008/115, the exception in Article 2(2)(a) of the directive must be interpreted strictly.51It is already apparent from paragraphs 45 and 47 of this judgment that this provision, according to its own terms that are unambiguous in this respect, concerns the situation of a third-country national who finds himself at the ‘external border’ of a Member State or in the immediate vicinity of one such external border. There is no mention of the fact that the situation of a third-country national who finds himself at an internal border at which border control has been reintroduced pursuant to Article 25 of the Schengen Borders Code, or in the immediate vicinity of one such internal border, may be equated with the situation mentioned in the previous sentence, even though on the day on which the directive was adopted, Articles 23 and 28 of Regulation No 562/2006 already provided (i) that the Member States could exceptionally reintroduce border control at their internal borders where there was a serious threat to their public policy and internal security and (ii) that in such a case the relevant provisions of that regulation relating to external borders were to apply mutatis mutandis.52With regard, secondly, to the intended purpose of Article 2(2)(a) of Directive 2008/115, the Court has previously held that it permits the Member States, in the two situations covered by that article, to continue to apply simplified national return procedures at their external borders, without having to follow all the procedural stages prescribed by the directive, in order to be able to remove more swiftly third-country nationals intercepted in connection with the crossing of one such border (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 74).53In that context, it should be stated that Article 2(2)(a) of Directive 2008/115 treats equally interceptions or apprehensions in the immediate vicinity of the external border of a Member State, which are covered by Article 13 of the Schengen Borders Code, and the adoption of a refusal of entry for the purpose of Article 14 of the code.54If indeed, as confirmed by Article 14(4) of the Schengen Borders Code, the adoption of a refusal of entry into the territory of the Schengen area aims to preclude the third-country national subject to that refusal from entering that territory, the apprehension or interception of that person, who is staying illegally, in connection with the crossing of an external border or in the immediate vicinity of one such border, also allows the competent national authorities to take the necessary measures easily and swiftly, given the place where that person was apprehended, in order to prevent that person from staying on that territory by immediately returning that person to the external border that he or she has crossed illegally.55In those circumstances, which are characterised, inter alia, by the vicinity to an external border, a Member State may be justified in failing to follow all the procedural stages prescribed by Directive 2008/115 in order to speed up the return to a third country of third-country nationals staying on its territory illegally.56Conversely, the mere reintroduction of border control at the internal borders of a Member State does not mean that an illegally staying third-country national apprehended in connection with the crossing of that border, or in the immediate vicinity thereof, may be removed more swiftly or more easily from the territory of the Schengen area by being returned immediately to an external border than if he had been apprehended in connection with a police check for the purpose of Article 23(a) of the Schengen Borders Code, in the same place, without border control having been reintroduced at those borders.57Contrary to the argument submitted, in essence, by the German Government, that conclusion is not called into question when account is taken of the obligations imposed on carriers under point 2 of Part A of Annex V to the Schengen Borders Code and Article 26 of the CISA.58Indeed, even if such obligations were, under Article 32 of the Schengen Borders Code, to apply also where border control at internal borders has been reintroduced, it should nevertheless be noted that point 2 of Part A of Annex V to the Schengen Borders Code and Article 26 of the CISA impose on carriers an obligation of onward transportation of the third-country national they are transporting only when that person has been refused entry across the border and not, as for Mr Arib, when that person is apprehended or intercepted after crossing the border illegally.59It follows that, in the light of the objective pursued by Article 2(2)(a) of Directive 2008/115, there is no need to treat differently the situation of an illegally staying third-country national, apprehended in the immediate vicinity of an internal border, depending on whether or not border control has been reintroduced at that border.60Thirdly, the need for the scope of Article 2(2)(a) of Directive 2008/115 to be interpreted restrictively is further supported by an analysis of the context of which that provision forms part and, specifically, a systematic reading of the Schengen Borders Code.61In this respect, the Court notes, first, that it follows from the Schengen Borders Code that an internal border at which border control has been reintroduced by a Member State under Article 25 of the code is not tantamount to an external border for the purpose of that code.62Under Article 2 of the Schengen Borders Code, the concepts of ‘internal borders’ and ‘external borders’ are mutually exclusive. As it is, Article 32 of the code merely provides that, where border control at internal borders is reintroduced by a Member State, only the relevant provisions of the code relating to external borders are to apply mutatis mutandis. However, Article 32 of the code does not provide, as the Advocate General has noted, in essence, in point 52 of his Opinion, that in such a case Article 2(2)(a) of Directive 2008/115 is to be applied. The very wording of the Schengen Borders Code therefore precludes, for the purposes of that directive, an internal border at which border control has been reintroduced under Article 25 of the code from being equated with an external border.63It is also true, as the referring court points out, that Article 5(3) of the Schengen Borders Code requires Member States to introduce effective, proportionate and dissuasive penalties for the unauthorised crossing of an external border other than at border crossing points or at times other than the fixed opening hours.64However, and regardless of whether that provision is a relevant provision, within the meaning of Article 32 of the Schengen Borders Code, and thus applies mutatis mutandis where border control is reintroduced by a Member State at its internal borders, the Court notes, in any event, that this provision is not in any way intended to derogate from the common standards and procedures established by Directive 2008/115, as expressly confirmed in Article 13(1) of the code, which provides that measures are to be taken against persons who have crossed an external border illegally and that, if that person has no right to stay on the territory of the Member State concerned, he or she is to be apprehended and made subject to the procedures respecting Directive 2008/115 (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 90).65Article 13(1) of the Schengen Borders Code thus explains the relationship between border surveillance and the implementation of the return procedures provided for in Directive 2008/115 (judgment of 26 July 2017, Jafari, C‑646/16, EU:C:2017:586, paragraph 69). Accordingly, the measures adopted by Member States, in particular in compliance with Article 5(3) of the Schengen Borders Code, in order to ensure effective border surveillance, cannot lead to a modification of the obligations imposed on Member States by that directive.66Lastly, it is important to recall that Directive 2008/115 does not prevent Member States from being able to impose a sentence of imprisonment to punish the commission of offences other than those stemming from the mere fact of illegal entry, including in situations where the return procedure established by the directive has not yet been completed (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 65). Therefore, the directive does not preclude either the apprehension or detention in custody of an illegally staying third-country national where such measures are adopted on the ground that that person is suspected of having committed an offence other than merely having entered into national territory illegally, in particular an offence that is likely to pose a threat to public policy or internal security in the Member State concerned.67It follows from the foregoing that the answer to the first and second questions is that Article 2(2)(a) of Directive 2008/115, read in conjunction with Article 32 of the Schengen Borders Code, must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the code, on account of a serious threat to public policy or internal security in that Member State. The third question 68In view of the answer to the first and second questions, there is no need to answer the third question. Costs 69Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 2(2)(a) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 32 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the regulation, on account of a serious threat to public policy or internal security in that Member State. [Signatures]( *1 ) Language of the case: French. | 136d0-6c06913-4912 | EN |
The General Court annuls the Commission’s decision that support measures adopted by a consortium governed by private law for the benefit of one of its members constituted ‘aid granted by a State’ | 19 March 2019 ( *1 )(State aid — Measures adopted by a consortium of banks governed by private law for the benefit of one of its members — Measures authorised by the Central Bank of the Member State — Decision declaring the aid incompatible with the internal market — Action for annulment — Definition of State aid — Whether imputable to the State — State resources)In Joined Cases T‑98/16, T‑196/16 and T‑198/16, Italian Republic, represented by G. Palmieri, acting as Agent, and by S. Fiorentino and P. Gentili, avvocati dello Stato,applicant in Case T‑98/16, Banca Popolare di Bari SCpA, formerly Tercas-Cassa di risparmio della provincia di Teramo SpA (Banca Tercas SpA), established in Teramo (Italy), represented by A. Santa Maria, M. Crisostomo, E. Gambaro and F. Mazzocchi, lawyers,applicant in Case T‑196/16, Fondo interbancario di tutela dei depositi, established in Rome (Italy), represented by M. Siragusa, G. Scassellati Sforzolini and G. Faella, lawyers,applicant in Case T‑198/16,supported by Banca d’Italia, represented by M. Perassi, O. Capolino, M. Marcucci and M. Todino, lawyers,intervener in Case T‑198/16,v European Commission, represented by P. Stancanelli, L. Flynn, A. Bouchagiar and D. Recchia, acting as Agents,defendant,APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)) (OJ 2016 L 203, p. 1),THE GENERAL COURT (Third Chamber, Extended Composition),composed of S. Frimodt Nielsen, President, V. Kreuschitz, I.S. Forrester, N. Półtorak (Rapporteur) and E. Perillo, Judges,Registrar: J. Palacio González, Principal Administrator,having regard to the written part of the procedure and further to the hearing on 22 March 2018,gives the following Judgment Background to the dispute 1The present actions were brought by the Italian Republic (Case T‑98/16), Banca Popolare di Bari SCpA (‘BPB’) (Case T‑196/16) and the consortium governed by Italian private law, Fondo interbancario di tutela dei depositi (‘the FITD’) (Case T‑198/16) against Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)) (OJ 2016 L 203, p. 1, ‘the contested decision’).2In the contested decision, the European Commission considered that the measures adopted by the FITD for the benefit of Banca Tercas (Cassa di risparmio della Provincia di Teramo SpA) (‘Tercas’), authorised by the central bank of the Italian Republic, Banca d’Italia (‘the Bank of Italy’), on 7 July 2014 (‘the measures’ or ‘the measures adopted by the FITD for the benefit of Tercas’), constituted unlawful and incompatible State aid which had to be recovered from its beneficiary by the Italian Republic. Entities involved Commercial entities concerned by the measures 3Tercas is a private equity bank which is active principally in the Abruzzo region of Italy. At the end of 2010, Tercas acquired Banca Caripe SpA, a regional bank which also had a presence in that region.4BPB is the holding company of a private equity banking group which is active principally in the south of Italy. FITD 5The FITD is a consortium of banks governed by private law which was established on a voluntary basis in 1987. It is a mutual consortium which was established for the purpose of pursuing the common interests of its members.6The aim of the FITD is to guarantee its members’ deposits (see Article 1 of the statutes of the FITD in the version applicable to the facts of the case, ‘the statutes of the FITD’). In 1996, as a result of the transposition into Italian national law of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5), the FITD was recognised by the Bank of Italy as one of the deposit guarantee schemes that was authorised to operate in Italy pursuant to the rules laid down by that directive. Under Article 27 of its statutes, in the event of the compulsory liquidation of one of its members, the FITD is to intervene by repaying the deposits lodged by depositors with the FITD up to a maximum of EUR 100000 per depositor. Under Article 27(1) of the statutes, claims relating to funds acquired by the members of the consortium with an obligation to repay are eligible for repayment, in euros and foreign currencies, in the form of deposits or any other form, as well as bank cheques and any other equivalent debt instrument.7Since its creation, the FITD has had the power to intervene in favour of its members, not only by way of the deposit guarantee for depositors, which has become statutory (mandatory intervention), but also on a voluntary basis, in accordance with its statutes, if that intervention makes it possible to reduce the burden its members may have to bear as a result of the deposit guarantee (voluntary intervention).8Thus, under Article 28 of its statutes, where provision is made to lessen the burden, the FITD may, instead of making the repayment provided for under the deposit guarantee for depositors in the event of the compulsory liquidation of a member of the consortium, intervene in transactions involving the transfer of assets and liabilities relating to that member (alternative voluntary intervention). Similarly, under Article 29(1) of its statutes, irrespective of whether a compulsory liquidation procedure has been formally initiated, the FITD may decide to intervene by means of finance, guarantees, the acquisition of shares or in the form of other technical support for one of its members placed under special administration, where there are prospects of recovery and a lesser burden is to be expected compared with the burden that would be incurred by the intervention of the FITD in the event of the compulsory liquidation of that member (voluntary intervention by way of support or preventive intervention, as in the case of Tercas).9The FITD’s role, the measures that it may adopt, in particular the support measures for the benefit of its members, and, more specifically, the question as to whether the measures which are the subject matter of the contested decision may be classified as ‘aid granted by a Member State or through State resources’, within the meaning of Article 107(1) TFEU, are at the heart of the present cases. Bank of Italy 10The Bank of Italy is a public authority which performs the function of the central bank of the Italian Republic. It has its own legal personality which is separate from that of the Italian State. As a member of the European System of Central Banks (ESCB), the Bank of Italy must, under Article 127(5) TFEU, contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system.11Among other functions, decreto legislativo, no 385, e successive modifiche e integrazioni, Testo unico delle leggi in materia bancaria e creditizia (Italian Banking Act) of 1 September 1993 (GURI No 230, 30 September 1993, Ordinary Supplement No 92), in the version in force at the material time (‘the Italian Banking Act’), assigns to the Bank of Italy the role of the supervisory authority of the banking sector and gives it the objectives of ensuring the sound and prudent management of supervised institutions, overall stability, the efficiency and competitiveness of the financial system and compliance with the provisions on credit.12In order to achieve those objectives, in particular that of ensuring the sound and prudent management of supervised institutions, the Bank of Italy has extensive supervisory powers, which include administrative monitoring, regulatory powers, inspection powers and numerous authorisation powers. Those powers allow the Bank of Italy to intervene in every key event in which a bank is involved, in a manner consistent with its commercial autonomy, and for the sole purpose of verifying whether its management is sound and prudent.13In the exercise of its rights and powers, the Bank of Italy has, inter alia, approved the statutes of the FITD, assists in FITD meetings as an observer with no voting rights and, in accordance with Article 96b(1)(d) of the Italian Banking Act, has approved the measures adopted by the FITD for the benefit of Tercas. Context and the measures adopted by the FITD for the benefit of Tercas 14On 30 April 2012, on a proposal by the Bank of Italy, which had identified irregularities within Tercas, the Italian Ministry of Economy and Finance decided to place Tercas under special administration.15The Bank of Italy subsequently appointed a special administrator to manage Tercas during the special administration (‘the special administrator’). First attempt to intervene 16In October 2013, after assessing various options, the special administrator started negotiations with BPB, which had expressed an interest in subscribing to a capital increase in Tercas, on condition that a due diligence inquiry into Tercas was first carried out and that the FITD covered in full that bank’s negative equity.17On 28 October 2013, following a request by the special administrator of Tercas on the basis of Article 29 of the statutes of the FITD, the Executive Committee of the FITD decided to support Tercas in an amount up to EUR 280 million. That decision was ratified by the FITD’s Board on 29 October 2013. On 4 November 2013, in accordance with Article 96b(1)(d) of the Italian Banking Act, the Bank of Italy approved that support measure.18Although it had been granted authorisation by the Bank of Italy, the FITD decided to suspend the planned measures in view of uncertainties regarding Tercas’ economic situation and its assets and liabilities and the tax treatment of those measures. On 18 March 2014, following the audit of Tercas’ assets, requested by BPB (see paragraph 16 above), a disagreement arose between the FITD’s and BPB’s experts. That disagreement was subsequently resolved following an arbitration procedure. In addition, the FITD and BPB agreed to share any costs resulting from the taxation of the measures in the event that the tax exemption envisaged was not applied. Decision to intervene and authorisation by the Bank of Italy 19Following the suspension of the measures on 18 March 2014 and in order to satisfy itself that the measures adopted for the benefit of Tercas were economically more advantageous than reimbursement of that bank’s depositors, the FITD instructed an auditing and advisory company. In the light of the conclusions presented by that company in a report dated 26 May 2014 and in view of the cost of the measures compared with the cost of compensation under the deposit guarantee scheme in the event of liquidation, on 30 May 2014, the Executive Committee and the Board of the FITD decided to take steps for the benefit of Tercas.20On 1 July 2014, the FITD sent the Bank of Italy a new authorisation request.21On 7 July 2014, the Bank of Italy authorised the measures to be adopted by the FITD for the benefit of Tercas. This provided for three measures (‘the individual measures at issue’), namely, first, a EUR 265 million contribution intended to cover Tercas’ negative equity; secondly, a guarantee of EUR 35 million intended to cover the credit risk associated with certain exposures of Tercas and, thirdly, a guarantee of EUR 30 million intended to cover the costs arising from the tax treatment of the first measure (see recital 38 and Article 1 of the contested decision). Tercas’ position after the measures adopted by the FITD 22The special administrator of Tercas, in agreement with the Bank of Italy, convened a general meeting in order for shareholders to be able to take a decision on covering the losses discovered during the special administration and a capital increase reserved for BPB.23The Tercas shareholders’ general meeting took place on 27 July 2014 and decided, first, to partially cover the losses, inter alia by reducing the capital to zero and cancelling all of the ordinary shares in circulation and, secondly, to increase the capital to EUR 230 million by issuing new ordinary shares to be offered to BPB. That capital increase took place on 27 July 2014.24On 1 October 2014, Tercas left special administration, and BPB appointed the new bodies of that bank.25In December 2014, BPB increased capital by EUR 500 million, comprising the issue of new shares and the issue of a tier 2 subordinated loan. The capital increase served to reinforce BPB’s capital ratios, which had been affected by the acquisition of Tercas.26In March 2015, BPB subscribed a new increase in Tercas’ capital in the amount of EUR 135.4 million in order to cope with additional losses recorded in the fourth quarter of 2014, to cover restructuring costs in 2015 and 2016, and to improve Tercas’ capital ratios. Those events are not connected to the support measures adopted by the FITD for the benefit of Tercas. The administrative procedure and the contested decision 27On 8 August and 10 October 2014, the Commission requested from the Italian authorities information regarding the measures adopted by the FITD for the benefit of Tercas. Those authorities replied to those requests for information on 16 September and 14 November 2014.28By letter of 27 February 2015, the Commission informed the Italian Republic of its decision to initiate the procedure laid down in Article 108(2) TFEU in respect of that measure.29On 24 April 2015, the Commission published that decision in the Official Journal of the European Union and invited interested parties to submit their comments on the measures adopted by the FITD for the benefit of Tercas. Comments in that regard were submitted to the Commission by the Italian Republic, the Bank of Italy, the FITD, BPB and Tercas (see recitals 44 to 109 of the contested decision).30On 13 August and 17 September 2015, two meetings were held with the Italian authorities and the interested parties.31On 23 December 2015, the Commission adopted the contested decision.32By that decision, the Commission found that the individual measures at issue that were authorised on 7 July 2014 (see paragraph 21 above) in breach of Article 108(3) TFEU constituted unlawful and incompatible aid granted by the Italian Republic to Tercas and ordered the recovery of that aid. In that regard, the Commission took the view that the first individual measure, intended to cover Tercas’ negative equity, was a non-repayable contribution of EUR 265 million, that the second measure, a guarantee of EUR 35 million intended to cover the credit risk associated with certain exposures, had to be valued at EUR 140000 to take account, inter alia, of the fact that those exposures had been fully repaid by the debtors at maturity and therefore the guarantee had not been triggered, and that the third measure, a guarantee of EUR 30 million intended to cover the costs arising from the tax treatment of the first measure, was a non-repayable contribution of an amount equivalent to that of the guarantee. Procedure and forms of order sought 33By application lodged at the Registry of the General Court on 4 March 2016, the Italian Republic brought the action in Case T‑98/16.34By application lodged at the Registry of the General Court on 29 April 2016, BPB brought the action in Case T‑196/16.35By application lodged at the Registry of the General Court on 1 May 2016, the FITD brought the action in Case T‑198/16.36By documents lodged at the Registry of the General Court on 1 August 2016, the Fondo di Garanzia dei Depositanti del credito cooperativo (Cooperative Credit Depositors’ Guarantee Fund) and the Bank of Italy applied for leave to intervene in the proceedings in Case T‑198/16 in support of the form of order sought by the FITD.37Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of that Court’s Rules of Procedure, the Judge-Rapporteur was assigned to the Third Chamber, to which the present cases were consequently allocated.38By order of 15 February 2017, the President of the Third Chamber of the General Court dismissed the Fondo di Garanzia dei Depositanti del credito cooperativo’s application to intervene and granted the Bank of Italy leave to intervene. The latter lodged its statement in intervention and the main parties lodged their observations on that statement within the periods prescribed.39On the proposal of the Third Chamber, the General Court decided, in accordance with Article 28 of the Rules of Procedure, to refer the cases in question to a chamber sitting in extended composition.40By decision of the President of the Third Chamber (Extended Composition) of the General Court of 14 December 2017, Cases T‑98/16, T‑196/16 and T‑198/16 were joined for the purposes of the oral part of the procedure and the final decision, in accordance with Article 68 of the Rules of Procedure.41Acting on a proposal from the Judge-Rapporteur, the General Court (Third Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure, invited the parties to answer a series of questions.42The parties answered those questions on 15 and 16 February 2018.43The parties presented oral argument and answered the questions put to them by the Court at the hearing on 22 March 2018.44In Case T‑98/16, the Italian Republic claims that the Court should:–annul the contested decision;order the Commission to pay the costs.45In Case T‑196/16, BPB claims that the Court should:in the alternative, annul Articles 2 to 4 of the contested decision;46In Case T‑198/16, the FITD, supported by the Bank of Italy, claims that the Court should:in the alternative, annul the contested decision in so far as it establishes and quantifies the aid element in measure 3;47The Commission contends that the Court should:dismiss the actions;order the applicants to pay the costs. Law The admissibility of the action brought by the FITD 48Without formally raising an objection of inadmissibility under Article 130(1) of the Rules of Procedure, the Commission has doubts as to the admissibility of the action brought by the FITD on account of its lack of locus standi. In essence, according to the Commission, since the FITD may be regarded as an intermediary through which the Italian State decided to grant aid and the Italian State has also brought an action, the action brought by that intermediary should therefore be declared inadmissible.49The FITD disputes the Commission’s argument.50It should be noted at the outset that, under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’. Moreover, it should be noted that, since it has legal personality, the FITD is a legal person governed by private law and may bring an action for annulment under Article 263 TFEU.51Therefore, it is necessary to determine whether the FITD is directly and individually concerned by the contested decision.52As regards whether the FITD is directly affected by the contested decision, it should be noted that, according to well-established case-law, two criteria must be satisfied. First, the measure in question must directly affect the legal situation of the applicant and, secondly, that measure must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see judgment of 26 January 2018, Centro Clinico e Diagnostico G. B. Morgagni v Commission, T‑172/16, not published, EU:T:2018:34, paragraph 57 and the case-law cited).53In the present case, the adoption of the contested decision, declaring the individual measures at issue incompatible with the internal market, did not confer on the FITD the right to intervene in support of Tercas. Furthermore, in accordance with Articles 2 and 3 of the contested decision, the Italian Republic is required to recover immediately and effectively the aid granted to the FITD and financed by its members from Tercas and the national authorities have no discretion in that regard. It follows that the contested decision directly affects the legal situation of the FITD within the meaning of the case-law cited in paragraph 52 above. The FITD is therefore directly concerned by the contested decision.54As regards whether the FITD is individually concerned by the contested decision, it is clear from the case-law that the legal position of a body other than a Member State, which has legal personality and has adopted a measure classified as State aid in a final decision by the Commission, may be individually concerned by that decision if the decision prevents it from exercising as it sees fit its own powers, which consist, in particular, in granting the aid at issue (see judgment of 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, EU:T:2014:683, paragraph 83 and the case-law cited).55In the present case, first, it is common ground that the FITD, as a body governed by private law (see paragraph 5 above) which has legal personality, granted and delivered the measures classified as aid in the contested decision. Secondly, as the FITD has argued, the contested decision not only made it impossible for the FITD to adopt a measure for the benefit of Tercas in the present case, but it also precluded the possibility of adopting other support measures in the future, by reducing the FITD’s autonomy and that of its member banks. Thus, the contested decision affects the FITD individually within the meaning of the case-law cited in paragraph 54 above since it prevents the FITD from exercising as its sees fit its own powers, which consist, in the present case, in the adoption of measures other than the repayment of deposits.56The plea of inadmissibility raised by the Commission must therefore be rejected in so far as it seeks to establish that the FITD does not have locus standi under Article 263 TFEU. Substance 57In Case T‑98/16, the Italian Republic puts forward four pleas in law, which relate to the following issues:the financing of the aid through ‘State resources’;the imputability of the aid to the State;the selective advantage conferred by the aid;the incompatibility of the aid with the internal market.58In Case T‑196/16, BPB puts forward seven pleas in law, which relate to:the reasoning with regard to demonstrating the existence of aid ‘granted by the State or through State resources’;the incompatibility of the aid with the internal market;the incorrect classification of the EUR 30 million tax guarantee;the recovery of the aid.59Lastly, in Case T‑198/16, the FITD puts forward five pleas in law, which relate to:the incorrect classification of the EUR 30 million tax guarantee.60Those pleas concern, in essence, the main stages of the reasoning followed in the contested decision in order for the Commission to be able to find that aid existed, that it was incompatible with the internal market and that it was necessary to order its recovery.61In the present case, the Court considers that it is appropriate first to examine the parties’ arguments concerning the criterion of aid ‘granted by a Member State or through State resources’ within the meaning of Article 107(1) TFEU. For that purpose, it is appropriate to group and examine together the second plea in law raised by the Italian Republic in Case T‑98/16, the third plea raised by BPB in Case T‑196/16 and the second plea raised by the FITD in Case T‑198/16, in so far as they concern the concept of the imputability of aid to the State. Likewise, the first plea raised by the Italian Republic in Case T‑98/16, the second plea raised by BPB in Case T‑196/16 and the first plea raised by the FITD in Case T‑198/16, in so far as they concern the concept of State resources, should be grouped and examined together. Preliminary observations on the concept of ‘aid granted by a Member State’ 62According to settled case-law, categorisation as ‘State aid’ within the meaning of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or through State resources, that the intervention be liable to affect trade between Member States, that it confer a selective advantage on the beneficiary and that it distorts or threaten to distort competition (see judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 17 and the case-law cited).63As regards the first condition relating to the existence of an intervention by the State or through State resources, it should be noted that, for it to be possible to classify advantages as ‘State aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be attributable to the State (see judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 20 and the case-law cited).64In that regard, in general, it is not appropriate to distinguish a priori cases in which aid is granted directly by the State from those in which it is granted through a public or private body designated or established by that State (see, to that effect, judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 23 and the case-law cited, and Opinion of Advocate General Saugmandsgaard Øe in ENEA, C‑329/15, EU:C:2017:233, point 67).65The inclusion within the scope of Article 107(1) TFEU of advantages granted by bodies distinct from the State seeks to preserve the effectiveness of the rules on ‘aid granted by a Member State’ set out in Articles 107 to 109 TFEU. The Court has thus held that EU law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid (judgment of 16 May 2002, France v Commission, C‑482/99, ‘the judgment in Stardust, EU:C:2002:294, paragraph 23). In other words, that case-law is intended to counteract a risk of under-inclusion. However, the decision to include the advantages granted by bodies distinct from the State also gives rise to a specific risk of over-inclusion as regards advantages that are not attributable to the State or do not involve the use of State resources (see, to that effect, Opinion of Advocate General Saugmandsgaard Øe in ENEA, C‑329/15, EU:C:2017:233, points 68 and 69 and the case-law cited).66It is in the light of the need to avoid both the risk of under-inclusion and that of over-inclusion of advantages granted by bodies distinct from the State that the evidence on which the Commission relies to establish that the measures at issue originate from the State should be examined.67In that regard, the fact remains that the concept of State aid is a legal concept which must be interpreted on the basis of objective factors (see, to that effect, judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 111, and of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 87) including whether the entity which granted the aid is public or private. Where that entity is governed by private law or is autonomous, including, as regards the management of its funds, by comparison with intervention by public authorities and with public funds, in the strict sense, the Commission is, subject to full review by the EU Courts, under an even more important obligation to specify and substantiate the reasons which justify its conclusion that the resources used are under public control and the measures are imputable to the State and, consequently, that there is aid within the meaning of Article 107(1) TFEU.68Therefore, in a situation where the Commission inferred that financial assistance granted by the subsidiaries of a public undertaking was attributable to the States simply from the fact that those companies were indirectly controlled by the State, it has been held that, even if the State was in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed (judgment of 16 May 2002, Stardust, C‑482/99, EU:C:2002:294, paragraphs 50 to 52). In such a case, the Commission must have a set of indicators arising from the circumstances of the case and the context in which that financial assistance was given in order to establish the degree of involvement by the public authorities in granting that assistance through the intermediary of a public undertaking (see, to that effect, judgment of 16 May 2002, Stardust, C‑482/99, EU:C:2002:294, paragraphs 52 and 55).69That obligation on the Commission is all the more necessary in a situation where, as in the present case, the measure at issue is provided by a private entity. In such a situation, it cannot be assumed that the State is in a position to control that undertaking and to exercise a dominant influence over its operations on account of the link of a capital nature and the rights attached to it. The Commission must therefore prove, to the requisite legal standard, a sufficient degree of State involvement in granting the measure at issue by demonstrating not only that the State is able to exercise a dominant influence over the entity granting the aid, but also that it was in a position to exercise that control in the circumstances of the particular case.70Moreover, notwithstanding the requirement to distinguish the imputability of aid to a State from the question whether aid was granted through State resources, which are separate and cumulative conditions (see judgment of 5 April 2006, Deutsche Bahn v Commission, T‑351/02, EU:T:2006:104, paragraph 103 and the case-law cited), in the present case, the Commission did not seek to make a clear distinction between those conditions (see recital 144 of the contested decision). The Court therefore considers it appropriate, in the first place, to examine the various items of the evidence on which the Commission relies to establish that the measures adopted are imputable to the State and, in the second place, to assess the evidence regarding the control exercised by the public authorities over the resources used for the measures adopted by the FITD for the benefit of Tercas. Evidence relied on in the contested decision to establish that the measures originate from the State 71After noting in recital 112 of the contested decision that the decisive factor in order to determine the existence of ‘aid granted by a Member State or through State resources’, within the meaning of Article 107(1) TFEU, was not the immediate origin of those resources but the degree of intervention of the public authority in defining those measures and their methods of financing, the Commission set out, in recitals 117 to 145, the various factors, which it regards as ‘sufficient evidence’, that it took into account.72In the first place, the Commission considered that the Italian State had entrusted the FITD with a ‘public mandate’ of protecting depositors which it exercises in various forms. In this respect, in recital 120 of the contested decision, the Commission noted that the protection of savings and depositors had a specific position in Italian national law, which protects savings and confers on the Bank of Italy the task of safeguarding the stability of the Italian banking system in order to protect depositors.73In that context, in recital 121 of the contested decision, the Commission stated that Article 96a of the Italian Banking Act had to be read as a ‘specific definition of the public mandate of protecting depositors that applies to deposit guarantee schemes recognised in Italy’. The Commission specified that, ‘by including the last sentence in Article 96[a](1) [of the Italian Banking Act, according to which deposit guarantee schemes “may engage in other types and forms of intervention” in addition to repayment of depositors, the Italian authorities [had] chosen to allow their recognised deposit guarantee schemes to use the resources collected from member banks for different types of action’. The Commission also stated that Article 96a of the Italian Banking Act was therefore the basis for recognition of the FITD as a mandatory deposit guarantee scheme in Italy and, at the same time, the provision granting the FITD the power to take ‘support measures’, including, therefore, a support measure adopted by the FITD in accordance with Article 29 of its statutes.74Therefore, in recital 122 of the contested decision, the Commission stated that ‘the fact that the FITD is organised as a consortium under private law [was] irrelevant, as the mere fact that a body is constituted under ordinary law cannot be regarded as sufficient to exclude the possibility of an aid measure taken by such a body being imputable to the State’. It also noted that ‘the FITD’s objectives — pursuit of the common interests of its members by strengthening the safety of deposits and the protection of the reputation of the banking system — clearly coincide[d] with the public interest’. However, the Commission pointed out, first, that ‘that d[id] not necessarily mean that the undertaking [namely, the FITD,] could have taken its decision without taking into account the requirements of the public authorities’ and, secondly, that ‘moreover, it [was] not necessary that the State’s influence should result from a legally binding act of a public authority[, since the] autonomy that the undertaking in principle enjoys does not prevent the practical involvement of the State’.75In any event, the Commission stated, in recital 123 of the contested decision, that ‘Union and Italian legislation [gave] the [Bank of Italy] the authority and the means to ensure that all actions taken by the FITD as a deposit guarantee scheme recognised under the [Italian] Banking Act comply with [the] public policy mandate and contribute to the protection of depositors’.76In the second place, the Commission considered that the Italian public authorities had the opportunity to influence all of the steps in the implementation of a support measure such as that at issue in the present case.77First, the Commission noted that the Italian Banking Act conferred on the Bank of Italy the power to authorise the adoption of measures by deposit guarantee schemes, including support measures, and to monitor their compliance with the objectives of ensuring the stability of the banking system and protecting deposits (recitals 127, 141 and 142 of the contested decision). In that regard, in recital 129 of the contested decision, the Commission took the view that authorisation by the Bank of Italy had to occur at a stage where the FITD could still reconsider and amend the proposed measure if the Bank of Italy objected to it. It therefore concluded that the Italian authorities exercised influence over the support measures before it had actually been decided to adopt them (recital 130 of the contested decision).78Secondly, the Commission considered that the Italian public authorities had the power to initiate the procedure leading to a support measure. In that regard, in recital 128 of the contested decision, the Commission noted that only banks under special administration qualified for support measures. First, banks are placed under special administration by the Ministry of the Economy on a proposal by the Bank of Italy. Second, the request for intervention is sent to the FITD by the special administrator, who is appointed and supervised by the Bank of Italy.79Thirdly, the Commission considered that the influence of the Italian public authorities was further accentuated by the presence of representatives at all decision-making meetings, where those authorities were able to voice their concerns at an early stage (recitals 129 and 130 of the contested decision).80Accordingly, in recital 138 of the contested decision, the Commission concluded that, ‘in the case at issue, both in principle and in practice, the Italian authorities exercise[d] constant control of compliance in the use of the FITD’s resources with public objectives, and influence[d] the use of those resources’.81In the third place, in recitals 133 to 136 of the contested decision, the Commission stated that membership of the FITD was obligatory for Italian banks as were contributions to the intervention measures that were decided on by its governing bodies. Regardless of their individual interests, members of the consortium were thus unable to exercise a right of veto over such a decision, or to disassociate themselves from the intervention. Therefore, according to the Commission, the measures adopted are imputable to the FITD and not the consortium’s member banks. Consequently, since membership of the FITD and the contributions to the measures which it decides to adopt are obligatory, the Commission stated that the members of the FITD ‘[were obliged] under Italian law to contribute to the costs of FITD’s support measures’ and that ‘the resources used to finance such support measures [were] clearly required, managed and apportioned according to the law and other public rules, and consequently [had] a public character’ (see recital 137 of the contested decision).82In the light of the foregoing, in recital 144 of the contested decision, the Commission took the view that, in the present case, there was sufficient evidence to demonstrate that the individual measures at issue were imputable to the State and were financed through public resources. In particular, with regard to the imputability of the measures at issue to the State, in recital 145 of the contested decision, the Commission stated that, even if some of the factors to which it had given weight, taken individually, were not in themselves sufficient for it to be concluded that the measures at issue were imputable to the State, the series of factors it had assessed demonstrated, as a whole, that the measures adopted by the FITD were imputable to the State. Whether the measures at issue are imputable to the Italian State 83First, in order to assess whether a measure may be imputed to the State, it is necessary to examine whether the public authorities were involved in the adoption of that measure (see judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 21 and the case-law cited).84In that respect, in a situation concerning the imputability to the State of an aid measure taken by a public undertaking, it has been held that this may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken, including the fact that the body in question could not have taken the contested decision without taking account of the requirements of the public authorities or the fact that, apart from factors of an institutional nature linking the public undertakings to the State, those undertakings, through which aid had been granted, had to take account of directives issued by an inter-ministerial committee for economic planning (see, to that effect, judgment of 16 May 2002, Stardust, C‑482/99, EU:C:2002:294, paragraph 55 and the case-law cited).85According to the same line of case-law, other indicators may, in certain circumstances, be relevant in concluding that an aid measure taken by a public undertaking is imputable to the State, such as the fact that it is an integral part of the structures of the public administration, the nature of its activities and the fact that it exercises them on the market in normal conditions of competition with private operators, the legal status of the undertaking (subject to public law or ordinary company law), the degree of supervision exercised by the public authorities over the management of the undertaking, or any other indicator showing, in the particular case, involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it entails (see, to that effect, judgments of 16 May 2002, Stardust, C‑482/99, EU:C:2002:294, paragraph 56, and of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 36).86Furthermore, in view of the risk of under-inclusion (see paragraphs 64 and 65 above), it has been held that the mere fact that a public undertaking had been constituted in the form of a capital company governed by ordinary law cannot, having regard to the autonomy which that legal form is likely to confer upon it, be regarded as sufficient to exclude the possibility of an aid measure taken by such a company being imputable to the State. The existence of a situation entailing control and the real possibilities of exercising a dominant influence which that situation involves in practice means that it is not possible to exclude automatically any imputability to the State of a measure taken by such a company, and hence the risk of an infringement of the rules on State aid, notwithstanding the relevance, as such, of the legal form of the public undertaking as one indicator, amongst others, enabling it to be determined in a given case whether or not the State is involved (see, to that effect, judgment of 16 May 2002, Stardust, C‑482/99, EU:C:2002:294, paragraph 57).87However, as regards the imputability of an aid measure taken by a private entity, while the legal form of an entity of that kind does not in itself preclude that measure from being imputable to the State, the fact nonetheless remains that it is for the Commission to prove to the requisite legal standard that the State is involved in granting that measure by taking into account the particular features of that private entity’s situation (see paragraphs 67 to 69 above).88Unlike a public undertaking within the meaning of Article 2(b) of Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17), which states that public undertaking means ‘any undertaking over which the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it’, a private entity has a fundamental decision-making autonomy. Moreover, that autonomy is necessarily more significant with regard to the State than if it was its principal or only shareholder, and therefore the evidence adduced by the Commission, which may be in the form of indicators, regarding the existence of control or a dominant influence over the operations of a private entity of that kind is even less capable of forming the basis of presumptions and there is an even more stringent requirement for it to be sufficiently probative (see, to that effect, judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraphs 40 and 41; see, also, paragraphs 68 and 69 above).89Thus, unlike a situation in which a measure taken by a public undertaking is imputed to the State, in respect of a measure taken by a private undertaking, the Commission cannot merely establish, in the light of the circumstances of the case, that the absence of actual influence and control by the public authorities over that private entity is unlikely (see, to that effect, judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 48).90In the present case, since the measure at issue was provided by a private entity, there was an even more stringent requirement for the Commission to set out and substantiate the factors which enabled it to conclude that there was sufficient evidence to demonstrate that that measure had been adopted under the actual influence or control of the public authorities (see paragraph 69 above) and that, accordingly, that measure was in fact imputable to the State (see, to that effect, judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 48).91In general, as with the criterion regarding the existence of public resources, the decisive factor in assessing whether the measure in question is imputable to the State is that of the degree of intervention by the public authority in the definition of the measures in question and the methods of financing the measures (see, to that effect, judgment of 27 September 2012, France v Commission, T‑139/09, EU:T:2012:496, paragraph 63). Only a sufficiently high degree of intervention enables the conclusion to be drawn that the measures at issue are imputable to the Italian State. Therefore, in recital 112 of the contested decision, the Commission rightly relied on that factor in defining the scope of its analysis for the purposes of demonstrating that those measures originated from the State.92In that regard, with regard to the imputability of those measures to the State, the applicants, supported by the Bank of Italy, submit, first of all, that the measures adopted for the benefit of Tercas were decided on by the FITD’s governing bodies with the unanimous agreement of all of its members’ representatives, following a simple request by the special administrator. No public authority would have been able to oblige the FITD to adopt the intervention measures if it had not been deemed to be in the interests of members of the consortium. Moreover, the special administrator acted as the manager and legal representative of BPB and merely sent the FITD a simple request for intervention which was not binding on the consortium. Representatives from the Bank of Italy participated in the FITD’s meetings as observers, with no voting rights, and did not even act in an advisory capacity. Furthermore, the previous contact with the Bank of Italy and its non-binding invitation to the FITD to find a balanced agreement with BPB are characteristic of normal dialogue between the interested parties. Finally, the Bank of Italy authorised the intervention measures adopted by the FITD as part of its monitoring and supervision tasks in order to ensure the sound and prudent management of banks which is entrusted to it by law. That authorisation was given 38 days after the FITD’s decision to intervene and the FITD remained free not to proceed with the intervention measures.93The Commission submits that it has identified a body of evidence which, taken together, allow the imputability of the measures at issue to the State to be established. In the first place, it contends that although the FITD is a private consortium, in essence it pursues a public objective, namely protecting savers, an objective which is monitored by the Bank of Italy. In the second place, the special administrator is a public official, appointed by the Bank of Italy and subject to its supervision. In the third place, the participation of a Bank of Italy official at meetings of the Board and the Executive Committee, as an observer, enables the Bank of Italy to make known, at an early stage, all of its concerns regarding the planned intervention. The presence, even as an observer, of a Bank of Italy representative enables the bank to exercise control over the FITD’s actions. In the fourth place, the Commission states that all of the intervention measures that the FITD intended to implement, from reimbursing savers to other measures, require the prior authorisation of the Bank of Italy.– The scope of the public mandate given to the FITD 94The applicants submit, in essence, that the FITD has no public mandate to adopt measures for the benefit of banks in difficulty, because, as Article 96a of the Italian Banking Act provides only for the possibility of other measures, without further clarification, the FITD has autonomy with respect to measures other than the repayment of deposits. Thus, with respect to the latter, the Italian legislature has left it to deposit guarantee schemes, such as the FITD, to define completely autonomously the aim, the scope and the specific arrangements for such measures. Therefore, the measures referred to in Article 29 of the statutes of the FITD primarily serve the private interests of the consortium’s member banks. Moreover, the decision for the statutes of the FITD to provide for the possibility of implementing measures other than the repayment of deposits was taken by the consortium’s member banks and no rule or administrative act forced them to do so. The fact that the Bank of Italy approves the statutes of the FITD does not influence its decision-making mechanisms since the Bank of Italy must continue itself to establishing that the provisions in the statutes regarding the public tasks assigned to the FITD comply with the statutory objective of protecting depositors.95The Commission contends that, although it is a consortium governed by private law, with its own bodies which are officially independent, the FITD is entrusted by law with a public interest task, namely protecting savers, which is reflected in various forms of intervention. That claim is also confirmed by the fact that, on its website, the FITD states that its institutional purpose is to guarantee the deposits of the consortium’s member banks and that that task may take various forms. Moreover, according to the Commission, the protection of savings in Italy is a public objective with constitutional status. The fact that, in authorising all of the measures decided on by the FITD, the Bank of Italy is acting, in accordance with Article 96b of the Italian Banking Act, by ‘having regard to the protection of depositors and the stability of the banking system’, confirms that all of the FITD’s intervention measures are directed towards protecting savers, that the FITD is acting under a public mandate and that it is subject to the public intervention of the Bank of Italy.96In the first place, it should be noted, as observed by the applicants, that the FITD’s support measures are principally aimed at furthering the private interests of the FITD’s member banks.97Thus, for the FITD’s members, the overarching aim of support measures is to avoid the more onerous economic repercussions of repaying deposits in the event of compulsory liquidation. It is clear from the wording of Article 29(1) of the statutes of the FITD that support measures are subject to two cumulative conditions. First, there must be the prospect of the bank in difficulty which is benefiting from the intervention recovering, in order to prevent the FITD from being called on again to intervene in the future, whether by means of a new support measure or under the statutory obligation to repay deposits. Secondly, the support measures must constitute a less onerous financial burden on the FITD’s member banks than implementing the statutory obligation to repay deposits. By imposing the latter condition, it should be noted that the statutes of the FITD give precedence to the private interests of the FITD’s member banks over any other consideration relating to the protection of savings. The statutes of the FITD preclude any support measure which may lead to an excessive financial burden on the FITD’s members, even if that support measure would afford better protection of savings by also protecting deposits above the statutory threshold of EUR 100000 in the event of compulsory liquidation.98For the FITD’s members, the aim of support measures is also to avoid the negative consequences for themselves and for the whole of the banking sector, in particular in terms of reputation and the risk of panic amongst depositors, which would result from the compulsory liquidation of a bank in difficulty. The fact that a sector establishes a private mutual assistance scheme does not constitute in itself an indicator that the State is involved. Indeed, in the present case, as the Commission acknowledges in recital 122 of the contested decision, the FITD’s member banks have a common interest in strengthening the safety of deposits and protecting the banking system’s reputation. It is also clear in the present case that the creation of a deposit guarantee fund and the possibility of providing support measures originally stemmed from a purely private initiative by the FITD’s member banks at a time when the law did not require banks to be members of any form of deposit guarantee scheme (see paragraph 5 above).99It is true that the private interests of the consortium’s member banks may coincide with the public interest. However, it is clear from case-law that the fact that, in some cases, general interest objectives are consistent with the interest of private entities — such as a consortium governed by private law as in the present case — does not, in itself, offer any indication as to the possible involvement or lack of involvement of the public authorities in some way or other in the adoption of the measure in question (see, to that effect, judgment of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 26).100In the second place, contrary to the Commission’s submissions, it must be noted that the support measures do not give effect to any form of public mandate conferred by Italian law.101First, it follows from Article 96a(1) of the Italian Banking Act, which provides that ‘guarantee schemes shall make repayments in the event of the compulsory liquidation of licensed banks in Italy’, that the public mandate conferred on the FITD by Italian law consists solely in reimbursing depositors, as a deposit guarantee scheme, where a member bank of that consortium is the subject of compulsory liquidation. Moreover, the public mandate conferred by Italian law on deposit guarantee schemes is not only limited to the repayment of deposits in the event of compulsory liquidation, but is also capped, since Article 96a(5) of the Italian Banking Act provides that ‘the repayment limit for each depositor shall be EUR 100000’. Outside that framework, the FITD is therefore not acting in accordance with a public objective imposed by Italian legislation (see paragraph 97 above).102Secondly, it should be noted that Italian legislation in no way requires the FITD, or any other deposit guarantee scheme, to provide for the possibility of providing support measures. Likewise, it does not regulate the arrangements for such interventions. The statutory provision invoked by the Commission does not require the FITD, in the absence of the compulsory liquidation of one of its members, to intervene under a public mandate to protect depositors. Apart from the repayment of deposits, that provision does not require any form of mandatory intervention.103Admittedly, although Article 96a(1) of the Italian Banking Act provides that ‘guarantee schemes may provide for other types and forms of intervention’, that provision expressly states that this is a mere possibility which is left to the discretion of the deposit guarantee schemes. Italian legislation does not require those schemes to provide for types and forms of intervention other than the statutory obligation to repay deposits in the event of compulsory liquidation. Moreover, while an Italian deposit guarantee scheme provides for the possibility of such interventions, the Italian legislature gives it free rein to define its purpose and the rules.104In the present case, the possibility for the FITD to provide support measures therefore does not result from any statutory obligation, but solely from an autonomous decision by the consortium’s member banks to provide for such an option into the statutes of the FITD. The consortium’s member banks also defined autonomously the conditions in which such support measures may be implemented. Thus, Article 29 of the statutes of the FITD provides that the FITD ‘may intervene for the benefit of a consortium member placed under special administration if there is a prospect of recovery and if it is foreseeable that the cost will be lower than that of intervening in the event of liquidation’.105In the absence of any statutory obligation to provide for such intervention measures, the fact that, in accordance with Article 96b(1)(a) of the Italian Banking Act, the statutes of the FITD are approved by the Bank of Italy is not a factor that is capable of calling into question the FITD’s decision-making autonomy in respect of support measures. This is a fortiori the case since, in accordance with the provisions of the Italian Banking Act, the Bank of Italy approves the statutes of all Italian banking institutions as part of its tasks relating to prudential supervision.106It follows from the foregoing that, contrary to what the Commission claims in recital 121 of the contested decision, support measures, such as those at issue in the present case, have a different purpose from that of the repayment of deposits in the event of compulsory liquidation and do not constitute the fulfilment of a public mandate.– The FITD’s autonomy when adopting the intervention measures 107First, the applicants submit that the decision by the FITD to intervene for the benefit of Tercas was taken autonomously. That decision was adopted voluntarily by the FITD’s governing bodies and received the unanimous agreement of all of the representatives of the consortium’s member banks. No public authority issued instructions or binding guidelines and no public authority could have required the FITD to proceed with the intervention if its bodies had not deemed it to be in the interest of its members.108Secondly, in accordance with Article 72(1) of the Italian Banking Act, the special administrator exercises ‘the bank’s administrative duties and powers’ and therefore assumes the private powers of the dissolved administrative bodies. In the present case, as the manager and legal representative of Tercas, a bank placed under special administration, the special administrator merely sent the FITD a simple request for intervention, which was in no way binding on it. Moreover, the applicants submit that the special administrator does not need to obtain the Bank of Italy’s consent or advice in order to submit a request to the FITD for a support measure.109Thirdly, the Bank of Italy’s representative participated in meetings of the FITD’s Board and the Executive Committee merely as an observer, thus passively with no voting rights, and did not even act in an advisory capacity.110Fourthly, the ‘contact’ with the Bank of Italy and its ‘invitation’ to find a ‘balanced agreement with the purchaser BPB to cover the negative equity’ are characteristic of normal healthy dialogue with the competent supervisory authorities in a complex context such as crisis management in respect of a credit institution. Moreover, the Bank of Italy’s ‘invitation’ expressed a mere general desire (‘to look for a balanced agreement’) and, as such, is fully acceptable as it left it to the parties’ discretion as to any possible agreement. In any event, an ‘invitation’ could not have been in any way binding on the FITD.111Fifthly, like all authorisations given by the Bank of Italy, the authorisation relating to support measures provided for by Article 96b(1)(d) of the Italian Banking Act is given as part of the task of surveillance and supervision entrusted to the Bank of Italy in order to ensure the sound and prudent management of banks, without affecting the autonomous choices made by the bodies which are under the supervision of the Bank of Italy. Such authorisation is also given after the bodies of the FITD have taken their own independent decision, namely, in the present case, 38 days after the decision to intervene. In any event, even after it was granted, the authorisation by the Bank of Italy could not have been in any way binding on the FITD, which remained free not to proceed with the intervention measures.112The Commission contends that the Bank of Italy exercises effective, constant and ex ante control over the FITD’s activities by the approval of its statutes, the participation of one of its representatives in meetings of the FITD’s Board and the Executive Committee and the prior authorisation of each intervention measure that the FITD intends to implement. The Bank of Italy also appointed the special administrator, a public official who is subject to its supervision, who managed Tercas and has wider ranging powers.113In that regard, it should first be noted that the FITD is a consortium governed by private law which, pursuant to Article 4(2) of its statutes, acts ‘on behalf of and in the interests of the members of the consortium’. Moreover, its management bodies, namely the Executive Committee and the Board, are appointed by general meetings of the FITD and are, like the general meeting, made up solely of representatives of the consortium’s member banks. It must therefore be concluded that no factors relating to how it is organised link the FITD to the Italian public authorities.114This is the context in which the evidence on which the Commission relied in the contested decision in concluding that the Italian public authorities nevertheless had the authority and the means to influence all of the steps in the implementation of a support measure and that they exercised those powers in respect of the adoption of the measures at issue must be examined. In particular, it must be determined whether the evidence on which the Commission relies proves, to the requisite legal standard, that the measures adopted by the FITD for the benefit of Tercas may be imputed to the Italian State in the light of the case-law and the principles recalled in paragraphs 63 to 69 and 83 to 91 above.115In the first place, with regard to the authorisation by the Bank of Italy of the intervention by the FITD for the benefit of Tercas, it should be noted that this is not an indicator which enables the measure at issue to be imputed to the State.116First, it is clear from relevant Italian legislation that the Bank of Italy’s authorisation of support measures is given only following a check that the measure complies with the regulatory framework, which is carried out as part of the latter’s prudential supervision duties. In that regard, Article 96b(1)(d) of the Italian Banking Act provides that the Bank of Italy ‘shall authorise intervention measures by guarantee schemes … having regard to the protection of depositors and the stability of the banking system’. That provision must be interpreted in the light of the prudential supervisory duties conferred on the Bank of Italy by Italian law, which it performs ‘having regard to the sound and prudent management of the institutions subject to its supervision, overall stability, the effectiveness and competitiveness of the financial system and compliance with the applicable provisions’ (Article 5(1) of the Italian Banking Act). In addition to intervention measures by guarantee schemes, Italian legislation makes a number of major decisions by banks, such as those involving acquisitions and other participants in the financial sector, subject to authorisation by the Bank of Italy (see, inter alia, Article 19 of the Italian Banking Act). By making intervention measures by guarantee schemes and other decisions taken by private participants in the financial sector subject to authorisation by the Bank of Italy, the Italian legislation concerned is in no way intended to substitute the assessment of the Bank of Italy for that of the operators concerned on whether it is appropriate to take the decisions in question or as to the detailed rules governing their implementation. On the contrary, it must be concluded that the Bank of Italy checks only whether the measure complies with the regulatory framework, for the purposes of prudential supervision.117Secondly, it must be noted that the Bank of Italy has no means of requiring the FITD to intervene in support of a bank in difficulty.118The Bank of Italy’s powers are limited to checking whether support measures, as decided on by the FITD’s governing bodies, comply with the regulatory framework, in order to authorise them. Contrary to what the Commission appears to indicate in recital 129 of the contested decision, the fact that the FITD remains free, if it so wishes, to submit to the Bank of Italy a new authorisation request for a support measure on different terms in the event of the authorisation being refused does not give the Bank of Italy the power to intervene when the FITD adopts support measures. As is clear from recitals 18 and 19 of the contested decision, the Bank of Italy merely has the power to authorise the implementation of support measures which have been adopted autonomously by the FITD’s governing bodies. Those bodies alone have the power to decide whether to intervene in support of a bank in difficulty and to determine the practical details of that intervention.119Moreover, as the Commission acknowledges in recital 132 of the contested decision, the FITD is not required to adopt a support measure which has been authorised by the Bank of Italy. In that regard, it is sufficient to note that, on 4 November 2013, the Bank of Italy authorised an initial support measure for the benefit of Tercas, which had been decided on by the FITD’s governing bodies on 28 and 29 October 2013 and which the FITD never implemented.120In any event, in the present case, it should be noted, first, that the measures adopted by the FITD for the benefit of Tercas were adopted unanimously by the Executive Committee and the Board of the FITD on 30 May 2014 and, secondly, that those measures were authorised as they stood by the Bank of Italy on 7 July 2014. In those circumstances, the authorisation of the measure at issue by the Bank of Italy cannot constitute evidence providing that the Italian public authorities were involved in the adoption of those measures in such a way that the measures adopted by the FITD for the benefit of Tercas may be imputed to them.121In the second place, with regard to the presence of Bank of Italy representatives at the meetings of the FITD’s governing bodies, this is not an indicator which allows the measure at issue to be imputed to the State either.122First, Articles 13(6) and 16(3) of the statutes of the FITD expressly state that Bank of Italy representatives attending meetings of the Board and the Executive Committee of the FITD are merely observers, have no voting rights and may not offer advice.123Second, it is apparent from the documents before the Court that the Commission has not adduced any evidence to substantiate its assertions, in recitals 129 and 130 of the contested decision, that ‘it [could] be supposed’ that the presence of representatives, as observers, at the meetings of the FITD’s governing bodies ‘enable[d] the [Bank of Italy] to voice any concerns about planned intervention at an early stage’ and to ‘embed …’ its influence over them. In that regard, it should be noted that it is clear from the contested decision that those assertions are mere assumptions and are in no way substantiated by the documents in the file. On the contrary, the minutes of meetings of the FITD’s governing bodies attest to the purely passive role played by the Bank of Italy’s representatives. At the Executive Committee’s meeting on 30 May 2014, a Bank of Italy’s representative merely expressed at the end of the meeting his satisfaction with the way in which the Tercas crisis had been handled whereas, at the meeting of the Board on 30 May 2014, the Bank of Italy’s representatives did not even speak.124In the light of those findings of fact, the Commission has not proved that the presence, even only as an observer, of Bank of Italy’s representatives at meetings of the FITD’s governing bodies enabled the Bank of Italy to influence the FITD’s decisions.125In the third place, with regard to the context in which the measures taken by the FITD for the benefit of Tercas were adopted, it should be noted that the Commission has not adduced any evidence proving that the Bank of Italy had a decisive influence in the negotiations between the FITD on the one side and BPB and the special administrator on the other.126Therefore, as regards the fact that the negotiations between the interested private parties were said to have been conducted ‘in coordination with the Bank of Italy’ (recital 131 of the contested decision), it should be pointed out, as noted by the applicants, that, in an operation as complex as crisis management in respect of a credit institution, it is hardly surprising that the Bank of Italy is informed of the progress of the negotiations between the interested parties. Consequently, the fact that informal meetings may have taken place between, on the one hand, the interested parties (namely, the FITD, BPB and, on behalf of Tercas, the special administrator) and, on the other, the Bank of Italy, for the purposes of informing the Bank of Italy of progress that was being made in the negotiations, is simply characteristic of legitimate and ordinary dialogue with the competent supervisory authorities. It is clear that the Commission has not adduced any evidence demonstrating that the Bank of Italy used those contacts in order decisively to influence the content of the disputed measures at issue. On the contrary, there is nothing in the file which is capable of calling into question the applicants’ argument that such contacts simply allowed the Bank of Italy to be informed of developments in order to be able more rapidly to take its decision as to whether to authorise the measure at issue once it had been adopted by the FITD’s governing bodies and the Bank of Italy had received notification of it.127The same applies with regard to the fact that the Bank of Italy ‘invited’ the FITD to reach a ‘balanced agreement’ with BPB with regard to covering Tercas’ negative equity, taking account of the possible negative impact of the liquidation of Tercas and its subsidiary Banca Caripe. It should be pointed out, as observed by the applicants, that this is the expression of a mere general desire, which is in no way binding on the FITD. Such a desire on the part of the public authorities is not surprising in circumstances such as those in the present case. However, such a desire was never intended to give orders to the parties concerned and nor was is interpreted in that way by those parties. In any event, the documents in the case file do not show that that invitation had the slightest impact on the FITD’s decision to adopt measures for the benefit of Tercas, that decision being primarily due to economic considerations specific to the FITD and to its members, as attested by the report by the auditing and advisory company appointed for that purpose (see paragraph 19 above).128Finally, in the fourth place, with regard to the role played by the special administrator, the fact that he had the power to initiate the procedure which could lead to a support measure by the FITD by sending it a non-binding request in that regard is also incapable of calling into question the FITD’s autonomy in deciding whether to intervene in that way.129Under Article 29(1) of its statutes, the FITD may provide support measures only for the benefit of the consortium’s member banks which are placed under special administration. In that regard, it follows from Articles 70 to 72 of the Italian Banking Act that the decision to place a bank under special administration is taken by the Minister for the Economy on a proposal by the Bank of Italy and the special administrator is appointed by the Bank of Italy, which also has the power to remove him. Once appointed, the special administrator acts in accordance with Article 72(1) of the Italian Banking Act as the bank’s administrator and takes over the private law powers of the administrative bodies of the bank placed under special administration in the interests of depositors.130However, it should be noted that the submission, by the special administrator, of a request for the FITD to intervene imposes no obligation on the FITD to grant that request and nor does it influence the FITD’s autonomy with regard to the content of the support measure if it decides to act. Moreover, contrary to what the Commission states in recital 128 of the contested decision, there is nothing in the statutes of the FITD or in Italian legislation which states that the special administrator alone can make such a request or which contradicts the FITD’s assertion that it can take the initiative to start the procedure to implement a support measure even where no request has been made in that regard by the special administrator.131Furthermore, in the present case, the Commission has not adduced any evidence to show that the request submitted by the special administrator was the result of instructions being given by the Bank of Italy. On the contrary, it is clear from the facts set out in paragraph 16 above that the initiative to call upon the FITD stems from the requirements imposed by BPB, which had made its subscription to a capital increase in Tercas conditional upon that bank’s negative equity being covered by the FITD.132In conclusion, it is clear from all the foregoing that the Commission made an error in taking the view, in recital 133 of the contested decision, that it had demonstrated that the Italian authorities had exercised substantial public control in establishing the measures adopted by the FITD for the benefit of Tercas. On the contrary, it is clear that the Commission has not proved to the requisite legal standard that the Italian public authorities were involved in the adoption of the measure at issue or, consequently, that that measure is imputable to the State within the meaning of Article 107(1) TFEU. The financing of the intervention measures through State resources 133The concept of intervention ‘through State resources’, within the meaning of Article 107(1) TFEU, is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid. EU law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid (see judgment of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraphs 44 and 45 and the case-law cited).134Furthermore, in accordance with settled case-law, Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the State. Therefore, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as ‘State resources’ (see judgment of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraph 46 and the case-law cited).135In that regard, in a situation concerning public undertakings, it has been held that, since their resources were subject to the control of the State and were therefore at its disposal, those resources were covered by the concept of ‘State resources’, within the meaning of Article 107(1) TFEU. The State is perfectly capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order, as occasion arises, to finance specific advantages in favour of other undertakings. The fact that the resources concerned may be administered by entities that are distinct from the public authorities or that the source of those resources may be private is of no significance in that regard (see judgment of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraphs 47 and 48 and the case-law cited).136Thus, in the case giving rise to the judgment of 9 November 2017, Commission v TV2/Danmark, C‑656/15 P, EU:C:2017:836, paragraphs 49 to 53), the Court noted that the three undertakings concerned were public undertakings owned by the State and they had been delegated the task of administering the transfer, to one of those undertakings, of the revenue deriving from the sale of the advertising space of that undertaking. The Court also observed that the entire distribution channel of that revenue was governed by legislation under which public undertakings specially appointed by the State had the task of administering that revenue. The revenue in question was, accordingly, under public control and at the disposal of the State, which could decide how it was to be used. Consequently, the Court concluded that that revenue did constitute ‘State resources’ within the meaning of Article 107(1) TFEU.137In the present cases, the applicants, supported by the Bank of Italy, submit that the Commission wrongly considered, in the contested decision, that the resources used by the FITD were ‘State resources’. Thus, the Commission cannot claim that the FITD is acting under a public mandate when it adopts measures for the benefit of one of its members in difficulty and not under the statutory deposit guarantee for depositors. Moreover, account should be taken of the fact that the FITD is a consortium governed by private law and its bodies represent its members and not the public authorities. Although a Bank of Italy representative attends some meetings of the FITD’s bodies, this is solely as an observer with no voting rights or advisory role. No public authority could have imposed an obligation on the FITD to decide to intervene or have dictated the rules governing such intervention. Furthermore, although the special administrator, who took over from Tercas’ management, requested that the FITD intervene, this was in the interests of that undertaking and its creditors and he could not have compelled the FITD. In addition, the Bank of Italy’s authorisation of the intervention measures was given in the context of its ordinary tasks of protecting stability and savings. This was a ratification measure confined to a formal a posteriori scrutiny of a private law measure. Furthermore, the contributions made by the members to the intervention measures are not imposed, controlled or at the disposal of the State. Although the members of the consortium are obliged to contribute to the repayment of deposits, no rule or administrative act compels them to contribute to the intervention measures. The mandatory nature of those contributions follows only from the statutes of the FITD and its decisions.138The Commission submits, in essence, that, although it is a consortium governed by private law, with its own bodies which are officially independent, the FITD is entrusted by law with a public interest task, the protection of savers, which can take various forms. Similarly, the Bank of Italy exercises effective, constant and ex ante control over the FITD’s activities because it approves its statutes, one of its representatives participates in meetings of the FITD’s Board and Executive Committee and gives prior authorisation for each intervention measure. In addition, the Bank of Italy appointed the special administrator, a public official subject to its supervision, who managed Tercas during the period of special administration. Furthermore, since the FITD is the only deposit guarantee scheme recognised by the Bank of Italy, banks which are not cooperative credit associations are therefore obliged to become members and to pay the required contributions to it in order to comply with the public objective of protecting savings.139In the present case, in order to conclude in recital 144 of the contested decision that the measures adopted by the FITD for the benefit of Tercas was financed through public resources, the Commission took the following into account: the fact that the FITD held a public mandate; the control by the public authorities over the resources used by the FITD to finance the intervention measures and the fact that the contributions used by the FITD to finance the measures were mandatory.140First, the Commission considered that the FITD held a public mandate and that the FITD intervened for the benefit of Tercas in order to protect depositors’ deposits. The Italian authorities chose to allow their deposit guarantee schemes to use the resources collected from their members in order to adopt intervention measures other than the repayment of depositors’ deposits (see recital 121 of the contested decision).141In that respect, as is evident from the foregoing with regard to the imputability of the intervention measures to the State, it is the case that the public mandate conferred on various deposit guarantee schemes in Italy requires only that a scheme be implemented which enables depositors’ deposits to be repaid in the event of the failure of a credit institution. That public mandate does not require, however, that those schemes should also intervene in advance, before such a failure occurs, by requesting the necessary resources from their members. In the present case, the statutes of the FITD, a private consortium, have, since its creation, provided for the possibility of adopting measures for the benefit of one of its members if that member, which is in difficulty, has a prospect of recovering and if that intervention measures is less costly than implementing the deposit guarantee for depositors which has become statutory.142The same analysis applies with regard to the examination of the evidence relied on in order to establish that the intervention measures were financed through State resources.143Secondly, in order to establish that the public authorities had control over the resources used by the FITD to finance the intervention measures, the Commission noted certain features of those measures. Thus, it stated that only banks under special administration could benefit from the FITD’s intervention under Article 29(1) of its statutes and, therefore, only the special administrator of Tercas, a public official answerable to the Bank of Italy, had ‘[the power to initiate] intervention on the part of the FITD’ (see recital 128 of the contested decision). Moreover, it stated that the Bank of Italy has wide-ranging powers in respect of the FITD, having, inter alia, approved its statutes and authorised the measures adopted for the benefit of Tercas before they entered into force (see recitals 124 and 127 to 129 of the contested decision).144In that regard, for the same reasons as those given with regard to the imputability of the intervention measures to the State, it is clear that the facts set out above must be assessed in their proper context, from which it is apparent that they are not sufficient for it to be concluded that, as a result of the control exercised by the public authorities, the resources used by the FITD to finance the intervention measures are ‘State resources’ within the meaning of Article 107(1) TFEU.145The decision by the special administrator of Tercas to request that the FITD intervene on behalf of the undertaking for which he performed management duties on account of it having been placed under special administration, is explained by the fact that, of the various different options available, the option proposed by BPB appeared to him to be the most interesting. Since BPB’s option was conditional on the FITD intervening for the benefit of Tercas (see paragraph 16 above), the view cannot therefore be taken that such a request stemmed from an initiative by the public authorities, which had thus sought to direct the use of the FITD’s resources. Accordingly, it is rather on account of a private initiative sent to the special administrator, who took the view, as an ordinary administrator in the same situation would have done, that it was in the interest of the undertaking under his administration for a request for intervention to be sent to the FITD in accordance with Article 29(1) of its statutes.146Moreover, as the Bank of Italy claimed before the General Court, the purpose of the various intervention possibilities available to it with regard to the FITD is simply to enable it to exercise its supervisory powers as regards the objectives of protecting savers, ensuring the stability of the banking system and the sound and prudent management of banks.147In the present cases, the documents in the case file do not show that the authorisation of the measures adopted by the FITD for the benefit of Tercas gave rise to anything other than a formal check by the Bank of Italy that the measures were lawful. In the present case, that authorisation, like the various measures which preceded it, following the FITD’s approval as one of the recognised deposit guarantee schemes in Italy, cannot, both individually and taken as a whole, be treated as measures which enable it to be established that the State was in a position to direct the use of the FITD’s resources to finance the intervention measures by exercising a dominant influence over that consortium.148The measures adopted by the FITD for the benefit of Tercas originate from a proposal that was made initially by BPB and subsequently, in its interests, adopted by Tercas. Moreover, those measures, which meet the consortium’s objective, are also in the interests of its members.149In that context, the various mechanisms provided for by Italian legislation to prevent such an intervention disrupting the banking sector or threatening the implementation of the public mandate given to the FITD did no more in this case, in general terms, than simply validate the option accorded to the FITD by its statutes to adopt measures for the benefit of one of its members by allocating its own resources and, more specifically, to authorise the measures adopted by the FITD for the benefit of Tercas in the interests of BPB, Tercas and all of the other consortium members. At no point has the Commission been able to establish that the Bank of Italy, through its formal scrutiny of lawfulness, sought to direct the private resources that were made available to the FITD.150Thirdly, the Commission considered that the contributions that the FITD uses to finance the intervention measures were mandatory since, first, the member banks in practice had no choice but to become members of the FITD and, secondly, those banks cannot veto the FITD’s decisions or disassociate themselves from the intervention measures on which it has decided (see recitals 133 to 135 of the contested decision).151In order to examine that line of argument, it should first of all be observed that it is not disputed that the funds used for the measures adopted by the FITD for the benefit of Tercas are private resources which were provided by the consortium’s member banks.152In general, the statutes of the FITD provide that it is financed using resources ‘provided by the members of the consortium’ (see Article 1(1) of the statutes of the FITD). The amount of the contributions from the consortium’s member banks is determined on the basis of the amount of their respective repayable funds (‘contributory base’) and is linked to the undertaking’s level of risk, measured using ‘modes of governance indicators’ (see Article 25 of and the annex to the statutes).153Furthermore, at the material time, Article 21 of the statutes of the FITD specified that, in response to decisions taken by the competent statutory bodies, the resources used for intervention measures such as those granted to Tercas were requested by the FITD and provided specifically by the members of the consortium. Thus, while the resources needed for the consortium to operate efficiently contributed to the drawing up of its budget, the contributions intended to be used for intervention measures were regarded as ‘advances’ paid by the members of the FITD, which managed them on their behalf as agent.154The obligation for the FITD’s members to contribute to the intervention measures decided on by the FITD therefore does not stem from a regulatory provision, as is the case where it is specially mandated by the State to manage the contributions made by members under the statutory deposit guarantee for depositors, but from a — private — statutory provision, which maintains the autonomy of the FITD’s members to take decisions.155It should also be noted that, before deciding on the intervention measures and accordingly marshalling the private resources of its members, the FITD made sure, in accordance with the requirements in Article 29 of its statutes and as is clear from the report issued by an auditing and advisory company on 26 May 2014, that the cost of those measures was lower than the cost to its members of the liquidation of Tercas and therefore of calling on the statutory deposit guarantee for depositors.156The measures adopted by the FITD for the benefit of Tercas were therefore not only in the interests of BPB and Tercas, but also in the interests of all of its members since they risked having to pay out sums greater than those required in order to enable the takeover of Tercas by BPB.157In that context, it should be observed that, as the FITD submits, the intervention measures were adopted unanimously by the Executive Committee and the Board of the FITD by the representatives of its members which make up those bodies. None of those representatives were therefore opposed to such a measure.158It is also normal that, once adopted by its governing bodies, in accordance with the provisions in the statutes, the decision in question is binding on all members of the consortium. Moreover, there is nothing in the file to substantiate the argument that some members of the consortium disapproved of the statutory mechanism for interventions or of the measures adopted by the FITD for the benefit of Tercas.159Therefore, the mandatory nature of the contributions by the FITD’s members to the intervention measures stems from a decision which was accepted twice by those members, on account not only of their decision to become members of the FITD, which provides for such a possibility, but also of their decision to agree to such measure being adopted by the FITD’s governing bodies. The intervention measures are also in fact consistent with the FITD’s objectives and with the interests of its members.160Consequently, the Commission’s argument that it is, de facto, difficult for banking institutions to disassociate themselves from the FITD, of which they have historically been members and which today is the only deposit guarantee fund which brings together non-mutual banks, in order to set up a different guarantee fund which might then be recognised by the Bank of Italy and the statutes of which would allow the fund to intervene only under the statutory deposit guarantee for depositors or, as the case may be, to refuse to contribute to an intervention measure for the benefit of a member, even though that measure had been adopted by the governing bodies, remains largely theoretical and has no bearing on the measures at issue in the present case.161It is clear from the foregoing that the Commission has failed to establish sufficiently, in the contested decision, that the resources at issue were controlled by the Italian public authorities and that, therefore, they were at their disposal. The Commission was therefore not entitled to conclude that, even though the measures adopted by the FITD for the benefit of Tercas were in accordance with the statutes of that consortium and in the interests of its members, by using private funds exclusively, it is in reality the public authorities which, by exercising a dominant influence over the FITD, decided to direct the use of those resources in order to finance those measures. Conclusion 162Since the first of the conditions relating to the classification of a measure as aid within the meaning of Article 107(1) TFEU is not satisfied in the present case, the pleas in law alleging that the Commission wrongly considered that the measures at issue presupposed the use of State resources and that they were imputable to the State must be upheld and, accordingly, there being no need to examine the other arguments put forward by the applicants, the contested decision must be annulled. Costs 163Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the applicants and the intervener, in accordance with the form of order sought by those parties.On those grounds,THE GENERAL COURT (Third Chamber, Extended Composition)hereby: 1. Annuls Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)); 2. Orders the European Commission to pay the costs. Frimodt NielsenKreuschitzForresterPółtorakPerilloDelivered in open court in Luxembourg on 19 March 2019.[Signatures]Table of contentsBackground to the disputeEntities involvedCommercial entities concerned by the measuresFITDBank of ItalyContext and the measures adopted by the FITD for the benefit of TercasFirst attempt to interveneDecision to intervene and authorisation by the Bank of ItalyTercas’ position after the measures adopted by the FITDThe administrative procedure and the contested decisionProcedure and forms of order soughtLawThe admissibility of the action brought by the FITDSubstancePreliminary observations on the concept of ‘aid granted by a Member State’Evidence relied on in the contested decision to establish that the measures originate from the StateWhether the measures at issue imputable to the Italian State– The scope of the public mandate given to the FITD– The FITD’s autonomy when adopting the intervention measuresThe financing of the intervention measures through State resourcesConclusionCosts( *1 ) Language of the case: Italian. | 170dd-f913c67-4eab | EN |
Welfare contributions aimed at funding social security benefits in France cannot be charged on income from the assets of French residents insured under the Swiss social security scheme | 14 March 2019 ( *1 )(Reference for a preliminary ruling — Social security — Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Regulation (EC) No 883/2004 — Article 3 — Matters covered — Levies on income from assets charged to a French resident insured under the Swiss social security scheme — Levies apportioned for the funding of two benefits administered by the French National Solidarity Fund for Independent Living — Direct and sufficiently relevant link with certain branches of social security — Definition of ‘social security benefit’ — Individual assessment of an applicant’s personal needs — Taking into account the applicant’s resources in calculating the amount of the benefits)In Case C‑372/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Cour administrative d’appel de Nancy (Administrative Court of Appeal, Nancy, France), made by decision of 31 May 2018, received at the Court on 7 June 2018, in the proceedings Ministre de l’Action et des Comptes publics v Mr and Mrs Raymond Dreyer, THE COURT (Seventh Chamber),composed of T. von Danwitz, President of the Chamber, E. Levits and C. Vajda (Rapporteur), Judges,Advocate General: M. Bobek,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:–Mr and Mrs Dreyer, by J. Schaeffer, avocat,the French Government, by D. Colas and R. Coesme, acting as Agents,the European Commission, by D. Martin and M. Van Hoof, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1).2The request has been made in proceedings between the Ministre de l’Action et des Comptes publics (Minister for the Public Sector and Public Accounts, France) and Mr and Mrs Raymond Dreyer, French tax residents insured under the Swiss social security scheme (‘Mr and Mrs Dreyer’) concerning the payment of contributions and levies imposed on Mr and Mrs Dreyer for the 2015 tax year in respect of their income from choses in action. Legal context European Union law The Agreement on the free movement of persons 3On 21 June 1999, the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, signed seven agreements, including the Agreement on the free movement of persons (OJ 2002 L 114, p. 6, ‘the Agreement on the free movement of persons’). By Decision 2002/309/EC, Euratom, of the Council and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1), those seven agreements were approved on behalf of the Community and entered into force on 1 June 2002.4According to the preamble to the Agreement on the free movement of persons, the contracting parties ‘resolved to bring about the free movement of persons between them on the basis of the rules applying in the European Community’.5Under the heading ‘Coordination of social security systems’, Article 8 of that agreement provides:‘The Contracting Parties shall make provision, in accordance with Annex II, for the coordination of social security systems with the aim in particular of:(a)securing equality of treatment;(b)determining the legislation applicable;(c)aggregation, for the purpose of acquiring and retaining the right to benefits, and of calculating such benefits, all periods taken into consideration by the national legislation of the countries concerned;(d)paying benefits to persons residing in the territory of the Contracting Parties;(e)fostering mutual administrative assistance and cooperation between authorities and institutions.’6Article 1 of Annex II of that agreement, as amended by Decision No 1/2012 of the Joint Committee established under the Agreement on the free movement of persons of 31 March 2012 (OJ 2012 L 103, p. 51), reads as follows:‘1. The contracting parties agree, with regard to the coordination of social security schemes, to apply among themselves the legal acts of the European Union to which reference is made in, and as amended by, section A of this Annex, or rules equivalent to such acts.2. The term “Member State(s)” contained in the legal acts referred to in section A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant legal acts of the European Union.’7Section A of that annex refers, inter alia, to Regulation No 883/2004. Regulation No 883/2004 8Article 3(1) and (3) of Regulation No 883/2004 states:‘1. This Regulation shall apply to all legislation concerning the following branches of social security:sickness benefits;maternity and equivalent paternity benefits;invalidity benefits;old-age benefits;survivors’ benefits;(f)benefits in respect of accidents at work and occupational diseases;(g)death grants;(h)unemployment benefits;(i)pre-retirement benefits;(j)family benefits.…3. This Regulation shall also apply to the special non-contributory cash benefits covered by Article 70.’9Article 11(1) of that regulation provides:‘Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.’ French law 10Article 1600-0 Fa of the Code général des impôts (General Tax Code), in the version applicable to the main proceedings, provided:‘I. – A social levy on income from assets shall be introduced in accordance with the prescriptions of Article L. 245-14 of the Code de la sécurité sociale [(Social Security Code)].…’11Article L. 245-16 of the Code de la sécurité sociale (Social Security Code), in the version applicable to the main proceedings, provided:‘I. – The rate of the social levy referred to in Articles L. 245-14 and L. 245-15 shall be fixed at 4.5%.II.– The revenue from the levies referred to in Part I shall be apportioned as follows:one share corresponding to a rate of 1.15% to the Caisse nationale de solidarité pour l’autonomie [(National Solidarity Fund for Independent Living)];12Under Article L. 14-10-1 of the Code de l’action sociale et des familles (Social Assistance and Family Rights Code, ‘the Social Assistance Code’):‘I. – The National Solidarity Fund for Independent Living shall have the following tasks:1° It shall contribute to the funding of the prevention of and the provision of support in respect of the loss of independence of the elderly and disabled, at home and in an institution, and also to the funding of the maintenance of family carers, having due regard to the equal treatment of the persons concerned throughout the territory;10° It shall contribute to the funding of investments intended to ensure conformity with technical and safety standards, to modernise premises in current use and to increase the capacity of health and social assistance centres and services;13Article L. 14-10-4 of the Social Assistance Code reads as follows:‘The revenue apportioned to the National Solidarity Fund for Independent Living shall be comprised of:2° An additional contribution to the social levy referred to in Article L. 245-14 of the Social Security Code and an additional contribution to the social levy referred to in Article L. 245-15 of that code. Those additional contributions shall be established, reviewed, collected and payable in accordance with the same conditions and subject to the same penalties as apply to the social levy. Their rate shall be fixed at 0.3%;14Article L. 232-1 of the Social Assistance Code provides:‘Every elderly person residing in France who is unable to assume the consequences of the lack or loss of independence linked with his physical or mental state shall be entitled to a personal independence allowance enabling him to receive care appropriate to his needs.This allowance, granted on the same conditions throughout the national territory, is intended for persons who, notwithstanding the care which they might receive, require assistance in carrying out the essential acts of life or whose condition requires regular supervision.’15Article L. 232-2 of the Social Assistance Code provides:‘The personal independence allowance, which is in the nature of a benefit in kind, shall be granted, on application, within the limits of tariffs fixed by regulation, to any person providing evidence of a stable and lawful residence who satisfies the conditions, also established by regulation, relating to age and loss of independence, assessed against a national scale.’16Article L. 232-4 of the Social Assistance Code states:‘The personal independence allowance shall be calculated as the proportion of the assistance plan that the recipient is using, minus a contribution to the costs thereof.That contribution shall be calculated and updated on a yearly basis on 1 January, according to the recipient’s income as determined in accordance with the conditions laid down in Articles L. 132-1 and L. 132-2 and with the amount of the assistance plan, according to a national scale updated on a yearly basis on 1 January under Article L 232-3-1.17Article L. 245-1 of the Social Assistance Code reads as follows:‘I. – Every disabled stable and lawful resident of mainland France, of the areas referred to in Article L. 751-1 of the Social Security Code or of Saint Pierre and Miquelon, … whose age is below a limit fixed by decree and whose disability meets criteria established by decree taking into account, in particular, the nature and degree of the needs for compensation having regard to his life plan, shall be entitled to a compensation allowance in the nature of a benefit in kind which may be paid, according to the choice of the recipient, in kind or in cash.If a person satisfies the minimum age requirements to be eligible for the allowance laid down in Article L. 541-1 of the Social Security Code, entitlement to the compensation allowance shall be governed by the conditions laid down in Part III of this article.If the recipient of a compensation allowance has an entitlement of the same nature under a social security scheme, payments received thereunder shall be deducted from the amount of the compensation allowance in accordance with conditions laid down by decree.18Article L. 245-6 of the Social Assistance Code provides:‘The compensation allowance shall be granted on the basis of tariffs and amounts fixed according to the nature of the expenditure, within the limit of rates of reimbursable care which may vary according to the recipient’s resources. The maximum thresholds, limits or rates of reimbursable care shall be fixed by an order of the Minister for disabled persons. The form and duration of that payment shall be laid down by decree.The following shall be excluded from the resources taken into account when determining the rate of reimbursable care referred to in the preceding subparagraph:A person’s employment income;Temporary allowances, benefits and life annuities for persons suffering from occupational injuries or their survivors as listed in Article 81(8) of the General Tax Code;Substitute income which shall be listed by way of regulation;The employment income of the person’s spouse, partner or civil partner, or of his family carer who, whilst living in the person’s house, takes care of his parents even if that person’s place of residence is with his parents;Life annuities referred to in Article 199f(I)(2) of the General Tax Code which were created by a disabled person for himself or, for his benefit, by his parents or legal representative, his grandparents, his brothers and sisters or his children;Certain specific-purpose social benefits listed by way of regulation.’ The dispute in the main proceedings and the question referred for a preliminary ruling 19Mr and Mrs Dreyer are French nationals, living in France and tax residents of that Member State. Mr Dreyer, who is now retired, spent his entire career working in Switzerland. He and his wife are insured under the Swiss social security scheme.20By tax adjustment notice of 31 October 2016, confirmed by decision of 6 December 2016, the French tax authorities declared Mr and Mrs Dreyer subject to the general welfare contribution, the social debt repayment contribution, the social levy and additional contribution, and the solidarity levy (together ‘the contributions and levies at issue’) in respect of income from assets received in France in 2015 in the form of income from choses in action. The contributions and levies at issue fund three French bodies, namely the Fonds de solidarité vieillesse (Old-Age Solidarity Fund, ‘the FSV’), the Caisse d’amortissement de la dette sociale (Social Security Debt Redemption Fund, ‘the CADES’) and the Caisse nationale de solidarité pour l’autonomie (National Solidarity Fund for Independent Living, ‘the CNSA’).21On the basis that the allowances funded by the contributions and levies at issue administered by the FSV, the CADES and the CNSA were social security contributions, Mr and Mrs Dreyer disputed their liability to those contributions and levies before the Tribunal administratif de Strasbourg (Administrative Court, Strasbourg, France) on the ground that they were already insured under the Swiss social security scheme and cannot be required to contribute to the funding of the French social security scheme on account of the principle of single applicable social legislation resulting from Regulation No 883/2004. In a decision of 11 July 2017, the Tribunal administratif de Strasbourg (Administrative Court, Strasbourg) upheld Mr and Mrs Dreyer’s action and declared that they were not liable to pay the contributions and levies at issue.22The Ministre de l’Action et des Comptes publics (Minister for the Public Sector and Public Accounts) then appealed against that decision before the referring court, the Cour administrative d’appel de Nancy (Administrative Court of Appeal, Nancy, France).23First of all, the referring court decided, as did the Tribunal administratif de Strasbourg (Administrative Court, Strasbourg), that Mr and Mrs Dreyer were not liable to pay the share of the contributions and levies at issue apportioned to the FSV and to the CADES, namely the general welfare contribution, the social debt repayment contribution, solidarity levy and part of the social levy. According to the referring court, that share of the contributions and levies at issue has a direct and sufficiently relevant link with certain branches of social security and is therefore governed by the principle of single applicable legislation laid down in Article 11(1) of Regulation No 883/2004. Accordingly, in accordance with the rule in the judgment of 26 February 2015, de Ruyter (C‑623/13, EU:C:2015:123), since Mr and Mrs Dreyer are insured under the Swiss social security scheme, they cannot be liable in France to the social contributions and levies intended to fund the French social security scheme.24However, the referring court harbours doubts as to whether the share of the contributions and levies at issue apportioned to the CNSA, namely part of the social levy and the additional contribution, may also be regarded as funding social security contributions, within the meaning of Regulation No 883/2004, and having a direct and sufficiently relevant link with certain branches of social security.25In that regard, citing paragraph 37 of the judgment of 21 February 2006, Hosse (C‑286/03, EU:C:2006:125), the referring court notes that, according to the Court’s settled case-law, a benefit may be regarded as a ‘social security benefit’ in so far as, first, it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and, second, relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004.26As regards both CNSA benefits funded in part by the contributions and levies at issue, namely the allocation personnalisée d’autonomie (personal independence allowance, ‘the APA’) and the prestation compensatoire du handicap (disability compensation allowance, ‘the PCH’), the referring court considers that the second condition referred to in the previous paragraph is satisfied. However, it asks whether the first condition may be regarded as entirely satisfied. Although it has found that the APA and the PCH are allocated without any discretionary assessment of an applicant’s personal needs on the basis of a legally defined position, the referring court notes, as submitted by the Ministre de l’Action et des Comptes publics (Minister for the Public Sector and Public Accounts), that it is possible for the APA and the PCH not to be regarded as being granted without any individual assessment of recipients’ personal needs on account of the fact that their amount depends on the recipients’ level of resources or varies according to their resources.27In those circumstances, the Cour administrative d’appel de Nancy (Administrative Court of Appeal, Nancy) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Do the contributions allocated to the [CNSA], which contribute to the funding of [the APA and the PCH], have a direct and sufficiently relevant link with certain branches of social security listed in Article 3 of Regulation No 883/2004 and do they therefore come within the scope of that regulation solely on the ground that those benefits relate to one of the risks set out in that Article 3 and are granted without any discretionary assessment on the basis of a legally defined position?’ Consideration of the question referred 28By its question, the referring court wishes to know, in essence, whether Article 3 of Regulation No 883/2004 must be interpreted as meaning that benefits, such as the APA and the PCH, may, for the purposes of their classification as ‘social security contributions’ within the meaning of that provision, be regarded as granted without any individual assessment of a recipient’s personal needs despite the fact that the calculation of their amount depends on the recipients’ level of resources or varies according to their resources.29As a preliminary matter, it is to be noted that, under Article 8 of the Agreement on the free movement of persons, the contracting parties are to make provision, in accordance with Annex II to the agreement, for the coordination of social security systems with the aim in particular of determining the legislation applicable and paying benefits to persons residing in the territory of the contracting parties. Section A(1) of Annex II to the Agreement on the free movement of persons provides for the application, between the parties, of Regulation No 883/2004. Thus, and since, according to Article 1(2) of Annex II to that agreement, ‘the term “Member State(s)” contained in the legal acts referred to in section A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant legal acts of the European Union’, the provisions of that regulation also cover the Swiss Confederation (judgment of 21 March 2018, Klein Schiphorst, C‑551/16, EU:C:2018:200, paragraph 28).30In those circumstances, the situation of the applicants in the main proceedings, nationals of a Member State and insured under the Swiss social security scheme, falls within the scope of Regulation No 883/2004 (see, by analogy, judgment of 21 March 2018, Klein Schiphorst, C‑551/16, EU:C:2018:200, paragraph 29).31As regards the substance of the question referred, it should be noted that the distinction between benefits falling within the scope of Regulation No 883/2004 and those which are outside it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (see, to that effect, inter alia judgments of 5 March 1998, Molenaar, C‑160/96, EU:C:1998:84, paragraph 19; of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 70, and of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 31).32The Court has consistently held that a benefit may be regarded as a ‘social security benefit’ in so far as it is granted to recipients without any individual and discretionary assessment of personal needs on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004 (see, to that effect, inter alia judgments of 27 March 1985, Hoeckx, 249/83, EU:C:1985:139, paragraphs 12 to 14; of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 71, and of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 32).33It must be borne in mind that the first condition referred to in the previous paragraph is satisfied if a benefit is granted in the light of objective criteria which, if they are met, confer entitlement to the benefit, the competent authority having no power to take account of other personal circumstances (see, to that effect, inter alia, judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 17; of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 73, and of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 34).34In that regard, the Court has previously held, in relation to benefits which are granted, refused or the amount of which is calculated by taking into account the recipient’s resources, that the grant of such benefits does not depend on an individual assessment of the applicant’s personal needs, provided that an objective, legally defined criterion gives entitlement to the benefit without the competent authority being able to take other personal circumstances into consideration (see, to that effect, judgments of2 August 1993, Acciardi, C‑66/92, EU:C:1993:341, paragraph 15; of 18 July 2006, De Cuyper, C‑406/04, EU:C:2006:491, paragraph 23, and of 16 September 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 52).35In addition, the Court stated, in paragraph 38 of the judgment of 25 July 2018, A (Assistance for a disabled person) (C‑679/16, EU:C:2018:601), that, in order for it to be considered that the first condition referred to in paragraph 32 above has not been satisfied, the discretionary nature of the assessment, by the competent authority, of the personal needs of a recipient of a benefit must, above all, relate to eligibility for that benefit. Those considerations apply, mutatis mutandis, in respect of the individual character of the assessment by the competent authority of the personal needs of a recipient of a benefit.36As regards the benefits at issue in the main proceedings, according to the documents in the case file submitted to the Court, any person over 60 years old who is deemed to have lost his independence in respect of predefined criteria and is a stable and lawful resident of France is entitled to the APA. As for the PCH, that benefit may be claimed by any disabled person, in principle, less than 60 years old, who is a stable and lawful resident of France and whose disability satisfies certain predefined criteria. It is common ground that eligibility to both benefits is independent of an applicant’s resources. Although a recipient’s resources are taken into account in determining the actual amount which will be paid to him, it follows from Articles L. 232-4 and L. 245-6 of the Social Assistance Code that that amount is, in essence, calculated on the basis of objective criteria applied without distinction to all recipients according to their level of resources.37It is therefore clear from those provisions of the Social Assistance Code that a recipient’s resources are not taken into account in conferring entitlement to the APA and PCH, but for the method of calculating those benefits, since the benefits must be granted if the applicant satisfies the conditions for their eligibility, irrespective of his resources.38It follows from the foregoing considerations that taking into account a recipient’s resources for the sole purpose of calculating the actual amount of APA or PCH on the basis of legally defined, objective criteria does not involve an individual assessment by the competent authority of the recipient’s personal needs.39Contrary to what the French Government submits in its written observations, the need to assess, for the purposes of the APA and of the PCH, the degree of the applicant’s loss of independence or disability also does not involve an individual assessment of that applicant’s personal needs. As is clear from the case file submitted to the Court, the assessments of ‘loss of independence’ (for the APA) and of the ‘disability’ (for the PCH) are made by a doctor or an expert from a socio-medical team or a multidisciplinary team as regards predefined scales, lists and guidelines, that is to say, in accordance with the case-law set out in paragraph 34 above, on the basis of legally defined, objective criteria which, if satisfied, confer entitlement to the corresponding benefit. In those circumstances, it cannot be maintained that the grant of the APA and the PCH depends on an individual assessment of the applicant’s personal needs within the meaning of the case-law cited in paragraph 32 above.40Furthermore, and also contrary to what the French Government submits in its written observations, the APA and the PCH cannot be regarded as ‘special non-contributory cash benefits’ within the meaning of Article 3(3) of Regulation No 883/2004. Since it follows both from the previous considerations and the findings of the referring court set out in paragraph 26 above that both cumulative conditions referred to in paragraph 32 of that judgment are satisfied and that the APA and the PCH must therefore be regarded as ‘social security contributions’, there is no need to ascertain whether each of the benefits may also be regarded as ‘special non-contributory cash benefits’, since the Court has previously held that both classifications are mutually exclusive (see, to that effect, judgments of 21 February 2006, Hosse, C‑286/03, EU:C:2006:125, paragraph 36, and of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 45).41In the light of all of the foregoing considerations, the answer to the question referred is that Article 3 of Regulation No 883/2004 must be interpreted as meaning that benefits, such as the APA and the PCH, must, for the purposes of their classification as ‘social security contributions’ within the meaning of that provision, be regarded as granted without any individual assessment of a recipient’s personal needs, since the recipient’s resources are taken into account for the sole purpose of calculating the actual amount of those benefits on the basis of legally defined, objective criteria. Costs 42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Seventh Chamber) hereby rules: Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems must be interpreted as meaning that benefits, such as the personal independence allowance and the disability compensation allowance, must, for the purposes of their classification as ‘social security contributions’ within the meaning of that provision, be regarded as granted without any individual assessment of a recipient’s personal needs, since the recipient’s resources are taken into account for the sole purpose of calculating the actual amount of those benefits on the basis of legally defined, objective criteria. [Signatures]( *1 ) Language of the case: French. | a11b2-26f6584-4601 | EN |
Motor vehicle driving tuition for categories B and C1 is not school or university education exempt from VAT | 14 March 2019 ( *1 )(Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 132(1)(i) and (j) — Exemption for certain activities in the public interest — School or university education — Concept — Driving school tuition provided by a driving school)In Case C‑449/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 16 March 2017, received at the Court on 26 July 2017, in the proceedings A & G Fahrschul-Akademie GmbH v Finanzamt Wolfenbüttel, THE COURT (First Chamber),composed of R. Silva de Lapuerta, Vice-President of the Court, acting as President of the First Chamber, A. Arabadjiev, E. Regan (Rapporteur), C.G. Fernlund and S. Rodin, Judges,Advocate General: M. Szpunar,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 20 June 2018,after considering the observations submitted on behalf of:–A & G Fahrschul-Akademie GmbH, by D. Hippke, Steuerberater, and A. Hüttl, Rechtsanwalt,the German Government, by T. Henze and R. Kanitz, acting as Agents,the Spanish Government, by S. Jiménez García, acting as Agent,the Italian Government, by G. Palmieri, acting as Agent, assisted by F. Urbani Neri, avvocato dello Stato,the Austrian Government, by G. Eberhard, acting as Agent,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and R. Campos Laires, acting as Agents,the Finnish Government, by S. Hartikainen, acting as Agent,the European Commission, by R. Lyal and B.-R. Killmann, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 3 October 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 132(1)(i) and (j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).2The request has been made in proceedings between A & G Fahrschul-Akademie GmbH (‘A & G’) and Finanzamt Wolfenbüttel (tax office, Wolfenbüttel, Germany; ‘the tax office’) concerning the refusal by the tax office to exempt from value added tax (VAT) services relating to motor vehicle driving tuition provided by A & G for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in Article 4(4) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p. 18). Legal context EU law Directive 2006/112 3Title IX of Directive 2006/112 is entitled ‘Exemptions’. That title contains, inter alia, a Chapter 2, headed ‘Exemptions for certain activities in the public interest’, containing Article 132, which provides, in paragraph 1 thereof, that Member States are to exempt the following transactions:‘…(i)the provision of children’s or young people’s education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the Member State concerned as having similar objects;(j)tuition given privately by teachers and covering school or university education;…’ Directive 2006/126 4Recital 8 of Directive 2006/126 states:‘On road safety grounds, the minimum requirements for the issue of a driving licence should be laid down. Standards for driving tests and licensing need to be harmonised. To this end the knowledge, skills and behaviour connected with driving motor vehicles should be defined, the driving test should be based on these concepts and the minimum standards of physical and mental fitness for driving such vehicles should be redefined.’5Article 4 of that directive provides:‘1. The driving licence provided for in Article 1 shall authorise the driving of power-driven vehicles in the categories defined hereafter. It may be issued from the minimum age indicated for each category. A “power-driven vehicle” means any self-propelled vehicle running on a road under its own power, other than a rail-borne vehicle.…4. motor vehicles:(b)Category B:motor vehicles with a maximum authorised mass not exceeding 3500 kg and designed and constructed for the carriage of no more than eight passengers in addition to the driver; motor vehicles in this category may be combined with a trailer having a maximum authorised mass which does not exceed 750 kg.(d)Category C1:motor vehicles other than those in categories D1 or D, the maximum authorised mass of which exceeds 3500 kg, but does not exceed 7500 kg, and which are designed and constructed for the carriage of no more than eight passengers in addition to the driver; motor vehicles in this category may be combined with a trailer having a maximum authorised mass not exceeding 750 kg; German law 6In accordance with Paragraph 4(21) of the Umsatzsteuergesetz (Law on Turnover Tax), in the version published on 21 February 2005 (BGB1. 2005 I, p. 386), the following transactions covered by Paragraph 1(1)(1) of that law are exempt from tax:‘(a)the services of private schools and other general education or vocational training organisations directly serving the purpose of schooling and education,(aa)where they are approved at federal level as substitute schools in accordance with Article 7(4) of the Basic Law (Grundgesetz) or are permitted under the law of the Land, or(bb)where the competent authority of the Land certifies that they are in due preparation for a profession or for an examination to be taken before a legal person governed by public law,the tuition services of independent teachers directly serving the purpose of schooling and educationfor universities within the meaning of Paragraphs 1 and 70 of the Hochschulrahmengesetz (Framework Law on higher education) and public general education or vocational training schools, orfor private schools and other general education or vocational training organisations, provided they satisfy the requirements set out under letter (a);7Paragraph 6 of the Verordnung über die Zulassung von Personen zum Straßenverkehr (Regulation on the authorisation of persons to drive on the highway), in the version of 13 December 2010 (BGBl. 2010 I, p. 1980), provides:‘(1) Driving licences are issued for the following categories:Category B: [Article 4(4)(b) of Directive 2006/126]Category C1: [Article 4(4)(d) of Directive 2006/126] The dispute in the main proceedings and the questions referred for a preliminary ruling 8A & G operates a driving school in the legal form of a limited liability company. It did not show the amount of turnover tax due separately in the invoices which it issued. For the tax year 2010 (‘the period at issue’), it initially declared taxable transactions. The tax office relied on A & G’s turnover tax declaration.9By letter of 22 December 2014, A & G applied for the amount owed by it in terms of VAT to be reduced to zero, a request which the tax office turned down. A & G’s objection and action against that decision of the tax office were dismissed. The Finanzgericht (Finance Court, Germany) held, inter alia, that A & G could not rely on the tax exemption referred to in Article 132(1)(j) of Directive 2006/112. The services provided by A & G, consisting in the provision of theoretical tuition and practical driving instruction, were not, that court found, covered by the concept of ‘school or university education’ within the meaning of that provision, since, by virtue of a recommendation for road safety education at school in force during the period at issue, practical driving instruction was neither a necessary nor a desirable component of such education.10A & G contests that decision of the Finanzgericht (Finance Court) in its appeal on a point of law (‘Revision’) before the referring court, the Bundesfinanzhof (Federal Finance Court, Germany). To that end, it submits, inter alia, that the national legislature’s objective concerning driving tuition in a driving school is to educate road users to act responsibly.11Furthermore, according to the applicant, practical driving instruction provided by a driving school and road safety training courses organised by, inter alia, the Allgemeiner Deutscher Automobil-Club (German Automobile Club) serve the same objectives. Therefore, in its view, it would be contrary to the principle of neutrality to tax those comparable activities differently.12The referring courts states that, under national law, the services offered by A & G are not exempt, as it does not fulfil the requirements laid down in Paragraph 4(21)(a) or (b) of the Law on Turnover Tax, in the version published on 21 February 2005. However, it takes the view that A & G might be able to rely on Article 132(1)(i) or (j) of Directive 2006/112.13In that regard, the referring court is inclined to the view that the activities of the applicant in the main proceedings come within the concept of ‘school or university education’ within the meaning of Article 132(1)(i) and (j) of Directive 2006/112.14On the other hand, it has doubts as to whether A & G fulfils the other criteria laid down by those provisions, in so far as it is uncertain whether A & G can be recognised as ‘an organisation … having similar objects’ to bodies governed by public law for the purposes of Article 132(1)(i) of that directive or whether its activities can be regarded as coming within the scope of tuition given privately by teachers and covering school or university education within the meaning of Article 132(1)(j) of that directive.15In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does the concept of “school or university education” in Article 132(1)(i) and (j) of Directive [2006/112] cover driving school tuition to acquire category B and category C1 driving licences?(2)If the answer to the first question is in the affirmative, can the applicant [in the main proceedings be recognised] as “an organisation having similar objects” for the purposes of Article 132(1)(i) of Directive [2006/112] on the basis of the provisions on the driving instructor examination and the issue of a driving instruction and driving school licence in [the Gesetz über das Fahrlehrerwesen (Law on driving instructors) of 25 August 1969], and of the public interest in the training of learner drivers to be safe, responsible and environmentally aware road users?(3)If the answer to the second question is in the negative, does the term “tuition given privately by teachers” contained in Article 132(1)(j) of Directive [2006/112] require that the taxable person be an individual trader?(4)If the answers to the second and third questions are in the negative, is an instructor always providing tuition privately within the meaning of Article 132(1)(j) of Directive [2006/112] if he acts on his own account and at his own risk, or must further requirements be met to qualify as a private teacher?’ Consideration of the questions referred The first question 16By its first question, the referring court asks, in essence, whether the concept of ‘school or university education’, within the meaning of Article 132(1)(i) and (j) of Directive 2006/112, must be interpreted as covering motor vehicle driving tuition provided by a driving school, such as that at issue in the main proceedings, for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in Article 4(4) of Directive 2006/126.17Article 132 of Directive 2006/112 provides for exemptions which, as indicated by the title of the chapter in which that provision features, are intended to encourage certain activities in the public interest. However, those exemptions do not cover every activity performed in the public interest, but only those listed in that provision and described in great detail (judgment of 4 May 2017, Brockenhurst College, C‑699/15, EU:C:2017:344, paragraph 22 and the case-law cited).18According to the case-law of the Court, those exemptions constitute autonomous concepts of EU law which have the purpose of avoiding divergences in the application of the VAT system from one Member State to another (see, to that effect, judgment of 26 October 2017, The English Bridge Union, C‑90/16, EU:C:2017:814, paragraph 17 and the case-law cited).19The terms used to specify the exemptions referred to in Article 132 of Directive 2006/112 are to be interpreted strictly, since they constitute exceptions to the general principle, arising from Article 2 of that directive, that VAT is to be levied on all services supplied for consideration by a taxable person. However, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive them of their intended effect (judgment of 4 May 2017, Brockenhurst College, C‑699/15, EU:C:2017:344, paragraph 23 and the case-law cited).20It must be recalled that Article 132(1)(i) and (j) of that directive contains no definition of the concept of ‘school or university education’.21The Court has, however, first, taken the view that the transfer of knowledge and skills between a teacher and students is a particularly important element of educational activity (judgment of 14 June 2007, Horizon College, C‑434/05, EU:C:2007:343, paragraph 18).22Second, the Court has stated that the concept of ‘school or university education’, within the meaning of Directive 2006/112, is not limited solely to education which leads to examinations for the purpose of obtaining qualifications or which provides training for the purpose of carrying out a professional or trade activity, but includes other activities which are taught in schools or universities in order to develop pupils’ or students’ knowledge and skills, provided that those activities are not purely recreational (judgment of 28 January 2010, Eulitz, C‑473/08, EU:C:2010:47, paragraph 29 and the case-law cited).23In that regard, it must be noted, as the Advocate General observes in point 35 of his Opinion, that, in accordance with that settled case-law, activities which are not purely recreational are likely to be covered by the concept of ‘school or university education’ as long as the tuition is provided in schools or universities.24Thus, the concept of ‘school or university education’ within the meaning of Article 132(1)(i) and (j) of Directive 2006/112 covers activities which are different both because of their specific nature and by reason of the framework in which they are carried out (see, to that effect, judgment of 14 June 2007, Horizon College, C‑434/05, EU:C:2007:343, paragraph 20).25It follows that, as the Advocate General observes in points 13 to 17 of his Opinion, by that concept, the EU legislature intended to refer to a certain type of education system which is common to all the Member States, irrespective of the characteristics particular to each national system.26Consequently, the concept of ‘school or university education’ for the purposes of the VAT system refers generally to an integrated system for the transfer of knowledge and skills covering a wide and diversified set of subjects, and to the furthering and development of that knowledge and those skills by the pupils and students in the course of their progress and their specialisation in the various constituent stages of that system.27It is in the light of those considerations that the Court must examine whether driving tuition provided by a driving school, such as that of the applicant in the main proceedings, for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in Article 4(4) of Directive 2006/126 may be covered by the concept of ‘school or university education’ within the meaning of Article 132(1)(i) and (j) of Directive 2006/112.28In the present case, the applicant in the main proceedings submits that the driving tuition which it provides covers the transfer of both the practical and theoretical knowledge necessary for the purpose of acquiring driving licences for vehicles in categories B and C1 and that the objective of such tuition is not purely recreational, since possession of such licences is liable to meet, inter alia, professional needs. Therefore, the tuition provided for that purpose is, it argues, covered by the concept of ‘school or university education’ referred to in Article 132(1)(i) and (j) of Directive 2006/112.29It should be noted, however, that, even if it covers a range of practical and theoretical knowledge, driving tuition provided in a driving school, such as that at issue in the main proceedings, nevertheless remains specialised tuition which does not amount, in itself, to the transfer of knowledge and skills covering a wide and diversified set of subjects or to their furthering and development which is characteristic of school or university education.30In the light of the foregoing, the answer to the first question is that the concept of ‘school or university education’, within the meaning of Article 132(1)(i) and (j) of Directive 2006/112, must be interpreted as not covering motor vehicle driving tuition provided by a driving school, such as that at issue in the main proceedings, for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in Article 4(4) of Directive 2006/126. The second, third and fourth questions 31In view of the answer to the first question, there is no need to answer the second, third and fourth questions. Costs 32Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: The concept of ‘school or university education’, within the meaning of Article 132(1)(i) and (j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as not covering motor vehicle driving tuition provided by a driving school, such as that at issue in the main proceedings, for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in Article 4(4) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences. [Signatures]( *1 ) Language of the case: German. | 9ed23-10b84df-4fd3 | EN |
Where they have been granted on the basis of falsified documents, residence permits obtained for the purpose of family reunification and long-term resident status may be withdrawn, even if the holders of such permits or status were unaware of the fraud committed | 14 March 2019 ( *1 )(Reference for a preliminary ruling — Right to family reunification — Directive 2003/86/EC — Article 16(2)(a) — Article 17 — Withdrawal of the residence permit of a member of the family of a third-country national — Status of third-country nationals who are long-term residents — Directive 2003/109/EC — Article 9(1)(a) — Loss of that status — Fraud — Lack of knowledge of the fraud)In Case C‑557/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 20 September 2017, received at the Court on 22 September 2017, in the proceedings Staatssecretaris van Veiligheid en Justitie v Y.Z., Z.Z., Y.Y., THE COURT (Fourth Chamber),composed of T. von Danwitz, President of the Seventh Chamber, acting as President of the Fourth Chamber, K. Jürimäe, C. Lycourgos (Rapporteur), E. Juhász and C. Vajda, Judges,Advocate General: P. Mengozzi,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 5 July 2018,after considering the observations submitted on behalf of–Y.Z., Z.Z. and Y.Y., by M. Strooij and A.C.M. Nederveen, advocaten,the Netherlands Government, by M.K. Bulterman and H.S. Gijzen and by J.M. Hoogveld, acting as Agents,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by R. Troosters and C. Cattabriga, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 October 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 16(2)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003, L 251, p. 12), and Article 9(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).2The request has been made in proceedings between Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands) (‘the State Secretary’) and Y.Z., Z.Z. and Y.Y., concerning decisions of the State Secretary withdrawing the residence permits granted to Y.Z., Z.Z. and Y.Y. (‘the father’, ‘the son’ and ‘the mother’) ordering them to leave the territory of the Netherlands immediately, and prohibiting their return. Legal context European Union law Directive 2003/86 3Recitals 2 and 4 of Directive 2003/86 state:‘(2)Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.…(4)Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third-country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty.’4Article 1 provides:‘The purpose of this Directive is to determine the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States.’5Article 2 of that directive provides:‘For the purposes of this Directive, the following definitions apply:(c)“sponsor” means a third-country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her;(d)“family reunification” means the entry into and residence in a Member State by family members of a third-country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry;…’6Article 4(1) of Directive 2003/86 is worded as follows:‘The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:(a)the sponsor’s spouse;(b)the minor children of the sponsor and of his/her spouse …;7The first subparagraph of Article 5(2) of that directive provides:‘The application [for entry and residence] shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4, 6 and, where applicable, 7 and 8 ...’8Article 7(1) of that directive reads as follows:‘When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has:stable and regular resources which are sufficient to maintain himself and the members of his family, without recourse to the social assistance of the Member State concerned. …’9Article 13(3) of Directive 2003/86 provides:‘The duration of the residence permits granted to the family member(s) shall in principle not go beyond the date of expiry of the residence permit held by the sponsor.’10Article 16(2) and (3) of that directive provides:‘2. Member States may also reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew the family member’s residence permits, where it is shown that:false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used;3. The Member States may withdraw or refuse to renew the residence permit of a family member where the sponsor’s residence comes to an end and the family member does not yet enjoy an autonomous right of residence under Article 15.’11Under Article 17 of that directive:‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’ Directive 2003/109 12Recitals 2, 4, 6 and 12 of Directive 2003/109 state:The European Council, at its special meeting in Tampere on 15 and 16 October 1999, stated that the legal status of third-country nationals should be approximated to that of Member States’ nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union.The integration of third-country nationals who are long-term residents in the Member States is a key element in promoting economic and social cohesion, a fundamental objective of the Community stated in the Treaty.(6)The main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State. Residence should be both legal and continuous in order to show that the person has put down roots in the country. …(12)In order to constitute a genuine instrument for the integration of long-term residents into society in which they live, long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters, under the relevant conditions defined by this Directive.’13Article 4(1) of that directive provides:‘Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application.’14Article 5(1) of the directive provides:‘Member States shall require third-country nationals to provide evidence that they have, for themselves and for dependent family members:stable and regular resources which are sufficient to maintain himself and the members of his family, without recourse to the social assistance of the Member State concerned. …15The first subparagraph of Article 7(1) of Directive 2003/109 is worded as follows:‘To acquire long-term resident status, the third-country national concerned shall lodge an application with the competent authorities of the Member State in which he resides. The application shall be accompanied by documentary evidence to be determined by national law that he/she meets the conditions set out in Articles 4 and 5 ...’16Article 8(1) of that directive provides:‘The status as long-term resident shall be permanent, subject to Article 9.’17Article 9 of that directive provides:‘1. Long-term residents shall no longer be entitled to maintain long-term resident status in the following cases:detection of fraudulent acquisition of long-term resident status;7. Where the withdrawal or loss of long-term resident status does not lead to removal, the Member State shall authorise the person concerned to remain in its territory if he/she fulfils the conditions provided for in its national legislation and/or if he/she does not constitute a threat to public policy or public security.’ Decision No 1/80 18The first paragraph of Article 7(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, annexed to the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other hand, and concluded, approved and confirmed on behalf of the latter by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1), provides:‘The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:shall be entitled — subject to the priority to be given to workers of Member States of the Community — to respond to any offer of employment after they have been legally resident for at least three years in that Member State;shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.’ Netherlands law 19Article 14(1) of the wet tot algehele herziening van de vreemdelingenwet (Law providing for a comprehensive review of the Law on Foreign Nationals), of 23 November 2000 (Stb. 2000, No 495) (‘the Law of 2000’) provides‘The Minister shall be authorised:to approve, to reject or not to consider applications for the grant of fixed-term residence permits;20Paragraph 18(1) of that law provides:‘An application to extend the validity of a fixed-term residence permit under Article 14 may be refused where:the foreign national has provided inaccurate information or has failed to provide information where that information would have led to the initial application for a permit or for extension being refused;21Article 19 of that law is worded as follows:‘A fixed-term residence permit may be withdrawn on the grounds referred to in Article 18(1), with the exception of the ground under Article 18(1)(b) ...’22Under Article 45a(1) of the Law of 2000:to approve, to reject or not to consider applications for the grant of a long-term residence permit — EU;to withdraw the residence permit of a long-term resident — EU.’23Article 45d(3) of that law provides:‘The residence permit of a long-term resident — EU shall be withdrawn where:the residence permit has been obtained fraudulently.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 24With effect from 29 March 2001, Y.Z., a Chinese national, was granted an ordinary fixed-term residence permit in the Netherlands in connection with his purported duties as manager of a company and then, with effect from 28 April 2006, an ordinary indefinite residence permit in that Member State. Those residence permits were granted on the basis of national law only.25On 31 January 2002, the mother and the son — the father’s spouse and the minor child of the couple born in 1991 respectively — themselves also of Chinese nationality, obtained ordinary fixed-term residence permits in that Member State pursuant to Article 14 of the Law of 2000. Those permits were granted for the purpose of family reunification with the father, within the meaning of Directive 2003/86. With effect from 18 October 2006, the mother and the son were granted ordinary residence permits of indefinite duration in the same Member State, bearing the entry ‘long-term EU resident’, pursuant to Articles 20 and 21 of the Law of 2000, replaced and in substance reproduced in Article 45a of that Law, which transposes Articles 7 and 8 of Directive 2003/109 in the Netherlands legal system.26By several decisions of 29 January 2014, the State Secretary withdrew, with retroactive effect, first, the various ordinary residence permits granted to the father, on the ground that the employment allegedly undertaken by the latter was fictitious, since the company employing him did not carry out any business activities, and that those permits had therefore been acquired fraudulently. Second, the State Secretary also withdrew, with retroactive effect, the fixed-term residence permits granted to the mother and the son for the purpose of family reunification, and also the long-term resident permits granted to them. By those decisions, the State Secretary also ordered the father, the mother and the son to leave the territory of the Netherlands immediately and adopted a decision prohibiting their return.27As regards, more specifically the mother’s and the son’s ordinary fixed-term residence permits, which were withdrawn pursuant to Article 18(1)(c) and Article 19 of the Law of 2000, which implements Article 16(2)(a) of Directive 2003/86 in domestic law, the State Secretary considers that they were acquired fraudulently, given that they were granted on the basis of fraudulent declarations of the father’s employment. The State Secretary considers that the same applies to the mother’s and the son’s long-term residence permits. First, those permits were obtained on the basis of the incorrect assumption that the mother and the son enjoyed, prior to the grant of those permits, lawful residence in the Netherlands. Second, those fraudulent declarations regarding the father’s employment were also produced for the purposes of that grant of residence in order to give the impression that the mother and the son had stable, regular and sufficient resources, since they never had such resources in their own right.28According to the State Secretary, it is irrelevant whether the mother and the son were or were not aware of the fraud committed by the father and the fraudulent nature of the declarations of employment made by him.29By a decision of 4 May 2015, the State Secretary rejected the claim lodged by the father, the mother and the son against the decisions of 29 January 2014.30On an appeal against the decision of 4 May 2015, the rechtbank Den Haag (District Court, The Hague, Netherlands) held, by a judgment of 31 May 2016, that the State Secretary was correct to have withdrawn the various residence permits of the father and, first, the ordinary fixed-term residence permits of the mother and the son, pursuant to Article 16(2)(a) of Directive 2003/86 and, secondly, their long-term residence permits pursuant to Article 9(1)(a) of Directive 2003/109. On the other hand, the court held that the appeal was well founded in that the State Secretary had not duly set out the reasons why the withdrawal of the residence permit granted to the son did not breach the right to private life guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’).31The State Secretary, on the one hand, and the father, the mother and the son, on the other hand, appealed against that judgment before the referring court.32That court upheld the appeal brought by the State Secretary.33The court considered that the latter had not erred in finding, having regard to the various interests involved, that the withdrawal of the residence permits granted to the son did not infringe Article 8 of the ECHR. It added that Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), to which it is appropriate to give the same meaning and scope as to Article 8 of the ECHR, does not lead to a different assessment.34As regards the cross-appeal brought by the father, the mother and the son, the referring court notes that it is not contested that the father fraudulently obtained his fixed-term and indefinite residence permits since his employment was fictitious. Thus, the dispute relates only to the consequences of the fraud committed on the right of residence of the mother and the son.35In the latter regard, the court emphasises, first, that it is common ground that fraudulent declarations of employment, provided by the father to show that he had stable, regular and sufficient resources, within the meaning of Article 7(1)(c) of Directive 2003/86, formed the basis of the grant and extension of the mother’s and the son’s ordinary fixed-term residence permits. However, the father never had such resources since his employment was fictitious. In addition, the court observes that the mother and the son did not obtain residence permits in their own right, within the meaning of Article 15(1) of that directive, since, under Netherlands law, such a residence permit is restricted to non-temporary humanitarian grounds and neither the mother nor the son had ever sought to obtain one.36As regards, on the other hand, the long-term residence permits granted to the mother and to the son, the referring court underlines that it is also common ground that the residence of the latter on Netherlands territory prior to obtaining those permits was based on the father’s fraud. For that reason, the assumption that they satisfied the condition of five year’s legal residence on the territory of a Member State, laid down in Article 4(1) of Directive 2003/109, was also based on fraud. Moreover, those permits were obtained on the basis of the father’s fraudulent declarations of employment, which were made for the purpose of obtaining them.37However, according to the court, it is appropriate, in the present case, to proceed on the premiss that the mother and the son were unaware of the fraudulent actions of the father, since the State Secretary had not only not alleged that they knew of it, but also regarded that aspect as irrelevant.38That court wonders whether, in such circumstances, the State Secretary could validly withdraw, first, the fixed-term residence permits granted to the mother and to the son, pursuant to Article 16(2)(a) of Directive 2003/86 and, second, the long-term residence permits granted to them, pursuant Article 9(1)(a) of Directive 2003/109.39In those circumstances, the Raad van State (Council of State, Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Must Article 16(2)(a) of [Directive 2003/86] be interpreted as precluding the withdrawal of a residence permit granted for the purpose of family reunification in the case where the acquisition of that residence permit was based on fraudulent information but the family member was unaware of the fraudulent nature of that information?(2)Must Article 9(1)(a) of [Directive 2003/109] be interpreted as precluding the withdrawal of long-term resident status in the case where the acquisition of that status was based on fraudulent information but the long-term resident was unaware of the fraudulent nature of that information?’ Consideration of the questions referred The first question 40By its first question, the referring court asks, in essence, whether Article 16(2)(a) of Directive 2003/86 must be interpreted as precluding a Member State from withdrawing residence permits that were issued to family members of a third-country national pursuant to that directive, on the ground that falsified documents were produced for the purpose of obtaining those residence permits, where those family members were unaware of the fraudulent nature of those documents.41In order to reply to that question, it must be recalled that, under Article 4(1)(a) and (b) of Directive 2003/86, Member States are to authorise the entry and the residence, in accordance with that directive, of the sponsor’s spouse and the minor children of the sponsor and of his spouse. Under Article 5(2) of that directive, the application for entry and for residence is to be accompanied by documentary evidence proving that the conditions listed inter alia in Article 7 of the directive are complied with, which, under Article 7(1)(c) provides that the Member State concerned may require the person submitting the application to provide evidence that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, without recourse to the social assistance system of that Member State.42Article 16(2)(a) of Directive 2003/86 provides that Member States may withdraw the residence permit of a family member where it is shown that false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used.43It follows from the wording of that provision that Member States may, in principle, withdraw that permit where falsified documents were produced or where there has been recourse to fraud for the purpose of obtaining that permit. The provision does not identify the person who provided or used those documents or who committed the fraud, nor does it require that the family member concerned knew of it. It also follows from that wording that the mere use, for those purposes, of false information or falsified documents, inter alia to give the impression that the sponsor had stable, regular and sufficient resources, in accordance with Article 7(1)(c) of that directive, suffices to justify a decision to withdraw the residence permit of family members, without Article 16(2)(a) of Directive 2003/86 requiring it to be demonstrated that there was an intention to defraud on the part of those family members, or even that the latter knew of the false nature of that information or those documents.44That interpretation is corroborated by a contextual reading of Article 16(2)(a) of Directive 2003/86.45The grounds laid down in that provision for the withdrawal of a residence permit are identical to the grounds for the rejection of an application for entry and residence. Thus, that provision provides that the use of false or misleading information or of false or falsified documents, or recourse to fraud or other unlawful means, are grounds not only for the withdrawal of a residence permit that has been granted but also for the rejection of that application. Those grounds must therefore be interpreted in the same way in both those cases. However, as the Netherlands Government submits, the effectiveness of that same provision requires a Member State to be able to reject an application for entry and residence of a family member where false or falsified documents are produced in support of that application, even if that family member was not aware of the false or falsified nature of those documents.46Moreover, in a situation such as that at issue in the main proceedings, in which the sponsor has committed fraud, it is, having regard to the central importance of the sponsor in the system established by Directive 2003/86, in accordance with the objectives pursued by that directive and its underlying rationale, that that fraud has repercussions for the process of family reunification and, in particular, affects the residence permits granted to the members of the sponsor’s family, even if the latter did not know of the fraud committed.47It is apparent from recital 4 of Directive 2003/86, that that directive has the general objective of facilitating the integration of third-country nationals, namely the sponsors, in Member States by making family life possible through reunification (judgment of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 26). It follows from that objective and a reading of the whole of that directive, in particular Article 13(3) and Article 16(3) thereof, that, as long as the family members concerned have not acquired an autonomous right of residence on the basis of Article 15 of that directive, their right of residence is a right derived from that of the sponsor concerned and intended to assist the latter’s integration. In those circumstances, a Member State must be able to find that the fraud committed by the sponsor affects the process of family reunification as a whole, in particular the derived right of residence of the sponsor’s family members and, on that basis, withdraw the residence permits of those family members, even though they were unaware of the fraud that was committed. That is all the more so where, as in the present case, the fraud committed vitiates the regularity of the sponsor’s right of residence.48As regards that point, it should be added that, in accordance with Article 1 of Directive 2003/86, the purpose of that directive is to determine the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States. It follows that the right is confined to such nationals, which is confirmed by the definition of the concept of ‘family reunification’ in Article 2(d) of that directive. However, a third-country national who, like the father in the case in the main proceedings, has his residence permits withdrawn with retroactive effect, owing to the fact that they were acquired fraudulently, cannot be regarded as residing lawfully on the territory of a Member State. It is therefore, a priori, justified that such a national cannot benefit from that right and that the residence permits granted to the members of his family on the basis of that directive may be withdrawn.49In the present case, it is not contested, first, that a fraud was committed by the father, who produced falsified declarations of employment in order to show that he had stable and regular resources which were sufficient to maintain himself and the members of his family and, second, that those declarations were provided for the purpose of obtaining the residence permits of his family members, namely the mother and the son, even though they were unaware of the fraudulent nature of those declarations.50In those circumstances, it is clear from the interpretation of Article 16(2)(a) of Directive 2003/86, given in paragraph 43 of this judgment, that the fraud committed by the father and the use of false or falsified declarations of employment in order to show that the father had stable, regular and sufficient resources, within the meaning of Article 7(1)(c) of that directive, are a priori capable of justifying the withdrawal of those residence permits that were obtained by the mother and the son on the basis of that directive.51Nevertheless, as the Advocate General observed in points 27 and 28 of his opinion, the withdrawal of a residence permit pursuant to Article 16(2)(a) of Directive 2003/86 cannot occur automatically. It is clear from the use, in that provision, of the words ‘may … withdraw’ that Member States have a discretion as to that withdrawal. In that regard, in accordance with Article 17 of that directive, the Member State concerned must first examine, on a case-by-case basis, the situation of the family member concerned, by making a balanced and reasonable assessment of all the interests in play (see, to that effect, the judgments of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81, and of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 43).52Under that latter article, the Member State must take due account of the nature and solidity of that person’s family relationships, the duration of his residence in its territory and, as regards in particular the withdrawal of a right of residence, the existence of the person’s family, cultural or social ties with his country of origin.53Furthermore, as is clear from recital 2 of Directive 2003/86, the measures concerning family reunification, such as measures for the withdrawal of a residence permit issued to family members, must be adopted in conformity with fundamental rights, in particular the right to respect for private and family life guaranteed by Article 7 of the Charter, which contains rights corresponding to those protected by Article 8(1) of the ECHR (see, to that effect, the judgments of 4 March 2010, Chakroun, C‑578/08, EU:C:2010:117, paragraph 44, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 75 and 76). Therefore, while the Member State enjoys a certain discretion for the purposes of the assessment laid down in Article 17 of Directive 2003/86, that assessment must be conducted in compliance with Article 7 of the Charter.54Thus, in the present case, as the Advocate General observed in paragraph 32 of his opinion, the competent national authorities must take into account inter alia the duration of residence of the mother and the son in the Netherlands, the age at which the latter arrived in that Member State and the possibility that he has been brought up and received an education there, and whether the mother and the son have family, economic, cultural and social ties with and in that Member State. They must also take into account whether the mother and the son have such ties with and in their country of origin, which is to be assessed on the basis of such factors as, inter alia, a family circle present in that country, travel or periods of residence therein and the level of knowledge of the language of that country.55As the Advocate General observed in point 30 of his opinion, in their assessment those authorities must also take into consideration the fact that, in the present case, the mother and the son were not personally responsible for the fraud committed by the father and they had no knowledge of it.56It is for the referring court to verify whether the decisions at issue in the main proceedings, by which the State Secretary withdrew the residence permits of the mother and the son, are justified in the light of the considerations set out in paragraphs 51 to 55 above, or whether the latter must, having regard to those considerations, retain those residence permits.57Having regard to the foregoing considerations, the answer to the first question is that Article 16(2)(a) of Directive 2003/86 must be interpreted as meaning that, where falsified documents were produced for the issuing of residence permits to family members of a third-country national, the fact that those family members did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing those permits. In accordance with Article 17 of that directive, it is, however for the competent national authorities to carry out, beforehand, a case-by-case assessment of the situation of those family members, by making a balanced and reasonable assessment of all the interests in play. The second question 58By its second question, the referring court asks, in essence, whether Article 9(1)(a) of Directive 2003/109 must be interpreted as precluding a Member State from withdrawing the long-term resident status which was granted to third-country nationals in accordance with that directive, on the ground that the status was obtained by recourse to falsified documents, where those nationals were unaware of the fraudulent nature of those documents.59In order to answer that question, it should be recalled that, pursuant to Article 4(1) of Directive 2003/109, Member States are to grant long-term resident status to third-country nationals who have resided lawfully and continuously for five years on their territory. The acquisition of that status is not however automatic. In accordance with Article 7(1) of that directive, the third-country national concerned must, for that purpose, lodge an application with the competent national authorities of the Member State in which he resides, which must be accompanied by documentary evidence proving that he complies with the conditions laid down in Articles 4 and 5 of the directive. In particular, he must, in accordance with Article 5(1)(a) of the directive, demonstrate that he has stable and regular resources which are sufficient to maintain himself and the members of his family without recourse to the social assistance system of the Member State.60Article 8(1) of Directive 2003/109 provides that long-term resident status is to be permanent, subject to Article 9 of the directive.61In that regard, Article 9(1)(a) of the directive provides that the long-term resident loses the right to that status where that status is found to have been acquired fraudulently. That provision does not however identify the person who must have committed the fraud and does not require the resident concerned to have knowledge of it.62In accordance with the established case-law of the Court, individuals cannot rely fraudulently on EU law, since the principle of prohibition of fraud is a general principle of EU law which individuals must comply with (see, to that effect, judgments of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraphs 48 and 49, and of 11 July 2018, Commission v Belgique, C‑356/15, EU:C:2018:555, paragraph 99). The refusal or withdrawal of a right on account of abusive or fraudulent acts is simply the consequence of the finding that, in the event of fraud, the objective conditions required in order to obtain the right sought are not, in fact, met (see, to that effect, the judgment of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 32).63Furthermore, it is clear from recitals 2, 4, 6 and 12 of Directive 2003/109 that the objective of the directive is the integration of third-country nationals who are settled lawfully and on a long-term basis in the Member States (see, to that effect, judgments of 17 July 2014, Tahir, C‑469/13, EU:C:2014:2094, paragraph 32; of 4 June 2015, P and S, C‑579/13, EU:C:2015:369, paragraph 46; and of 2 September 2015, CGIL and INCA, C‑309/14, EU:C:2015:523, paragraph 21) and, for that purpose, bringing the rights of those nationals closer to those enjoyed by EU citizens, inter alia by establishing equal treatment with the latter in a wide range of economic and social fields. Thus, long-term resident status enables the person benefiting from it to enjoy equal treatment in the fields covered by Article 11 of Directive 2003/109, under the conditions laid down in that article. Under Article 14(1) of that directive, that status also affords the long-term resident the right to reside for a period exceeding three months on the territory of Member States other than the one which granted him that status, under the conditions set out in Chapter III of the directive, and to benefit there, in accordance with Article 21 of the same directive, from equal treatment as provided for in Article 11 thereof.64Having regard to the extensive rights attached to long-term resident status, it is important that Member States are able to combat fraud effectively by withdrawing from its beneficiary long-term resident status which was based on fraud.65It follows from the foregoing that it cannot be contended, in order to retain rights acquired under Directive 2003/109 by means of fraud, that that fraud was or was not committed by the beneficiary of those rights, or was not known to that person, since the decisive element is that the acquisition of those rights was the result of fraud.66It follows that Article 9(1)(a) of Directive 2003/109 applies in every case in which the acquisition of long-term resident status is based on fraud, that is to say where fraud is at the origin of that acquisition, whoever the person who committed that fraud might be and irrespective of whether the resident was aware of it.67In particular, that provision applies where, as in the case in the main proceedings, the resident concerned, for the purpose of obtaining long-term resident status, provided falsified documents with a view to proving that he had stable and regular resources which were sufficient to maintain himself and the members of his family, even if he did not commit the fraud and was unaware of the fraudulent nature of those documents. In such a case, the acquisition of that status rests directly on that fraud, such that it necessarily affects that status.68That interpretation is not called into question by the judgment of 18 December 2008, Altun (C‑337/07, EU:C:2008:744), referred to by the referring court.69In that case, the Court held that, from the time when the family members of a Turkish worker acquired an autonomous right of residence pursuant to the first paragraph of Article 7 of Decision No 1/80, that right could no longer be called into question on account of irregularities which, in the past, affected the right of residence of that worker and which, in that case, were irregularities arising from the latter’s fraudulent conduct (see, to that effect, the judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraphs 56, 57 and 59). Thus, the Court held in essence that the fraud affecting the Turkish worker’s right of residence could not affect the autonomous right of residence of his family members.70However, it must be observed that the facts of the case that gave rise to that judgment are different from those in the case in the main proceedings. In accordance with the first paragraph of Article 7 of Decision No 1/80, the family members of a Turkish worker obtain an autonomous right of residence after a period of residence of three years in the host Member State, without it being necessary to submit an application to that effect. Therefore, the Court did not rule on the consequences that use of falsified documents in support of such an application would have had for the rights of the persons concerned.71In the present case, it is clear from the order for reference that the decisions at issue in the main proceedings, by which the State Secretary withdrew the mother’s and the son’s long-term residence permits, were specifically based on the fact, in particular, that the fraudulent declarations of employment of the father were produced in support of the application by the mother and the son seeking to obtain long-term resident status, in order to give the impression that they had stable, regular and sufficient resources, in circumstances where the acquisition of such a status was only possible, as is set out in paragraph 59 above, following such an application.72It follows from the foregoing that, pursuant to Article 9(1)(a) of Directive 2003/109, a third-country national loses the long-term resident status provided for by that directive where it is established that the acquisition of that status was based on falsified documents, even if that national was unaware of the fraudulent nature of those documents.73While that is so, the loss of long-term resident status does not mean, in itself, that the person concerned also loses the right of residence in the host Member State on the basis of which he lodged his application to be granted that status pursuant to Article 7(1) of Directive 2003/109 and obtained it pursuant to Article 4(1) of that directive, whether that right of residence was acquired under national law or EU law. That loss of status also does not therefore have the automatic consequence of removal from the territory of that Member State, as is clear from Article 9(7) of Directive 2003/109. In a situation where, as in the case in the main proceedings, the persons concerned, namely the mother and the son, have obtained long-term resident status on the basis of a right of residence granted pursuant to Directive 2003/86, it is for the referring court, as set out in paragraph 56 above, to determine whether those persons must, in accordance with Article 17 of that directive, retain the residence permit that was issued to them under the directive.74Having regard to the foregoing considerations, the answer to the second question is that Article 9(1)(a) of Directive 2003/109 must be interpreted as meaning that, where long-term resident status has been granted to third-country nationals on the basis of falsified documents, the fact that those nationals did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing that status. Costs 75Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Fourth Chamber) hereby rules: 1. Article 16(2)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, where falsified documents were produced for the issuing of residence permits to family members of a third-country national, the fact that those family members did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing those permits. In accordance with Article 17 of that directive, it is however for the competent national authorities to carry out, beforehand, a case-by-case assessment of the situation of those family members, by making a balanced and reasonable assessment of all the interests in play. 2. Article 9(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, must be interpreted as meaning that, where long-term resident status has been granted to third-country nationals on the basis of falsified documents, the fact that those nationals did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing that status. [Signatures]( *1 ) Language of the case: Dutch. | 4cd9e-18def35-43d4 | EN |
The Court dismisses the Commission’s action against the Czech Republic concerning its refusal to ensure the take-back of 20 000 tonnes of a mixture called TPS-NOLO (Geobal) shipped to Poland from the Czech Republic | 14 March 2019 ( *1 )(Failure of a Member State to fulfil obligations — Regulation (EC) No 1013/2006 — Shipment of waste — Refusal of the Czech Republic to ensure the take-back of the mixture TPS-NOLO (Geobal) shipped from that Member State to Poland — Existence of waste — Burden of proof — Proof)In Case C‑399/17,ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 3 July 2017, European Commission, represented by P. Němečková, E. Sanfrutos Cano and L. Haasbeek, acting as Agents,applicant,v Czech Republic, represented by M. Smolek, J. Vláčil, T. Müller and L. Dvořáková, acting as Agents,defendant,THE COURT (First Chamber),composed of R. Silva de Lapuerta, Vice-President of the Court, acting as President of the First Chamber, J.-C. Bonichot (Rapporteur), A. Arabadjiev, E. Regan and S. Rodin, Judges,Advocate General: N. Wahl,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 20 September 2018,after hearing the Opinion of the Advocate General at the sitting on 15 November 2018,gives the following Judgment 1By its action, the European Commission asks the Court to declare that, by refusing to ensure the take-back to the Czech Republic of the mixture TPS-NOLO or Geobal (‘TPS-NOLO (Geobal)’) shipped from the Czech Republic to Katowice (Poland), the Czech Republic has failed to fulfil its obligations under Article 24(2) and Article 28(1) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1). Legal context Regulation No 1013/2006 2Under Article 1 of Regulation No 1013/2006, entitled ‘Scope’:‘1. This Regulation establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination.…’3Article 2 of that regulation provides as follows:‘For the purposes of this Regulation:1.“waste” is as defined in Article 1(1)(a) of Directive 2006/12/EC [of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9), replaced, with effect from 12 December 2010, by Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3), Article 3 of which reproduces, in essence, the definition of “waste” given by Directive 2006/12].…19.“competent authority of dispatch” means the competent authority for the area from which the shipment is planned to be initiated or is initiated;20.“competent authority of destination” means the competent authority for the area to which the shipment is planned or takes place …;22.“country of dispatch” means any country from which a shipment of waste is planned to be initiated or is initiated;23.“country of destination” means any country to which a shipment of waste is planned or takes place …;35.“illegal shipment” means any shipment of waste effected:(a)without notification to all competent authorities concerned pursuant to this Regulation; or(g)which, in relation to shipments of waste as referred to in Article 3(2) and (4), has resulted from:(iii)the shipment being effected in a way which is not specified materially in the document set out in Annex VII.4Under Article 3(1) and (2) of that regulation, cross-border shipments within the European Union are, depending on the nature of the waste and its intended treatment and when the amount of waste exceeds 20 kg, subject to a procedure of notification to the competent authorities or of providing information to those authorities.5Article 24(1) and (2) of that regulation provides:‘1. Where a competent authority discovers a shipment that it considers to be an illegal shipment, it shall immediately inform the other competent authorities concerned.2. If an illegal shipment is the responsibility of the notifier, the competent authority of dispatch shall ensure that the waste in question is:taken back by the notifier de facto; or, if no notification has been submitted;(b)taken back by the notifier de jure; or, if impracticable;(c)taken back by the competent authority of dispatch itself or by a natural or legal person on its behalf; or, if impracticable;(d)alternatively recovered or disposed of in the country of destination or dispatch by the competent authority of dispatch itself or by a natural or legal person on its behalf; or, if impracticable;(e)alternatively recovered or disposed of in another country by the competent authority of dispatch itself or by a natural or legal person on its behalf if all the competent authorities concerned agree.This take-back, recovery or disposal shall take place within 30 days, or such other period as may be agreed between the competent authorities concerned after the competent authority of dispatch becomes aware of or has been advised in writing by the competent authorities of destination or transit of the illegal shipment and informed of the reason(s) therefor. Such advice may result from information submitted to the competent authorities of destination or transit, inter alia, by other competent authorities.In cases of take-back as referred to in (a), (b) and (c), a new notification shall be submitted, unless the competent authorities concerned agree that a duly reasoned request by the initial competent authority of dispatch is sufficient.The new notification shall be submitted by the person or authority listed in (a), (b) or (c) and in accordance with that order.No competent authority shall oppose or object to the return of waste of an illegal shipment. In the case of alternative arrangements as referred to in (d) and (e) by the competent authority of dispatch, a new notification shall be submitted by the initial competent authority of dispatch or by a natural or legal person on its behalf unless the competent authorities concerned agree that a duly reasoned request by that authority is sufficient.’6According to Article 28 of the regulation:‘1. If the competent authorities of dispatch and of destination cannot agree on the classification as regards the distinction between waste and non-waste, the subject matter shall be treated as if it were waste. This shall be without prejudice to the right of the country of destination to deal with the shipped material in accordance with its national legislation, following arrival of the shipped material and where such legislation is in accordance with Community or international law.2. If the competent authorities of dispatch and of destination cannot agree on the classification of the notified waste as being listed in Annex III, IIIA, IIIB or IV, the waste shall be regarded as listed in Annex IV.3. If the competent authorities of dispatch and destination cannot agree on the classification of the waste treatment operation notified as being recovery or disposal, the provisions regarding disposal shall apply.4. Paragraphs 1 to 3 shall apply only for the purposes of this Regulation, and shall be without prejudice to rights of interested parties to resolve any dispute related to these questions before a court of law or tribunal.’7Entry A3190 of list A in part 1 of Annex V to Regulation No 1013/2006 is defined as follows:‘Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’. Directive 2006/12 8Recital 2 of Directive 2006/12 states:‘The essential objective of all provisions relating to waste management should be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste.’9Article 1(1)(a) of that directive defines ‘waste’ as ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’. Directive 2008/98 10Article 3 of Directive 2008/98 provides:‘For the purposes of this Directive, the following definitions shall apply:“waste” means any substance or object which the holder discards or intends or is required to discard;11Article 6(1) of that directive provides:‘Certain specified waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions:the substance or object is commonly used for specific purposes;a market or demand exists for such a substance or object;the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; andthe use of the substance or object will not lead to overall adverse environmental or human health impacts.The criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object.’ The REACH Regulation 12According to Article 2(2) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1), as amended by Commission Regulation (EU) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 353, p. 1) (‘the REACH Regulation’):‘Waste as defined in Directive 2006/12/EC … is not a substance, mixture or article within the meaning of Article 3 of this Regulation.’13Article 128 of the REACH Regulation provides:‘1. Subject to paragraph 2, Member States shall not prohibit, restrict or impede the manufacturing, import, placing on the market or use of a substance, on its own, in a mixture or in an article, falling within the scope of this Regulation, which complies with this Regulation and, where appropriate, with Community acts adopted in implementation of this Regulation.2. Nothing in this Regulation shall prevent Member States from maintaining or laying down national rules to protect workers, human health and the environment applying in cases where this Regulation does not harmonise the requirements on manufacture, placing on the market or use.’ Pre-litigation procedure and the proceedings before the Court 14At the end of 2010 and the beginning of 2011 a Czech operator shipped from Litvínov (Czech Republic) to Katowice (Poland) approximately 20000 tonnes of TPS-NOLO (Geobal), a mixture composed of tar acid derived from petroleum refining, carbon dust and calcium oxide.15The mixture was deposited, in whole or in part, on a plot of land rented by the Polish importer in ulici Karola Woźniaka (Karol Woźniak Street), Katowice.16On 11 September 2011, the Polish authorities informed the Czech Ministry of the Environment that they considered the shipment to be an illegal shipment of waste within the meaning of Article 2(35)(a) of Regulation No 1013/2006, since neither the sender nor the recipient of that waste had notified the shipment to the authorities responsible for the protection of the environment.17In January 2012 the Czech Ministry of the Environment replied to the Polish authorities, stating that, as the TPS-NOLO (Geobal) was registered under the REACH Regulation, it did not consider it to be waste and that, as a result, it refused to order the Czech sender of the mixture at issue to ensure its take-back.18Having received, on 4 February 2014, a complaint from an environmental association concerning that shipment, the Commission opened an investigation on 12 June 2014.19On 27 November 2014 the Commission sent a letter of formal notice to the Czech Republic, to which that Member State replied on 20 February 2015, claiming that the TPS-NOLO (Geobal) was not waste.20On 22 October 2015 the Commission sent a reasoned opinion to the Czech Republic, to which the Czech Republic replied on 18 December 2015, confirming its refusal to ensure the shipment back to the Czech Republic of the mixture at issue.21The Commission, having found that the Czech Republic refused to comply with its reasoned opinion, decided to bring the present action. The request for the oral procedure to be reopened 22Following the delivery of the Advocate General’s Opinion, the Commission requested, by letter of 23 November 2018, that the oral procedure be reopened in accordance with Article 83 of the Rules of Procedure of the Court, on the ground that the reasons on which the Advocate General relied in concluding that the action should be dismissed as inadmissible had not been debated between the parties during either the written procedure or the oral procedure.23It should be borne in mind that, according to Article 83 of the Rules of Procedure, the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.24The Court considers, having heard the Advocate General, that it has all the material necessary for it to rule on the matter before it and that the case does not have to be examined in the light of an argument that has not been the subject of discussion before it.25Accordingly, the request for the reopening of the oral procedure made by the Commission must be refused. The action Arguments of the parties 26The Commission claims that the Czech Republic refused, in violation of Article 24 of Regulation No 1013/2006, to accede to the request of the Polish authorities to take back the mixture at issue, which it claims was illegally shipped to Poland.27According to the Commission, the TPS-NOLO (Geobal) should be classified as ‘waste’.28In the first place, the mixture was produced from waste from earlier refining activity on the Ostrava site (Czech Republic).29In the second place, the tar acid from which TPS-NOLO (Geobal) originates, like the mixture itself, constitutes hazardous waste.30In the third place, in the Czech Republic, as in Poland, the mixture at issue is considered to be waste. The Commission claims that the Czech Republic does not contest that statement of fact in so far as it is concerned. Indeed, the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) held, in a decision of 3 December 2015, that the substance ‘Geobal’ was classified as waste. In addition, the decision concerning amendment No 20 of the integrated permit for the Litvínov landfill facility referred to the substance ‘Geobal 4’ as waste.31In the fourth place, that substance did not cease to be waste on account of its registration under the REACH Regulation. First, waste is excluded from the scope of that regulation under Article 2(2). Therefore, Article 128 of the REACH Regulation, which prohibits, inter alia, any restriction of the free movement of substances within the scope of that regulation, does not apply to a substance originally classified as waste as long as that substance has not ceased to be waste. Second, registration under that regulation is only one of the factors that may be relevant for the purpose of determining whether a substance has ceased to be waste, as the Court ruled in the judgment of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri (C‑358/11, EU:C:2013:142). Lastly, under Article 20(2) of the REACH Regulation, the European Chemicals Agency (ECHA) has the power to check only the completeness of registration dossiers, that check not including an assessment of the quality or the adequacy of any data submitted.32In the fifth place, the holder’s intention is not the only determining factor for classifying a material as waste. As the Court held in the judgment of 15 June 2000, ARCO Chemie Nederland and Others (C‑418/97 and C‑419/97, EU:C:2000:318, paragraph 88), whether a substance is waste must be determined in the light of all the circumstances of each individual case and the concept of waste cannot be interpreted restrictively. The composition of a material and the danger it presents to the environment and to human health are important factors when determining whether or not it constitutes waste.33In the sixth place, according to the judgments of 28 March 1990, Vessoso and Zanetti (C‑206/88 and C‑207/88, EU:C:1990:145, paragraph 11), and of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 31 and the case-law cited), the possibility of economic reutilisation does not exclude a substance from the definition of waste. Moreover, the economic interest of the mixture at issue has not been established and cannot be deduced from the consignment agreement entered into. That agreement does not prove the existence of a demand in Poland for the material at issue as fuel for cement works since the purchaser did not sell the stored mixture in Poland in accordance with the contractual conditions. Given the reduction in the quantity of the mixture present on the site in question, which was noted by the Polish inspectors, a part of it has probably already been re-exported.34In any case, it is clear from the very wording of Article 28 of Regulation No 1013/2006 that, if the Czech and Polish authorities cannot agree, the mixture at issue must be treated as if it were waste. The Polish authorities were right to conclude, on the basis of the laboratory tests they carried out, that the mixture at issue was waste under Annex IV to that regulation and under Polish legislation.35In its defence, the Czech Republic submits that the Member States cannot make discretionary use of Article 28 of Regulation No 1013/2006. That provision can be applied only when a Member State has confirmed doubts as to whether the material in question is waste. If a Member State were able to rely on Article 28 of that regulation without any evidence, the freedom of movement would be seriously adversely affected. That interpretation is confirmed by judgment of 9 June 2016, Nutrivet (C‑69/15, EU:C:2016:425). Yet the Commission provides no evidence that the mixture at issue is waste, within the meaning of Article 3(1) of Directive 2008/98.36It follows from the definition of ‘waste’ under Article 3(1) of Directive 2008/98 and the Court’s case-law (judgments of 18 December 1997, Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraph 26, and of 15 June 2000, ARCO Chemie Nederland and Others, C‑418/97 and C‑419/97, EU:C:2000:318, paragraphs 57 and 97) that, for the purpose of classifying a material as waste, it is the way in which the holder intends to deal with it that matters, with the result that the same material might or might not be classified as waste. As a result, for the purpose of classifying a material as waste, the composition of the material alone is not conclusive. Therefore, the laboratory tests carried out by the Polish authorities are not relevant for the purpose of classifying the mixture at issue.37The Commission cannot rely on the fact that the Czech Republic did not submit a national decision that the mixture at issue had ceased to be waste. The Commission’s argument is based on Article 6 of Directive 2008/98 which does not apply ratione temporis to that mixture. The transposition deadline for that Directive expired on 12 December 2010, while the mixture was produced before that date.38Indeed, the mixture at issue was never classified as waste. The Commission’s claim that the mixture was considered waste in the Czech Republic is unsubstantiated. In fact, the integrated permit for the plants in which that mixture was produced indicates clearly that the processing provided for aims to produce a fuel product. The demand for that fuel product existed not only in the Czech Republic but also in Poland.39In particular, it is clear that, at the date of the shipment at issue, the mixture in question was not waste. In the first place, the holder did not intend to discard it, as is demonstrated by the registration of the mixture as a fuel under the REACH Regulation before it was exported to Poland. In accordance with the judgment of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri (C‑358/11, EU:C:2013:142), the registration of the mixture under the REACH Regulation should be taken into account as a factor establishing the holder’s intention to use that mixture not as waste but for economic purposes.40In the second place, the exportation of the mixture to Poland was done on the basis of a consignment agreement concluded with a Polish undertaking established in Sosnowiec (Poland) for the purpose of cement production. The Commission’s assertion that the mixture had probably been re-exported is entirely unsubstantiated. The fine imposed on the Polish purchasers and the finding by the Polish authorities of a substantial reduction in the volume of that mixture establishes, rather, that the mixture at issue found a use, in Poland, consistent with the initial intention.41The lack of possibilities at present for the use of that mixture in Poland, according to the information provided by the Polish authorities, is in no way relevant for the purpose of assessing whether, when it was exported, the mixture constituted waste. Indeed, the use of a substance registered under the REACH Regulation is not limited to the territory of a single Member State.42The Commission presents no evidence that the mixture shipped had not been used in accordance with the agreement concluded and that it had been re-exported.43The Commission thus provides no evidence that the mixture at issue was, at the time of the facts, waste within the meaning of Article 3(1) of Directive 2008/98. Consequently, it has failed to discharge its burden of proof in the context of infringement proceedings. Findings of the Court 44Regulation No 1013/2006 establishes procedures and control regimes for the shipment of waste, inter alia, between the Member States of the European Union.45Article 3(1) of Regulation No 1013/2006 makes shipments within the EU of all waste destined for disposal operations and many types of waste destined for recovery operations, particularly those listed in Annex IV to that regulation, subject to a procedure of prior written notification and consent. Under Article 3(2) of that regulation, other shipments of waste are to be accompanied by information by means of the completion of the form in Annex VII to the regulation, unless they concern small quantities not exceeding 20 kg.46Article 2(35)(a) and (g) of Regulation No 1013/2006 classifies as an ‘illegal shipment’, inter alia, a shipment of waste effected without the appropriate notification or information.47In the event of a shipment that is illegal on the grounds set out above, Article 24(2) of Regulation No 1013/2006 provides that the authority responsible for the execution of that regulation in the Member State of origin of the waste, referred to as ‘the competent authority of dispatch’, must ensure that, normally within 30 days from the day it is notified, the waste is taken back by the ‘notifier de jure’, namely the person on whom the obligation to notify or inform falls, or, failing that, must have the waste taken back or take it back itself.48In the present case, the shipment between late 2010 and the early 2011 of 20000 tonnes of TPS-NOLO (Geobal) from the Czech Republic to Poland was the subject of neither notification nor information. When, in September 2011, the Polish authorities reported that shipment to the Czech Ministry of the Environment, the Ministry refused to order the Czech sender to take back the mixture at issue in Poland, claiming that it was not waste. It is the persistence of this refusal which led the Commission to open proceedings for failure to fulfil obligations and subsequently to bring an action before the Court.49The Commission states that, under Article 28 of Regulation No 1013/2006, the subject matter of a shipment is presumed to be waste when the competent authorities of dispatch and of destination do not agree on whether or not the object of the shipment should be classified as waste, as in the present case. Thus, the shipment of the mixture at issue in the present case should be considered a shipment of waste which, since the formalities noted in paragraph 4 above were not completed, was illegal. In those circumstances, the Commission considers that the Czech Republic, having received a request to that effect from the Polish authorities, was required to ensure the take-back of the waste in accordance with the very wording of Article 24(2) of Regulation No 1013/2006. The Commission asks the Court to declare that the Czech Republic failed to fulfil its obligations by refusing to do this.50According to the Czech Republic, the Commission has adduced no evidence that the mixture at issue is waste. The burden of proof 51In the context of proceedings for failure to fulfil obligations, in accordance with the Court’s settled case-law, it is for the Commission to establish the existence of the alleged failure (judgments of 25 May 1982, Commission v Netherlands, 97/81, EU:C:1982:193, paragraph 6, and of 11 July 2018, Commission v Belgium, C‑356/15, EU:C:2018:555, paragraph 25). It is the Commission’s responsibility to place before the Court the information required to enable it to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (judgments of 10 June 2010, Commission v Portugal, C‑37/09, not published, EU:C:2010:331, paragraph 28; of 22 September 2011, Commission v Spain, C‑90/10, not published, EU:C:2011:606, paragraph 47; and of 13 February 2014, Commission v United Kingdom, C‑530/11, EU:C:2014:67, paragraph 60).52In the present case, if the mixture at issue is not waste, Regulation No 1013/2006 does not apply to its shipment from the Czech Republic to Poland and the Commission cannot claim infringement of that regulation by the first of those Member States. Consequently, the mixture must be classified as waste in order for a failure to be found on the basis of Article 24(2) of that regulation, and such classification is, therefore, among the matters subject to review by the Court in the present case.53Since, in accordance with the case-law referred to in paragraph 51 above, the Commission may not rely on any presumption in order to provide evidence of a failure to fulfil obligations, it cannot merely rely on the presumption set out in Article 28(1) of Regulation No 1013/2006 or claim to rely on the mere acknowledgement of disagreement between the competent authorities of dispatch and destination as regards the classification of the mixture at issue as waste for the purpose of establishing that it is indeed waste.54It follows from the foregoing that the Commission is wrong to claim that it is not its responsibility to provide proof that the mixture at issue should be classified as ‘waste’ for the purpose of the present procedure for failure to fulfil obligations. Proof of the failure 55Since it is common ground that none of the formalities required for a shipment of waste were complied with in respect of the shipment of the mixture at issue, that shipment must be considered to have been effected as an illegal shipment, within the meaning of Article 2(35) of Regulation No 1013/2006, provided that the mixture may be classified as waste. In that case, the competent authority of dispatch would have to ensure its take-back, at the request of the Polish authorities, in accordance with Article 24(2) of that regulation. It is true that an exception should be made for the situation provided for in Article 24(2)(d) of that regulation in which take-back is impossible, but none of the parties claim such impossibility. In those circumstances, the classification of the mixture as waste is decisive for the purpose of establishing the existence of the alleged failure.56Under Article 2(1) of Regulation No 1013/2006, the definition of the term ‘waste’, for the purposes of that regulation, is that which is set out in Article 1(1)(a) of Directive 2006/12 as follows: ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’. As it is expressly non-exhaustive, the list of categories of waste in Annex I to that directive is principally illustrative (judgment of 12 December 2013, Shell Nederland and Belgian Shell, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 35).57Directive 2008/98, which replaced Directive 2006/12, reproduced that definition, in essence, in Article 3(1) thereof. However, it should be noted that the applicability of that directive to the present dispute is not clear from the documents in the case file. The parties have provided no evidence as to establish that that directive had been transposed into Czech law at the date the shipment at issue took place, which the parties agree, without giving further detail, was in late 2010 or early 2011. Yet, as the Commission acknowledged at the hearing, it is the date of the shipment that should be used for the purpose of classifying the mixture at issue as waste or not, since it is at that date that the lawfulness of the shipment must be assessed.58As is clear from the definition set out above, classification as ‘waste’ is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, judgments of 24 June 2008, Commune de Mesquer, C‑188/07, EU:C:2008:359, paragraph 53, and of 18 December 2007, Commission v Italy, C‑263/05, EU:C:2007:808, paragraph 32).59As regards the meaning of the term ‘discard’, it follows from the Court’s case-law that that term must be interpreted in the light of the aim of Directive 2006/12, which, in the words of recital 2 of the directive, consists in the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, having regard to Article 191(2) TFEU, which provides that EU policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken. It follows that the term ‘discard’, and therefore the concept of ‘waste’ within the meaning of Article 1(1)(a) of Directive 2006/12, cannot be interpreted restrictively (judgment of 12 December 2013, Shell Nederland and Belgian Shell, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 38 and the case-law cited).60Moreover, the Court has held that the existence of ‘waste’ within the meaning of Directive 2006/12 must be determined in the light of all the circumstances, regard being had to the aim of that directive and the need to ensure that its effectiveness is not undermined (judgment of 12 December 2013, Shell Nederland and Belgian Shell, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 40 and the case-law cited).61In the present case, two preliminary observations should be made before examining the evidence submitted by the Commission. First, as regards the assessment of whether or not the mixture that was shipped was waste, the relevant circumstances in the light of which that assessment should be made are those existing at the date of the shipment, and not the circumstances before or after that date. Second, having considered that it was the responsibility of the Czech Republic to prove that the TPS-NOLO (Geobal) was not waste, the Commission undertook in its written pleadings less to provide proof itself that that substance is waste than to reply to the arguments put forward by the defendant Member State during the infringement proceedings, with a view to rebutting them.62Among the facts that the Commission presents as capable of establishing that the mixture at issue is waste is, in the first place, the fact that TPS-NOLO (Geobal) is produced from waste originating from an earlier refining activity on the Ostrava site.63That point was confirmed, at the hearing before the Court, by the Czech Republic, which also acknowledged that the tar acid — the principal component of the mixture — was derived from former oil-refining activities on the Ostrava site and corresponds to ‘waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’ in entry A3190 in List A in Part 1 of Annex V to Regulation No 1013/2006. Nevertheless, that Member State submits that, by mixing it with carbon dust and calcium oxide to form TPS-NOLO (Geobal), that tar underwent a transformation which meant it ceased to be waste and was capable of being used as fuel in cement works.64However, the fact that a substance is the result of a waste recovery operation is only one of the factors which should be taken into consideration for the purpose of determining whether that substance is still waste and does not as such permit a definitive conclusion to be drawn in that regard (judgments of 15 June 2000, ARCO Chemie Nederland and Others, C‑418/97 and C‑419/97, EU:C:2000:318, paragraph 97, and of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri, C‑358/11, EU:C:2013:142, paragraph 58). As a result, the mere fact that TPS-NOLO (Geobal) is produced from waste does not constitute a basis for finding that it, itself, is waste.65In the second place, the Commission draws attention to the hazardous nature of the tar acid from which TPS-NOLO (Geobal) is derived and of the mixture itself.66It should be noted, at the outset, that the concept of waste does not turn on the hazardous nature of a substance (judgment of 18 April 2002, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus, C‑9/00, EU:C:2002:232, paragraph 48). As regards the conclusions to be drawn from the alleged hazardous nature of the tar acid in question, EU law does not, as a matter of principle, exclude the possibility that waste regarded as hazardous may cease to be waste if an operation enables it to be made usable without endangering human health or harming the environment and, also, if it is not found that the holder of the object at issue discards it or intends to discard it (judgment of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri, C‑358/11, EU:C:2013:142, paragraph 60).67As regards the Commission’s allegation that TPS-NOLO (Geobal) itself is a hazardous waste, that institution notes that a fine was imposed by a Polish court on one of the purchasers of that mixture on account of it being hazardous waste. However, an argument based on the classification as waste of a substance other than that at issue and in circumstances which are not specified is limited. As regards the mixture at issue, the Czech Republic acknowledged at the hearing that the unused quantity that has remained on the Katowice site for several years in storage conditions that have a negative impact on the environment and on public health should probably be considered waste. However, as has been stated in paragraph 61 above and as the Czech Republic maintains, the present circumstances are not relevant in the assessment of whether the mixture was waste at the date it was shipped.68In the third place, the Commission claims that TPS-NOLO (Geobal) is considered waste both in the Czech Republic and in Poland.69The Czech Republic disputes that assertion as regards itself. According to the Czech Republic, the Nejvyšší správní soud (Supreme Administrative Court), in its judgment of 3 December 2015, which is cited by the Commission as evidence that TPS-NOLO (Geobal) is classified as waste in the Czech Republic, did not take a position on that point but merely reported, in the summary of the parties’ observations, that the parties had classified that mixture as waste.70In support of its argument, the Commission also refers to amendment No 20 of the integrated permit for the Litvínov plant, which is where the mixture at issue was stored before being shipped to Poland. It notes that that decision identifies ‘Geobal 4’ as waste. However, the similarity between the names of those substances is insufficient to establish that ‘Geobal 4’ and the mixture at issue are the same. In addition, as was noted in paragraph 60 above, whether or not a substance is waste must be assessed in the light of the specific circumstances of each case.71As regards the classification of TPS-NOLO (Geobal) in Polish law, it should be noted that the Polish Government participated in neither the written procedure nor the oral procedure, and that its position is known by the Court only as a result of two letters, of 21 July 2015 and 11 May 2016, sent by the Republic of Poland to the Commission and included in the file submitted to the Court by the latter. It is clear from those letters that in Poland the mixture was considered at those dates to be waste, the use of which as fuel was prohibited. However, the Czech Republic asserted at the hearing, without being contradicted, that the use of that mixture as fuel in cement works was prohibited in Poland only from May 2011, that is, after the shipment at issue. Indeed, the consignment agreement concluded appears to confirm that, at the time it was signed in December 2010, TPS-NOLO (Geobal) had, according to the Polish importer in question, an economic use and value in Poland.72In the fourth place, the Commission claims that it cannot be inferred from its registration under the REACH Regulation before its shipment that the mixture at issue had ceased to be waste.73It should be borne in mind, in that regard, that according to Article 2(2) of that regulation waste is not a substance, a mixture or article within the meaning of Article 3 of the regulation. It is true that, as the Commission submits, the mixture at issue may have been wrongly registered under the REACH Regulation in disregard of its classification as waste. However, such a hypothesis cannot be taken to demonstrate that the mixture is waste. While not permitting a definitive conclusion to the contrary, the registration of a substance under the REACH Regulation is, nevertheless, relevant for the purpose of determining whether that substance has ceased to be waste (see, to that effect, judgment of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri, C‑358/11, EU:C:2013:142, paragraphs 63 and 64).74In the fifth place, the Commission emphasises the composition of the mixture at issue and the danger it poses to the environment and human health. In that regard it should be noted, first of all, that the analyses of the mixture that the Commission relies on, without producing them, were carried out by the Polish authorities ex parte and the Czech Republic is unable to obtain a second opinion given that the mixture is on Polish territory. In addition, as is clear from the definition of waste, a substance is waste not by nature, but as a result of the intention or obligation of its holder to discard it, that is to say, by the will of the holder or of the legislature. It follows that the chemical composition of the substance at issue at most may give an indication as to whether it is waste (see, to that effect, judgment of 7 September 2004, Van de Walle and Others, C‑1/03, EU:C:2004:490, paragraph 42). Lastly, the risks a substance poses to the environment or human health have no decisive influence on its classification as waste (see, to that effect, judgment of 15 June 2000, ARCO Chemie Nederland and Others, C‑418/97 and C‑419/97, EU:C:2000:318, paragraph 66).75In the sixth place, the Commission claims that, even if TPS-NOLO (Geobal) may be reused for economic gain, such a fact does not exclude it from being waste (see, to that effect, judgments of 28 March 1990, Vessoso and Zanetti, C‑206/88 and C‑207/88, EU:C:1990:145, paragraph 13, and of 18 December 1997, Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraph 31). However, that argument cannot, conversely, be regarded as determinative or even indicative of the mixture at issue being waste.76In addition, the Commission contests the economic utility of the mixture at issue. It infers from the reduction of the quantity of the mixture present on the site in question, as noted by the Polish inspectors, that the buyer had not sold the mixture in Poland, as stipulated in the contract, and that part of it had been re-exported. It concludes from this that there was no demand for the mixture as fuel for cement works in that Member State.77According to the information provided by the Polish authorities, the quantity of TPS-NOLO (Geobal) at Katowice in 2016 was only about 6000 tonnes out of the 20000 tonnes of that mixture shipped in 2011. Nevertheless, it seems difficult to infer from that finding alone that the sale on consignment of the mixture at issue was not carried out and a part of that mixture was re-exported. As the Czech Republic suggests, the reduction of the quantity of the mixture present on the site in question could equally be explained by its having been used as fuel in Polish cement works, in accordance with its intended use, while that use was permitted. In any case, the Commission’s contentions in that regard lack any supporting evidence.78It follows from all the foregoing that the Commission cannot be considered to have proven to the requisite legal standard that the mixture at issue was waste within the meaning of Directive 2006/12. As a result, it has failed to establish that the shipment of that mixture from the Czech Republic to Poland in late 2010 or early 2011 constituted, at the time it took place, a shipment of waste within the meaning of Regulation No 1013/2006 and, as a result, that the Czech Republic failed to fulfil its obligations under Article 24(2) in conjunction with Article 28(1) of that Regulation. The Commission’s action must therefore be dismissed. Costs 79Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Czech Republic has applied for costs and the Commission has been unsuccessful, the Commission must be ordered to pay the costs.On those grounds, the Court (First Chamber) hereby: 1. Dismisses the action; 2. Orders the European Commission to pay the costs. [Signatures]( *1 ) Language of the case: Czech. | 46a4e-604a83f-4180 | EN |
The Hungarian legislation excluding the retroactive cancellation of a loan contract denominated in a foreign currency which includes an unfair term relating to the exchange-rate risk is contrary to EU law | 14 March 2019 ( *1 )(Reference for a preliminary ruling — Consumer protection — Unfair terms in consumer contracts — Directive 93/13/EEC — Article 1(2) — Article 6(1) — Loan contract denominated in a foreign currency — Exchange difference — Substitution of a legislative provision for an unfair term declared void — Exchange rate risk — Continued existence of the contract after the unfair term has been deleted — National system for a uniform interpretation of law)In Case C‑118/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Budai Központi Kerületi Bíróság (Central District Court, Buda, Hungary), made by decision of 9 January 2017, received at the Court on 7 March 2017, in the proceedings Zsuzsanna Dunai v ERSTE Bank Hungary Zrt, THE COURT (Third Chamber),composed of A. Prechal (Rapporteur), President of the Chamber, F. Biltgen, J. Malenovský, C.G. Fernlund and L.S. Rossi, Judges,Advocate General: N. Wahl,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:–ERSTE Bank Hungary Zrt, by T. Kende, ügyvéd,the Hungarian Government, by M.Z. Fehér, acting as Agent,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by A. Tokár and A. Cleenewerck de Crayencour, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 15 November 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of point 3 of the operative part of the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), of the powers conferred on the European Union in order to ensure a high level of consumer protection and the fundamental EU principles of equality before the law, non-discrimination, the right to an effective judicial remedy and the right to fair legal process.2The request has been made in the course of proceedings between Mrs Zsuzsanna Dunai and ERSTE Bank Hungary Zrt (‘the bank’) concerning the allegedly unfair contractual term providing that the exchange rate applicable at the time of the advance of a loan denominated in a foreign currency is based on the buying rate practiced by the bank whereas the exchange rate applicable at the time it is paid off is based on the selling rate. Legal context European Union law Directive 93/13/EEC 3Under the 13th and 21st recitals of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29):‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established;…Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions’.4Article 1(2) of that directive provides:‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’5Article 3(1) of Directive 93/13 provides:‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’6Under Article 4 of that directive:‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’7Article 6(1) of that directive states:‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’8According to Article 7(1) of Directive 93/13:‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’ Hungarian law The Basic Law 9Paragraph 25(3) of the Alaptörvény (Basic Law) states:‘The Kúria [(Supreme Court, Hungary)] shall ensure … the standardised application of the law by the courts and shall adopt decisions with a view to ensuring consistent interpretation of the law which shall be binding on those courts.’ The DH 1 Law 10Under Paragraph 1(1) of the Kúriának a pénzügyi intézmények fogyasztói kölcsönszerződéseire vonatkozó jogegységi határozatával kapcsolatos egyes kérdések rendezéséről szóló 2014. évi XXXVIII. Törvény (Law No XXXVIII of 2014 on the resolution of certain issues relating to the decision adopted by the Kúria [(Supreme Court)] with a view to ensuring consistent interpretation of the provisions of civil law concerning loan contracts concluded by credit establishments) (‘the DH 1 Law’):‘The present law shall apply to loan contracts concluded with consumers between 1 May 2004 and the date of entry into force of the present law. For the purposes of the present law, loan contracts concluded with consumers shall cover any foreign exchange based (linked to, or denominated in, a foreign currency and repaid in forint) or forint based credit or loan agreement, or any financial leasing agreement, concluded between a financial institution and a consumer, if it incorporates standard contract terms or any contract term which has not been individually negotiated, containing a clause provided for in Article 3(1) or Article 4(1).’11Paragraph 3(1) and (2) of the DH 1 Law provides:‘(1) In loan contracts concluded with consumers, terms — with the exception of contractual terms which have been individually negotiated — pursuant to which the financial institution stipulates that, for the purpose of paying out the amount of finance granted for purchase of the subject of the loan or financial leasing, the buying rate is to apply, and that, for the purpose of repayment of the debt, the selling rate, or a different exchange rate from that set when the loan was paid out, is to apply, shall be void.(2) Instead of the void term referred to in subparagraph 1 — without prejudice to subparagraph 3 — the official exchange rate set by the National Bank for the foreign currency concerned shall apply in relation to the disbursement and the repayment of the loan (including payment of the instalments and all the costs, fees and commissions expressed in foreign currencies).’12Paragraph 4 of that law provides:‘(1) In the case of loan contracts concluded with consumers which include the right to amend the contract unilaterally, the terms of that contract — with the exception of those that have been negotiated individually — which permit the unilateral increase of the interest rate or the unilateral increase of costs and commissions shall be deemed to be unfair.(2) A contractual term as referred to in subparagraph 1 shall be void if the credit institution has not commenced civil proceedings or if the court has dismissed the action or discontinued the examination of the case, unless it is possible to bring the proceedings, in respect of the contractual term, but those proceedings have not been commenced or, if they have been commenced, the court has not found the contractual term to be void under subparagraph 2a.(2a) A contractual term as referred to in subparagraph 1 shall be void if a court has found that it is void under the special law on the settlement of accounts in proceedings brought in the public interest by the supervisory authority.(3) In the cases referred to in subparagraphs 2 and 2a, the credit institution shall carry out a settlement of accounts with the consumer as provided for in the special law.’ The DH 2 Law 13Paragraph 37(1) of the Kúriának a pénzügyi intézmények fogyasztói kölcsönszerződéseire vonatkozó jogegységi határozatával kapcsolatos egyes kérdések rendezéséről szóló 2014. évi XXXVIII. törvényben rögzített elszámolás szabályairól és egyes egyéb rendelkezésekről szóló 2014. évi XL. törvény (Law No XL of 2014 on the provisions governing the settlement of accounts referred to in Law XXXVIII of 2014 on specific matters relating to the decision of the Kúria (Supreme Court) to harmonise the case-law on loan agreements concluded between credit institutions and consumers, and concerning a number of other provisions) (‘the DH 2 Law’) states:‘In relation to contracts falling within the scope of this Law, the parties may apply to the court for a declaration of invalidity of the contract or of certain contractual terms (“partial invalidity”) — irrespective of the grounds for such invalidity — only if they also request determination of the legal consequences of invalidity (namely, a declaration of validity or effectiveness of the contract up to the time of adoption of the decision). Failing any such request — and after the opportunity to remedy the defects has been given but not taken — the application shall be inadmissible and the substance of the case may not be examined. If the parties request determination of the legal consequences of total or partial invalidity, they must also indicate what legal consequence the court should apply. As regards the application of the legal consequences, the parties must put forward an express, quantitatively defined claim which also includes the settlement of accounts between them.’ The DH 3 Law 14Under Paragraph 10 of the az egyes fogyasztói kölcsönszerződések devizanemének módosulásával és a kamatszabályokkal kapcsolatos kérdések rendezéséről szóló 2014. évi LXXVII. Törvény (Law No LXXVII of 2014 on the resolution of issues relating to changing the currency in which certain loan contracts are denominated and the rules regarding interest) (‘the DH 3 Law’):‘As regards foreign currency mortgage loan contracts and foreign currency based mortgage loan contracts, the financial institution to which the debt is owed shall be required, within the period laid down for fulfilment of the obligation to settle accounts under [the DH 2 Law], to convert into a loan denominated in Hungarian forints the debt under a foreign currency mortgage loan agreement or a foreign currency based mortgage loan agreement concluded with a consumer, or the total debt derived from that agreement (also including interest, fees, commissions and costs charged in the foreign currency), both of which must be calculated on the basis of the settlement of accounts under [the DH 2 Law]. For the purposes of that conversion, whichever of the following two interest rates is the most favourable to the consumer on the reference date shall apply:(a)the average exchange rate for the foreign currency concerned officially set by the National Bank of Hungary in the period from 16 June 2014 to 7 November 2014, or(b)the exchange rate set by the National Bank of Hungary on 7 November 2014.’15Paragraph 15/A of that law provides:‘(1) In proceedings in progress which were brought for a declaration of invalidity (or partial invalidity) of a loan contract concluded with a consumer or for a determination of the legal consequences of invalidity, the provisions hereof relating to conversion into forints shall apply also to the amount of the consumer’s debt derived from a foreign currency loan contract or from a foreign currency based loan contract, calculated in accordance with the settlement of accounts under [the DH 2 Law].(2) The amount repaid by the consumer until the date of the decision shall reduce the amount of the consumer’s debt expressed in Hungarian forints on the reference date for the settlement of accounts.(3) When a loan agreement concluded with a consumer is declared valid, the specific contractual rights and obligations of the parties resulting from the settlement of accounts under [DH 2 Law] must be established in accordance with the provisions of this Law.’ The Hpt Law 16Paragraph 213(1) of the 1996. évi CXII. törvény a hitelintézetekről és a pénzügyi vállalkozásokról (Law No CXII of 1996 on credit institutions and financial undertakings) (‘the Hpt Law’) provides:‘Any loan contract concluded with a consumer which fails to mention(c)the whole cost connected with the contract, including interest, commission and the value of these expressed as a percentage,shall be null and void.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 17On 24 May 2007, Mrs Dunai concluded a loan contract with the bank denominated in Swiss francs (CHF), although, according to the terms of that contract, the loan should have been advanced in Hungarian florints (HUF), by applying the CHF-HUF exchange rate based on the bank buying rate on that day, which resulted in a payment of HUF 14734000, the resulting amount of the loan in Swiss francs being CHF 115573. That contract also provided that the loan repayments be made in Hungarian florints, the applicable exchange rate being however the selling rate practiced by the bank.18The exchange rate risk connected with fluctuations in the exchange rate of the currencies concerned, which took the form of a depreciation of the florint in relation to the Swiss franc, was borne by Mrs Dunai.19Since the parties to the main proceedings concluded the contract at issue in the main proceedings by notarial act, default by the debtor was sufficient for that contract to become enforceable, in the absence of any litigation proceedings before a Hungarian court.20On 12 April 2016, at the request of the bank, the notary ordered the enforcement of the contract. Mrs Dunai filed an objection to that enforcement before the referring court, claiming that the contract was null and void on the ground that it did not specify, in accordance with Article 213(1)(c) of the Hpt Law, the difference between the exchange rate applicable when the funds were released and the exchange rate applicable when the loan was paid off.21The bank contended that the opposition should be dismissed.22The referring court states that, during the course of 2014, the Hungarian legislature adopted several laws relating to loan contracts denominated in a foreign currency and designed to implement a decision of the Kúria (Supreme Court) adopted in proceedings to safeguard the uniformity of the civil law, on the basis of Paragraph 25(3) of the Basic Law, following the delivery of the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282). By that decision, the Kúria (Supreme Court) had, inter alia, held terms, such as those included in the loan contract at issue in the main proceedings, according to which the buying rate applies when the funds were released, whereas the selling rate applies for the purposes of repayment, to be unfair.23According to the referring court, those laws, which are applicable to the case in the main proceedings, provide in particular for the deletion, in such contracts, of terms which allow the bank to apply its own currency buying and selling rates, and for the replacement of those rates by the official exchange rate set by the National Bank of Hungary for the corresponding currency. That intervention of the legislature resulted in eliminating the difference between the various exchange rates based on those buying and selling rates.24The referring court states that, as a result of that ad hoc legislation, the court seised of the case can no longer find that the loan contract denominated in a foreign currency is invalid since that legislation has put an end to the situation giving rise to a ground for invalidity, which thus means that the contract is valid and, consequently, the consumer is obliged to bear the financial cost resulting from the exchange risk. In view of the fact that it is precisely that obligation which the consumer sought to avoid by bringing an application against the bank, it would be against her interests for the referring court to hold that contract to be valid.25From the view expressed by the referring court, it is clear that the Hungarian legislature expressly altered the content of loan contracts in such a way as to influence courts to rule in favour of banks. The court questions whether that situation is compatible with the Court’s interpretation of Article 6(1) of Directive 93/13.26As regards the decisions that the Kúria (Supreme Court) can adopt in order to ensure uniformity of interpretation of civil law, which include, in particular, Decision No 6/2013 PJE of 16 December 2013, stipulating, according to the referring court, that loan contracts such as that at issue in the main proceedings must be considered to be valid, that court states that, at the time of the adoption of those decisions by the Kúria (Supreme Court), neither recourse to the court designated by law nor compliance with the requirements of a fair trial are guaranteed. However, and although the procedure regulating their adoption is not adversarial, those decisions are binding on courts seised in adversarial proceedings.27The referring court makes reference, in that context, to points 69 to 75 of the Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, adopted by the Venice Commission at its 90th Plenary Session, which took place in Venice (Italy) on 16 and 17 March 2012, from which it is apparent that the decisions adopted in Hungary under the ‘standardisation’ procedure may be contested from a human rights standpoint.28In those circumstances, the Budai Központi Kerületi Bíróság (Central District Court, Buda, Hungary) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:‘(1)Should point 3 [of the operative part] of the judgment [of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282),] be interpreted as meaning that a national court may remedy the fact that a term of a contract concluded between a seller or supplier and a consumer is invalid where the continuation of the contract is contrary to the economic interests of the consumer?(2)Is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of equality before the law, non-discrimination, the right to an effective judicial remedy and the right to fair legal process, for the parliament of a Member State to alter, by the adoption of an act, private law contracts in similar categories concluded between a seller or supplier and a consumer?(3)If the answer to the previous question is in the affirmative, is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of equality before the law, non-discrimination, the right to an effective judicial remedy and the right to fair legal process, for the parliament of a Member State to alter, by the adoption of an act, various parts of loan contracts denominated in a foreign currency, supposedly for consumer protection purposes but triggering an effect which is in fact contrary to the fair interests of consumer protection, in that the loan contract remains valid following those alterations and the consumer is required to continue to bear the costs resulting from the foreign exchange risk?(4)With regard to the content of contracts concluded between a seller or supplier and a consumer, is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of the right to an effective judicial remedy and the right to fair legal process in respect of any civil law matter for the standardisation panel of the highest court of a Member State to direct the rulings of courts hearing such proceedings by means of “decisions adopted with a view to ensuring uniform interpretation of the law”?(5)If the answer to the previous question is in the affirmative, is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of the right to an effective judicial remedy and the right to fair legal process in respect of any civil law matter for the standardisation panel of the highest court of a Member State to direct the rulings of courts hearing such proceedings by means of “decisions adopted with a view to ensuring uniform interpretation of the law” where the appointment of judges as members of the standardisation panel is not carried out transparently, in accordance with predetermined rules, where the procedure before that panel is not public, and where it is not possible to know a posteriori the procedure followed, namely the expert evidence and academic works relied on and the way in which the various members have voted (for or against)?’ The proceedings before the Court 29By document lodged at the Court Registry on 30 January 2019, Mrs Dunai requested the reopening of the oral part of the procedure.30In support of that request, she claims, in essence, that, in his Opinion, the Advocate General expressed doubts about the precise meaning of the fourth and fifth questions relating to the decisions adopted, by the Kúria (Supreme Court), to ensure uniform interpretation of the law. In that regard, Mrs Dunai considers that it is necessary to provide to the Court a description of the elements knowledge of which is, according to her, essential for the Court to appreciate the real significance of those questions, which relates, in particular, to the fact that the Hungarian courts are under no obligation, either in practice or in accordance with a rule of national law, not to take into consideration a decision adopted to ensure uniform interpretation of the law where that decision is contrary to EU law.31According to Article 83 of the Rules of Procedure of the Court, the latter may, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.32In this case, the Court considers, after hearing the Advocate General, that it has all the information necessary to give judgment. It concludes, moreover, that the elements put forward by Mrs Dunai do not constitute new facts for the purposes of Article 83 of the Rules of Procedure of the Court.33In those circumstances, there is no need to order the reopening of the oral part of the procedure. Consideration of the questions referred Questions 1 to 3 34By its first to third questions, which should be examined together, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 must be interpreted as meaning that it precludes national legislation which prevents the court seised of the case from granting an application for the cancellation of a loan contract denominated in a foreign currency on the basis of the unfair nature of a term of the contract which imposes on the consumer the costs connected with the difference between the buying rate and the selling rate of the currency concerned, even if that court considers that the continued existence of that contract would conflict with the interests of the consumer, since that latter continues to bear the financial burden relating to the possible reduction in the value of the national currency, which serves as the currency of payment, in relation to the foreign currency in which the loan must be repaid.35First of all, it should be pointed out that, although the first to third questions refer only to the term relating to exchange difference as an unfair term which justifies, according to the applicant in the main proceedings, the cancellation of the loan contract, it is apparent from the request for a preliminary ruling that the interested party invokes the unfair nature of that term in order to avoid exchange rate risk. It can therefore not be excluded, as the Advocate General stated in point 57 of his Opinion, that, in the main proceedings, the question of the application of a term relating to the exchange rate risk is always relevant, particularly since the referring court could be tasked with assessing of its own motion the unfair nature of such a term (see, to that effect, judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 53 and the case-law cited). Therefore, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, it is necessary to answer the first three questions also in connection with an examination of an application for cancellation of a loan contract, such as that at issue in the main proceedings, based on the unfair nature of a term relating to the exchange rate risk.36In that regard, in the first place, as regards the term concerning the exchange difference at issue in the main proceedings, it is apparent from the reference for a preliminary ruling that the legislation referred to in the first three questions includes the DH 1, DH 2 and DH 3 Laws, as set out in paragraphs 9 to 14 of the present judgment, which were adopted after the conclusion of the loan contracts covered by them for the purposes of implementing a decision of the Kúria (Supreme Court) adopted following the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282). Those laws classify, in particular, terms relating to the exchange difference included in loan contracts as defined in those laws as being unfair and void, replace, with retroactive effect, those terms with terms applying the official exchange rate fixed by the National Bank of Hungary for the corresponding currency, and convert, with prospective effect, the outstanding amount of the loan into a loan denominated in the national currency.37As regards those terms, which, in accordance with those laws, were retroactively included in the loan contracts concerned, the Court held, in paragraphs 62 to 64 of its judgment of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750), that such terms, which reflect mandatory statutory provisions, cannot fall within the scope of Directive 93/13, since that directive does not apply, in accordance with Article 1(2) thereof, to conditions contained in contracts between a seller or supplier and a consumer which are determined by national legislation.38Nevertheless, the three questions referred relate not to the contractual terms included a posteriori as such by that legislation in the loan contracts, but to the impact of that legislation on the protection guarantees resulting from Article 6(1) of Directive 93/13 in relation with the term concerning the exchange difference included initially in the loan contracts at issue.39In that regard, it should be noted that Article 6(1) of that directive requires the Member States to provide that unfair terms do not bind consumers and that the contract will remain binding for the parties according to the same terms, if it can continue to exist without the unfair terms.40In so far as the Hungarian legislature remedied the problems connected with the practice of credit institutions consisting in concluding loan contracts including terms relating to exchange difference by modifying those terms by legislative means and by safeguarding, at the same time, the validity of loan contracts, such an approach corresponds to the objective pursued by the Union legislature in the context of Directive 93/13, and in particular Article 6(1) thereof. That objective consists in restoring the balance between the parties while in principle preserving the validity of the contract as a whole, not in cancelling all contracts containing unfair terms (see, to that effect, judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 31).41Nevertheless, as regards Article 6(1) of that directive, the Court has also held that it must be interpreted as meaning that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer, and that it has the consequence of restoring the consumer to the legal and factual situation that he would have been in in the absence of that term (see, to that effect, judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 61).42Although Article 7(1) of Directive 93/13 does not preclude the Member States from using legislation to put an end to the use of unfair terms in contracts concluded with consumers by sellers or suppliers, the fact remains that the legislature must, in that context, respect the requirements deriving from Article 6(1) of that directive.43The fact that certain contractual terms were, by means of legislation, declared to be unfair and void and replaced by new terms, in order to allow the continued existence of the contract at issue, cannot have the result of weakening the protection guaranteed to consumers, as pointed out in paragraph 40 of the present judgment.44In this case, in so far as the action brought by Mrs Dunai is based on the term relating to exchange difference which was included initially in the loan contract concluded with the bank, it is for the referring court to ascertain whether the national legislation, which declared terms of that nature to be unfair, allowed the legal and factual situation in which Mrs Dunai would have been in the absence of such an unfair term to be restored, in particular by giving rise to a right to restitution of advantages wrongly obtained, to her detriment, by the seller or supplier on the basis of that unfair term (see, to that effect, judgment of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 53).45It follows that Article 6(1) of Directive 93/13 does not preclude national legislation preventing the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to the exchange difference, such as that at issue in the main proceedings, provided that the finding that such a term is unfair allows the legal and factual situation that the consumer would have been in in the absence of that unfair term to be restored.46In the second place, as regards the terms relating to exchange rate risk, it should be noted, firstly, that the Court already held, in paragraphs 65 to 67 of the judgment of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750), that the considerations set out in paragraph 36 of the present judgment do not mean that such terms are, in their entirety, also excluded from the scope of application of Directive 93/13, in view of the fact that the amendments stemming from Paragraph 3(2) of the DH 1 Law and Paragraph 10 of the DH 3 Law were not intended to address in full the issue of the exchange rate risk in respect of the period between the time when the loan contract at issue was concluded and its conversion into Hungarian forints, pursuant to the DH 3 Law.47The referring court appears however to rely on the premiss that it is not possible for it, under the provisions of the DH 1, DH 2 and DH 3 Laws, to cancel the loan contract at issue in the main proceedings where the unfair nature of a term relating to the exchange rate risk is established, and questions whether such an impossibility is compatible with Article 6(1) of Directive 93/13.48In that regard, it should be noted, secondly, that, concerning contractual terms relating to exchange rate risk, it follows from the Court’s case-law that such terms, in so far as they define the main subject matter of the loan contract, come within Article 4(2) of Directive 93/13, and escape the assessment as to whether they are unfair only in so far as the national court having jurisdiction considers, following a case-by-case examination, that they were drafted by the seller or supplier in plain intelligible language (see, to that effect, judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 68 and the case-law cited).49If, thirdly, the referring court considers that the term relating to exchange rate risk at issue in the main proceedings is not drafted in plain intelligible language for the purposes of Article 4(2), it is for it to examine whether that term is unfair and, in particular, whether, despite the requirement of good faith, it causes a significant imbalance in the rights and obligations of the parties to the contract to the detriment of the consumer at issue (see, to that effect, judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 64).50Fourthly, as regards the consequences of the potentially unfair nature of such a term, Article 6(1) of Directive 93/13 requires, as was noted in paragraph 39 of the present judgment, Member States to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.51As regards, fifthly, the question whether a loan contract such as that at issue in the main proceedings must be cancelled in its entirety where it is concluded that one of its terms is unfair, it must be noted, first, as has already been pointed out in paragraph 40 of the present judgment, that Article 6(1) of Directive 93/13 seeks to restore the balance between the parties, and not to cancel all contracts containing unfair terms. Secondly, that contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 71 and the case-law cited), which is to be determined objectively (see, to that effect, judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 32).52In this case, as was already noted in paragraph 48 of the present judgment, the term relating to the exchange rate risk defines the main subject-matter of the contract. Therefore, in such a case, the continuation of the contract does not appear to be legally possible, which is however to be determined by the referring court.53In that regard, it seems to follow from the information provided by the referring court that the national legislation at issue in the main proceedings, in this case Paragraph 37(1) of the DH 2 Law, implies that consumers, where they invoke the unfair nature of a term other than that relating to the exchange difference or that permitting the unilateral increase of the interest rate, of costs and commissions, must also conclude that the court seised of the case declare the contract to be valid until the date of its decision. Therefore, that provision prevents, in breach of Article 6(1) of Directive 93/13, consumers from not being bound by the unfair term concerned, where appropriate, by means of the cancellation of the contract at issue in its entirety if that contract cannot continue in existence without that term.54Moreover, it should also be noted that, although the Court accepted, in its judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraphs 83 and 84), that a national court may substitute a supplementary provision of domestic law for an unfair contractual term in order to ensure the continued existence of the contract, it follows from the Court’s case-law that that possibility is limited to cases in which the cancellation of the contract in its entirety would expose the consumer to particularly unfavourable consequences, such that the latter would be penalised (see, to that effect, judgments of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 74, and of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 61).55In the case in the main proceedings, it is apparent from the findings made by the referring court that the continuation of the contract would be contrary to the interests of Mrs Dunai. The substitution referred to in the previous paragraph of the present judgment appears therefore not to be applicable in this case.56In the light of the foregoing, the answer to the first three questions is that Article 6(1) of Directive 93/13 must be interpreted as meaning that:it does not preclude national legislation which prevents the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to the exchange difference, such as that at issue in the main proceedings, provided that a finding that terms in such an agreement were unfair would restore the legal and factual situation that the consumer would have been in had that unfair term not existed; andit precludes national legislation which prevents, in circumstances such as those at issue in the main proceedings, the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to exchange rate risk where it is found that that term is unfair and that the contract cannot continue to exist without that term. Questions 4 and 5 57By its fourth and fifth questions, which should be examined together, the referring court asks, in essence, whether EU law, in particular the principles of effective judicial protection and due legal process, precludes, in the light of the EU objective of ensuring a high level of consumer protection, the lower national courts being formally bound, in the exercise of their judicial functions, by general and abstract decisions adopted by a supreme court, such as the Kúria (Supreme Court), to ensure uniform interpretation of the law.58First of all, it is true that, in order to clarify its doubts concerning the conformity with EU law of the standardisation procedure at issue in the main proceedings, the referring court refers, in its grounds put forward in support of its fourth and fifth questions, not only to the powers of the EU for the purposes of ensuring a high level of protection and to the principles of the right to an effective judicial remedy and the right to a fair trial, but also to several concrete provisions of EU law, such as Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The fact remains that those questions concern, in a very general way, the organisation of the Hungarian judicial system and the means it provides to guarantee the uniformity of national case-law.59As was in essence stated by the Advocate General in points 103 and 106 of his Opinion, first, that aspect appears to present only a very tenuous link with the dispute in the main proceedings, which relates to the request by a consumer to be released from the loan contract she had entered into, on the basis of the unfair nature of a term included in that contract, and, secondly, it appears to follow from the elements provided by the referring court that it is now the DH 1, DH 2 and DH 3 Laws which bind the Hungarian courts with respect to the protection of consumers against unfair terms such as those at issue in the main proceedings, and no longer the decisions of the Kúria (Supreme Court) on that matter, since those laws were adopted in order to implement those decisions.60In view of those elements, it should therefore be concluded that, by its fourth and fifth questions, the referring courts seeks to establish whether Directive 93/13, read in the light of Article 47 of the Charter, precludes a supreme court of a Member State from adopting, to ensure uniform interpretation of the law, binding decisions concerning the modalities of the implementation of that directive.61In that regard, an answer in the affirmative to those questions could be necessary where, first, those decisions do not allow the court with jurisdiction to give full effect to the rules of Directive 93/13 by setting aside, where necessary of its own motion, any conflicting provision of national legislation, even one adopted subsequently, including any conflicting judicial practice, without it being necessary for that court to request or await the prior setting aside of such a provision by legislative or other constitutional means, and, secondly, the possibility to make a reference for a preliminary ruling to the Court would be inhibited (see, to that effect, judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraphs 34, 40 and 41 and the case-law cited).62It is not apparent from the file before the Court that the referring court could not exclude such decisions where it considers it to be necessary in order to ensure the full effect of Directive 93/13, or, as is evidenced by the present procedure, that it could bring a reference for a preliminary ruling before the Court in that regard. Moreover, there is nothing in the file to suggest that the referring court would not be able, in this case, to offer the applicant in the main proceedings an effective remedy for the purpose of protecting the rights she can derive therefrom.63Moreover, as the Advocate General states, in essence, in point 113 of his Opinion, the Court held, in paragraph 68 of the judgment of 7 August 2018, Banco Santander and Escobedo Cortés (C‑96/16 and C‑94/17, EU:C:2018:643), that it cannot be excluded that, in their role of ensuring consistency in the interpretation of the law, and in the interests of legal certainty, the supreme courts of a Member State may, in compliance with Directive 93/13, elaborate certain criteria in the light of which the lower courts must examine the unfair nature of contractual terms.64Having regard to the above considerations, the answer to the fourth and fifth questions is that Directive 93/13, read in the light of Article 47 of the Charter, does not preclude a supreme court of a Member State from adopting, in the interest of ensuring uniform interpretation of the law, binding decisions concerning the modalities for implementing that directive, in so far as those decisions do not prevent the competent court from ensuring the full effect of the norms laid down in that directive and from offering consumers an effective remedy for the protection of the rights that they can derive therefrom, or from referring a question for a preliminary ruling to the Court in that regard, which it is however for the referring court to determine. Costs 65Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: 1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that: it does not preclude national legislation which prevents the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to the exchange difference, such as that at issue in the main proceedings, provided that a finding that terms in such an agreement were unfair would restore the legal and factual situation that the consumer would have been in had that unfair term not existed; and it precludes national legislation which prevents, in circumstances such as those at issue in the main proceedings, the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to exchange rate risk where it is found that that term is unfair and that the contract cannot continue to exist without that term. 2. Directive 93/13, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, does not preclude a supreme court of a Member State from adopting, in the interest of ensuring uniform interpretation of the law, binding decisions concerning the modalities for implementing that directive, in so far as those decisions do not prevent the competent court from ensuring the full effect of the norms laid down in that directive and from offering consumers an effective remedy for the protection of the rights that they can derive therefrom, or from referring a question for a preliminary ruling to the Court in that regard, which it is for the referring court to determine. [Signatures]( *1 ) Language of the case: Hungarian. | 607e5-c2bcdb4-4709 | EN |
Advocate General Sharpston: there is no factor affecting the validity of the Regulation concerning the placing of plant protection products on the market | 1 October 2019 ( *1 )(Reference for a preliminary ruling — Environment — Placing of plant protection products on the market — Regulation (EC) No 1107/2009 — Validity — Precautionary principle — Definition of the concept of ‘active substance’ — Combination of active substances — Reliability of the assessment procedure — Public access to the dossier — Tests of long-term toxicity — Pesticides — Glyphosate)In Case C‑616/17,REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal correctionnel de Foix (Criminal Court of Foix, France), made by decision of 12 October 2017, received at the Court on 26 October 2017, in the criminal proceedings against Mathieu Blaise, Sabrina Dauzet, Alain Feliu, Marie Foray, Sylvestre Ganter, Dominique Masset, Ambroise Monsarrat, Sandrine Muscat, Jean-Charles Sutra, Blanche Yon, Kevin Leo-Pol Fred Perrin, Germain Yves Dedieu, Olivier Godard, Kevin Pao Donovan Schachner, Laura Dominique Chantal Escande, Nicolas Benoit Rey, Eric Malek Benromdan, Olivier Eric Labrunie, Simon Joseph Jeremie Boucard, Alexis Ganter, Pierre André Garcia, intervener: Espace Émeraude, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal and K. Jürimäe, Presidents of Chambers, A. Rosas, E. Juhász, M. Ilešič, J. Malenovský, L. Bay Larsen (Rapporteur), P.G. Xuereb, N. Piçarra, L.S. Rossi and I. Jarukaitis, Judges,Advocate General: E. Sharpston,Registrar: V. Giacobbo-Peyronnel, administrator,having regard to the written procedure and further to the hearing on 20 November 2018,after considering the observations submitted on behalf of:–Mathieu Blaise and Others, by G. Tumerelle, avocat,the French Government, by D. Colas, S. Horrenberger and A.‑L. Desjonquères, acting as Agents,the Greek Government, by G. Kanellopoulos, E. Chroni and M. Tassopoulou, acting as Agents,the Finnish Government, by H. Leppo, acting as Agent,the European Parliament, by A. Tamás, D. Warin and I. McDowell, acting as Agents,the Council of the European Union, by A.‑Z. Varfi and M. Moore, acting as Agents,the European Commission, by F. Castillo de la Torre, A. Lewis, I. Naglis and G. Koleva, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 March 2019,gives the following Judgment 1This request for a preliminary ruling concerns the validity of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).2The request has been made in criminal proceedings brought against Mr Blaise and 20 other defendants charged with damaging or defacing property belonging to another person, while acting together. Legal context Directive 2003/4/EC 3Article 4(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) is worded as follows:‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:…(d)the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.…’ Regulation No 1107/2009 4Recital 8 of Regulation No 1107/2009 states:‘The purpose of this Regulation is to ensure a high level of protection of both human and animal health and the environment and at the same time to safeguard the competitiveness of Community agriculture. … The precautionary principle should be applied and this Regulation should ensure that industry demonstrates that substances or products produced or placed on the market do not have any harmful effect on human or animal health or any unacceptable effects on the environment.’5Article 1 of that regulation provides:‘1. This Regulation lays down rules for the authorisation of plant protection products in commercial form and for their placing on the market, use and control within the Community.2. This Regulation lays down … rules for the approval of active substances … which plant protection products contain or consist of …3. The purpose of this Regulation is to ensure a high level of protection of both human and animal health and the environment and to improve the functioning of the internal market through the harmonisation of the rules on the placing on the market of plant protection products, while improving agricultural production.4. The provisions of this Regulation are underpinned by the precautionary principle in order to ensure that active substances or products placed on the market do not adversely affect human or animal health or the environment. In particular, Member States shall not be prevented from applying the precautionary principle where there is scientific uncertainty as to the risks with regard to human or animal health or the environment posed by the plant protection products to be authorised in their territory.’6Article 2(2) of that regulation is worded as follows:‘This Regulation shall apply to substances, including micro-organisms having general or specific action against harmful organisms or on plants, parts of plants or plant products, referred to as “active substances”.’7Article 3 of that regulation contains a number of definitions for the purpose of that regulation.8Article 4(1) to (3) and (5) of Regulation No 1107/2009 is worded as follows:‘1. An active substance shall be approved in accordance with Annex II if it may be expected, in the light of current scientific and technical knowledge, that, taking into account the approval criteria set out in points 2 and 3 of that Annex, plant protection products containing that active substance meet the requirements provided for in paragraphs 2 and 3.2. The residues of the plant protection products, consequent on application consistent with good plant protection practice and having regard to realistic conditions of use, shall meet the following requirements:(a)they shall not have any harmful effects on human health, including that of vulnerable groups, or animal health, taking into account known cumulative and synergistic effects where the scientific methods accepted by the [European Food Safety Authority] to assess such effects are available, or on groundwater;3. A plant protection product, consequent on application consistent with good plant protection practice and having regard to realistic conditions of use, shall meet the following requirements:(b)it shall have no immediate or delayed harmful effect on human health, … taking into account known cumulative and synergistic effects where the scientific methods accepted by the [European Food Safety Authority] to assess such effects are available …;5. For approval of an active substance, paragraphs 1, 2 and 3 shall be deemed to be satisfied where this has been established with respect to one or more representative uses of at least one plant protection product containing that active substance.’9Article 7(1) of that regulation states:‘An application for the approval of an active substance … shall be submitted by the producer of the active substance to a Member State, (the rapporteur Member State), together with a summary and a complete dossier as provided for in Article 8(1) and (2) … demonstrating that the active substance fulfils the approval criteria provided for in Article 4.’10Article 8 of that regulation provides:‘1. The summary dossier shall include the following:for each point of the data requirements for the active substance, the summaries and results of tests and studies, the name of their owner and of the person or institute that has carried out the tests and studies;(c)for each point of the data requirements for the plant protection product, the summaries and results of tests and studies, the name of their owner and of the person or institute that carried out the tests and studies, relevant to the assessment of the criteria provided for in Article 4(2) and (3) for one or more plant protection products …;2. The complete dossier shall contain the full text of the individual test and study reports concerning all the information referred to in points (b) and (c) of paragraph 1. …4. The data requirements referred to in paragraphs 1 and 2 shall contain the requirements for active substances and plant protection products as set out in Annexes II and III to [Council] Directive 91/414/EEC [of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1)] and laid down in Regulations adopted in accordance with the advisory procedure referred to in Article 79(2) without any substantial modifications. Subsequent amendments to these Regulations shall be adopted in accordance with Article 78(1)(b).5. Scientific peer-reviewed open literature, as determined by the [European Food Safety Authority], on the active substance and its relevant metabolites dealing with side-effects on health, the environment and non-target species and published within the last 10 years before the date of submission of the dossier shall be added by the applicant to the dossier.’11Article 10 of that regulation provides:‘The [European Food Safety Authority] shall without delay make the summary dossier referred to in Article 8(1) available to the public, excluding any information in respect of which confidential treatment has been requested and justified pursuant to Article 63, unless there is an overriding public interest in its disclosure.’12Article 11(1) to (3) of Regulation No 1107/2009 states:‘1. Within 12 months of the date of the notification … the rapporteur Member State shall prepare and submit to the Commission, with a copy to the [European Food Safety Authority], a report, referred to as the “draft assessment report”, assessing whether the active substance can be expected to meet the approval criteria provided for in Article 4.2. …The rapporteur Member State shall make an independent, objective and transparent assessment in the light of current scientific and technical knowledge.3. Where the rapporteur Member State needs additional studies or information, it shall set a period in which the applicant must supply those studies or that information. …’13Article 12(1) to (3) of that regulation is worded as follows:‘1. The [European Food Safety Authority] shall circulate the draft assessment report received from the rapporteur Member State to the applicant and the other Member States … It shall ask the applicant to circulate an update of the dossier where applicable to the Member States, the Commission and the [European Food Safety Authority].The [European Food Safety Authority] shall make the draft assessment report available to the public, after giving the applicant two weeks to request, pursuant to Article 63, that certain parts of the draft assessment report be kept confidential.2. The [European Food Safety Authority] where appropriate shall organise a consultation of experts, including experts from the rapporteur Member State.Within 120 days of the end of the period provided for the submission of written comments, the [European Food Safety Authority] shall adopt a conclusion in the light of current scientific and technical knowledge using guidance documents available at the time of application on whether the active substance can be expected to meet the approval criteria provided for in Article 4 and shall communicate it to the applicant, the Member States and the Commission and shall make it available to the public. …3. Where the [European Food Safety Authority] needs additional information, it shall set a period of a maximum of 90 days for the applicant to supply it to the Member States, the Commission and the [European Food Safety Authority].The [European Food Safety Authority] may ask the Commission to consult a Community reference laboratory … for the purposes of verifying whether the analytical method for the determination of the residues proposed by the applicant is satisfactory …’14Article 13(1) and (2) of that regulation provides:‘1. Within six months of receiving the conclusion from the [European Food Safety Authority], the Commission shall present a report, referred to as “the review report”, and a draft Regulation to the Committee referred to in Article 79(1), taking into account the draft assessment report by the rapporteur Member State and the conclusion of the [European Food Safety Authority].2. A Regulation shall be adopted in accordance with the regulatory procedure referred to in Article 79(3) … providing that:an active substance is approved, subject to conditions and restrictions, as referred to in Article 6, where appropriate;an active substance is not approved; orthe conditions of the approval are amended.’15Article 21 of that regulation states:‘1. The Commission may review the approval of an active substance at any time. It shall take into account the request of a Member State to review, in the light of new scientific and technical knowledge and monitoring data, the approval of an active substance. …Where, in the light of new scientific and technical knowledge, it considers that there are indications that the substance no longer satisfies the approval criteria provided for in Article 4 … it shall inform the Member States, the [European Food Safety Authority] and the producer of the active substance, setting a period for the producer to submit its comments.3. Where the Commission concludes that the approval criteria provided for in Article 4 are no longer satisfied, … a Regulation to withdraw or amend the approval shall be adopted in accordance with the regulatory procedure referred to in Article 79(3).16Articles 25 to 27 of Regulation No 1107/2009 lay down the rules relating to the approval of safeners and synergists and the acceptance of co-formulants.17Article 29 of that regulation provides:‘1. Without prejudice to Article 50 a plant protection product shall only be authorised where following the uniform principles referred to in paragraph 6 it complies with the following requirements:its active substances, safeners and synergists have been approved;(e)in the light of current scientific and technical knowledge, it complies with the requirements provided for in Article 4(3);2. The applicant shall demonstrate that the requirements provided for in points (a) to (h) of paragraph 1 are met.3. Compliance with the requirements set out in point (b) and points (e) to (h) of paragraph 1 shall be established by official or officially recognised tests and analyses …6. Uniform principles for evaluation and authorisation of plant protection products shall contain the requirements set out in Annex VI to Directive 91/414/EEC and shall be laid down in Regulations adopted in accordance with the advisory procedure referred to in Article 79(2) without any substantial modifications. Subsequent amendments to these Regulations shall be adopted in accordance with Article 78(1)(c).Following these principles, interaction between the active substance, safeners, synergists and co-formulants shall be taken into account in the evaluation of plant protection products.’18Article 33(1) and (3) of that regulation states:‘1. An applicant who wishes to place a plant protection product on the market shall apply for an authorisation …3. The application shall be accompanied by the following:for the plant protection product concerned, a complete and a summary dossier for each point of the data requirements of the plant protection product;for each active substance, safener and synergist contained in the plant protection product, a complete and a summary dossier for each point of the data requirements of the active substance, safener and synergist;19Article 36(1) of that regulation provides:‘The Member State examining the application shall make an independent, objective and transparent assessment in the light of current scientific and technical knowledge using guidance documents available at the time of application. …20Article 37(1) of Regulation No 1107/2009 states:‘The Member State examining the application shall decide within 12 months of receiving it whether the requirements for authorisation are met.Where the Member State needs additional information, it shall set a time limit for the applicant to supply it. …’21Article 44(1) and (3) of that regulation is worded as follows:‘1. Member States may review an authorisation at any time where there are indications that a requirement referred to in Article 29 is no longer satisfied.3. The Member State shall withdraw or amend the authorisation, as appropriate, where:the requirements referred to in Article 29 are not or are no longer satisfied;false or misleading information was supplied concerning the facts on the basis of which the authorisation was granted;22Article 63 of that regulation is worded as follows:‘1. A person requesting that information submitted under this Regulation is to be treated as confidential shall provide verifiable evidence to show that the disclosure of the information might undermine his commercial interests, or the protection of privacy and the integrity of the individual.2. Disclosure of the following information shall normally be deemed to undermine the protection of the commercial interests or of privacy and the integrity of the individuals concerned:the method of manufacture;(f)information on the complete composition of a plant protection product;3. This Article is without prejudice to Directive [2003/4].’23Point 1.2 of Annex II to Regulation No 1107/2009 states:‘The evaluation by the [European Food Safety Authority] and the rapporteur Member State must be based on scientific principles and be made with the benefit of expert advice.’24Point 3.5 of that Annex provides:‘3.5.1.The methods of analysis of the active substance, safener or synergist as manufactured and of determination of impurities of toxicological, ecotoxicological or environmental concern or which are present in quantities greater than 1 g/kg in the active substance, safener or synergist as manufactured, shall have been validated and shown to be sufficiently specific, correctly calibrated, accurate and precise.3.5.2.The methods of residue analysis for the active substance and relevant metabolites in plant, animal and environmental matrices and drinking water, as appropriate, shall have been validated and shown to be sufficiently sensitive with respect to the levels of concern.3.5.3.The evaluation has been carried out in accordance with the uniform principles for evaluation and authorisation of plant protection products referred to in Article 29(6).’25Points 3.6.3 and 3.6.4 of that Annex subject, inter alia, the approval of active substances to the results of assessments including testing of carcinogenicity and toxicity. The dispute in the main proceedings and the questions referred for a preliminary ruling 26On 27 September 2016 Mr Blaise and 20 other individuals entered shops in the department of Ariège (France) and damaged cans of weed killer, containing glyphosate as well as glass display cases.27Those acts led to criminal proceedings being brought against those individuals before the tribunal correctionnel de Foix (Criminal Court of Foix, France), on charges of defacing or damaging the property of another, while acting in concert with others.28Before that court, the accused pleaded the defence of necessity and the precautionary principle, arguing that the aim of their actions had been to alert the shops concerned and their customers to the dangers associated with selling, without sufficient warnings, weed killers containing glyphosate, to prevent such sales, and to protect public health and their own health.29In order to give a ruling on whether that argument is well founded, the referring court is uncertain whether the EU legislation is capable of fully ensuring the protection of the human population and considers, therefore, that a ruling on the validity of Regulation No 1107/2009 in the light of precautionary principle is required.30In those circumstances, the tribunal correctionnel de Foix (Criminal Court of Foix) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Is Regulation [No 1107/2009] compatible with the precautionary principle when it provides no specific definition of an active substance, leaving it to the applicant to determine what it designates as the active substance in its product and granting it scope to focus its whole application dossier on a single substance, while its end product placed on the market is made up of several substances?(2)Is the precautionary principle observed and impartiality of the authorisation to place products on the market maintained when the tests, analyses and evaluations necessary for [investigating] the dossier are conducted by the applicants alone, who may be biased in their presentation, without any independent counter-analysis or publication of the application reports on the pretext of protecting industrial secrecy?(3)Is Regulation [No 1107/2009] compatible with the precautionary principle when it takes no account of there being multiple active substances or of their cumulative use, in particular when it makes no provision for any comprehensive specific analysis at European level of [the cumulative effect] of active substances within a single product?(4)Is Regulation [No 1107/2009] compatible with the precautionary principle when, in Chapters III and IV, it exempts from toxicity tests (genotoxicity, carcinogenicity assessment, assessment of endocrine disruptors, etc.) pesticide products in the commercial formulations in which they are placed on the market and in which consumers and the environment are exposed to them, requiring only summary testing, which is [in any event] performed by the applicant itself?’ The admissibility of the request for a preliminary ruling 31The European Parliament and the European Commission contest the admissibility of the request for a preliminary ruling.32The Parliament considers that the Court’s reply to this request can have no effect on the outcome of the criminal prosecutions brought in the main proceedings. Although only a finding that the approval granted to glyphosate was invalid might possibly have some relevance in that regard, the request concerns solely the validity of Regulation No 1107/2009.33For its part, the Commission argues that the main proceedings concern a plant protection product authorised by the French Republic and that the referring court fails to explain how the invalidity of Regulation No 1107/2009 could have any effect on the classification as criminal offences of the acts allegedly committed by the accused or on the assessment of whether criminal prosecutions brought against them are appropriate.34It must be borne in mind that, in accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 26).35It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 27).36In this case, it is apparent from the order for reference and from the response of the referring court to a request for clarification that, according to that court, a declaration that Regulation No 1107/2009 is invalid might, pursuant to the rules of French criminal law, lead it to hold that the legal element that is a constituent of the crime that the accused are alleged to have committed is nullified, taking into consideration that the plant protection products at issue are harmful to human health.37In those circumstances, given that, first, in the procedure under Article 267 TFEU, the interpretation of national law is exclusively for the referring court (see, to that effect, judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 24 and the case-law cited), and, second, Regulation No 1107/2009 establishes the rules whereby the harmfulness to human health or to animal health or to the environment of such products and the active substances of which those products are composed must be assessed before they can be authorised by a Member State, it cannot be held that questions seeking an examination of the compliance of that regulation with the precautionary principle manifestly bear no relation to the actual facts of the main action or its purpose.38The fact that the questions referred do not concern the validity of the EU acts approving the active substance contained in those products cannot lead to any other conclusion, since the main proceedings concern plant protection products which, as such, had to be authorised under that regulation.39Consequently, the request for a preliminary ruling is admissible. Consideration of the questions referred 40By its questions, which can be examined together, the referring court asks the Court, in essence, to assess the validity of Regulation No 1107/2009 in the light of the precautionary principle. The scope of the precautionary principle and whether Regulation No 1107/2009 must comply with it 41It must be noted, first, that, while Article 191(2) TFEU provides that the policy on the environment is to be based on, inter alia, the precautionary principle, that principle is also applicable in the context of other EU policies, in particular the policy on the protection of public health and where the EU institutions adopt, under the common agricultural policy or the policy on the internal market, measures for the protection of human health (see, to that effect, judgments of 2 December 2004, Commission v Netherlands, C‑41/02, EU:C:2004:762, paragraph 45; of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 68; and of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraphs 71 and 72).42There is therefore an obligation on the EU legislature, when it adopts rules governing the placing on the market of plant protection products, such as those laid down in Regulation No 1107/2009, to comply with the precautionary principle, in order to ensure, in particular, in accordance with Article 35 of the Charter of Fundamental Rights of the European Union and Article 9 and Article 168(1) TFEU, a high level of protection of human health (see, by analogy, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 116).43That principle entails that, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because the results of studies conducted are inconclusive, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (see, to that effect, judgments of 22 December 2010, Gowan ComércioInternacional e Serviços, C‑77/09, EU:C:2010:803, paragraphs 73 and 76; of 17 December 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 81 and 82; and of 22 November 2018, Swedish Match, C‑151/17, EU:C:2018:938, paragraph 38).44In that regard, it is clear from recital 8 and Article 1(4) of Regulation No 1107/2009 that the provisions of that regulation are based on the precautionary principle and that those provisions do not prevent the Member States from applying that principle where there is scientific uncertainty as to the risks with regard to human or animal health or the environment posed by the plant protection products to be authorised in their territory.45However, that finding cannot be sufficient to establish that that regulation complies with the precautionary principle.46A correct application of that principle in the area covered by Regulation No 1107/2009 presupposes, first, identification of the potentially negative consequences for health of the use of the active substances and plant protection products falling within its scope, and, second, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research (see, by analogy, judgments of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 60, and of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraph 75).47Consequently, since the purpose of Regulation No 1107/2009 is, as provided in Article 1(1) and (2) thereof, to lay down rules for the authorisation of plant protection products and the approval of active substances contained in those products, for their placing on the market, the EU legislature ought to establish a normative framework that ensures that the competent authorities have available to them, when they decide on that authorisation and that approval, sufficient information in order adequately to assess, in accordance with the requirements mentioned in paragraphs 43 and 46 of the present judgment, the risks to health resulting from the use of those active substances and those plant protection products.48It must also be recalled that the validity of a provision of EU law is to be assessed according to the characteristics of those provisions themselves and cannot depend on the particular circumstances of a given case (judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraph 72).49It follows that the criticism expressed by the referring court in relation to the conduct of the procedure that led to the approval of glyphosate cannot, in isolation, lead to a finding that the general rules governing such a procedure are unlawful.50It must, moreover, be added that, in view of the need to strike a balance between several objectives and principles, and of the complexity of the application of the relevant criteria, judicial review by the Court must necessarily be limited to whether the EU legislature, in adopting Regulation No 1107/2009, committed a manifest error of assessment (see, to that effect, judgment of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 46).51Accordingly, since the referring court considers that the general rules established by that regulation themselves do not satisfy the requirements arising from the precautionary principle, it is necessary to examine its criticism in order to determine whether that regulation is vitiated by a manifest error of assessment. The identification of the active substances of a plant protection product 52The referring court considers that Regulation No 1107/2009 provides no precise definition of the concept of an ‘active substance’. Accordingly, the referring court has doubts as to the compatibility with the precautionary principle of the fact that, according to that court, it is open to the applicant to shape the examination of an application for the authorisation of a plant protection product by choosing, at his discretion the constituent of the product which is to be described as its ‘active substance’.53In that regard, it must indeed be noted that Article 3 of that regulation, the purpose of which is to define a number of concepts for the purposes of that regulation, does not contain any definition of the expression ‘active substance’.54That said, first, it is clear from Article 2(2) of Regulation No 1107/2009 that substances, including micro-organisms, having general or specific action against harmful organisms or on plants, parts of plants or plant products are to be regarded as active substances, for the purposes of that regulation.55Second, it follows from Article 33 of that regulation that an applicant who wishes to place a plant protection product on the market must apply for an authorisation, and his application must contain the information required for the processing of that application. In particular, Article 33(3)(b) of that regulation provides that an application for authorisation of such a product must be accompanied, for each active substance contained in that product, by a complete and a summary dossier in respect of each point of the data requirements that apply to the active substance.56Further, in accordance with Article 78(1)(b) of Regulation No 1107/2009, read together with Article 8(4) of that regulation, the conditions which must be satisfied by the dossiers to be submitted in order to obtain the approval of active substances have been set out in detail, latterly, by Commission Regulation (EU) No 283/2013 of 1 March 2013 setting out the data requirements for active substances, in accordance with Regulation No 1107/2009 (OJ 2013 L 93, p. 1), which establishes, in particular, requirements, defined in section 1 of Part A of the Annex to that regulation, for the identification of those active substances. It is clear from those requirements that the information submitted must be sufficient to identify precisely each active substance and to define it in terms of its specification and nature.57It follows that an applicant is bound to identify, when submitting his application for authorisation of a plant protection product, any substance forming part of the composition of that product that corresponds to the criteria set out in Article 2(2) of Regulation No 1107/2009, so that, contrary to what is envisaged by the referring court, an applicant does not have the option of choosing at his discretion which constituent of that product is to be considered to be an active substance for the purposes of the examination of that application.58Further, it is not clearly evident that the criteria set out in that provision are insufficient to permit an objective determination of the substances concerned and to ensure that substances that actually play a role in the action of the plant protection products are actually taken into account in the assessment of the risks arising from the use of those products.59It must be added that it is the task of the competent authorities of the Member States to ensure that the obligation to identify the active substances contained in the plant protection product that is the subject of an application for authorisation has been met by the applicant, in order to be in a position to determine that that product satisfies the conditions laid down in Article 29 of that regulation, which imposes, inter alia, the requirement, in Article 29(1)(a), that each of those active substances has been approved.60In any event, the holder of an authorisation for a plant protection product who has not, in his application for authorisation, mentioned all the active substances contained in that product, would run the risk, under Article 44(3)(a) and (b) of that regulation, of his authorisation being withdrawn.61In the light of the foregoing, it cannot be held that the choices made by the EU legislature with respect to the obligations imposed on the applicant in relation to the identification of the active substances that form part of the composition of the plant protection product which is the subject of his application for authorisation are vitiated by a manifest error of assessment. Whether the cumulative effects of constituents of a plant protection product are taken into account 62The referring court is uncertain whether an alleged failure to take into account and undertake a specific analysis of the effects of a combination of a number of active substances contained in a plant protection product is compatible with the precautionary principle.63In that regard, it must be emphasised that Regulation No 1107/2009 makes provision for both a procedure for the approval of active substances, governed by Chapter II of that regulation, and a procedure for authorisation of plant protection products, governed by Chapter III of that regulation.64Those two procedures are closely linked, in that, in particular, the authorisation of a plant protection product presupposes, pursuant to Article 29(1)(a) of that regulation, that its active substances have previously been approved.65The EU legislature has imposed the requirement to take into account the potential effects of a combination of the various constituents of a plant protection product both in the procedure for the approval of the active substances and in the procedure for the authorisation of the plant protection products.66In accordance with Article 11(2) and Article 36(1) of Regulation No 1107/2009, the Member State dealing with an application for approval of an active substance or for authorisation of a plant protection product must undertake an independent, objective and transparent assessment of that application in the light of current scientific and technical knowledge.67In the procedure for the approval of an active substance, the aim of that assessment is, pursuant to Article 4(1) to (3) and (5) of that regulation, inter alia, to verify that one or more representative uses of at least one plant protection product containing that substance and the residues of such a product have no immediate or delayed harmful effect on human health.68Apart from the fact that it is inherent in such an assessment that it cannot be carried out in an objective fashion while failing to take into account the effects deriving from a possible combination of various constituents of a plant protection product, it must, in addition, be noted that Article 4(2) and (3) of that regulation explicitly provides that the possibility of that product or its residues having a harmful effect on human or animal health must be assessed taking into account ‘known cumulative and synergistic effects’, which implies, as stated by the Advocate General in point 58 of her Opinion, taking into consideration the effects caused by the interaction between a given active substance and, inter alia, the other constituents of the product.69That requirement also binds the European Food Safety Authority (‘the Authority’) where, in accordance with the second subparagraph of Article 12(2) of Regulation No 1107/2009, it adopts, in the light of current scientific and technical knowledge, conclusions in which it states whether the active substance can be expected to meet the approval criteria provided for in Article 4 of that regulation.70It must also be stated that, in accordance with Article 13(1) and (2) of Regulation No 1107/2009, the draft assessment report prepared by the rapporteur Member State and the conclusions of the Authority must be taken into account by the Commission in the review report that is to be the basis, when appropriate, for the adoption of a regulation approving the active substance concerned.71As regards the procedure for the authorisation of a plant protection product, taking into account the known cumulative and synergistic effects of the constituents of that product is again required, since, pursuant to Article 29(1)(e) of Regulation No 1107/2009, one of the requirements imposed if a plant protection product is to be authorised is that it must, in the light of current scientific and technical knowledge, comply with the conditions laid down in Article 4(3) of that regulation.72That requirement is, moreover, stated in Article 29(6) of Regulation No 1107/2009, from which it is apparent that, by virtue of the uniform principles for evaluation and authorisation of plant protection products that must be applied by the Member States, the interaction between the active substances, the safeners, the synergists and the co-formulants must be taken into account in such an assessment.73It is clear moreover from points 1.2 and 1.3 of the Annex to Commission Regulation (EU) No 284/2013 of 1 March 2013 setting out the data requirements for plant protection products, in accordance with Regulation No 1107/2009 (OJ 2013 L 93, p. 85) that, to obtain the authorisation of plant protection products, there must be submitted any information on potentially harmful effects of the plant protection product on human and animal health or on the environment, as well as known and expected cumulative and synergistic effects caused by such interaction.74The need to take into consideration the effects of the constituents of a plant protection product as a whole is, moreover, confirmed by the rules laid down in Articles 25 and 27 of Regulation No 1107/2009, from which it is clear that the placing on the market of safeners, synergists and co-formulants contained in such a product must also be subject to assessments to determine whether they have any harmful effects.75It follows from the foregoing that, contrary to the premiss which is the basis of the referring court’s uncertainty as described in paragraph 62 of the present judgment, the procedures leading to the authorisation of a plant protection product must necessarily include an assessment not only of the specific effects of the active substances contained in that product, but also of the cumulative effects of those substances and their effects combined with other constituents of that product.76Consequently, it cannot be held that Regulation No 1107/2009 is vitiated by a manifest error of assessment in that it does not make sufficient provision for the combined effects of the various constituents of a plant protection product to be taken into account before the placing on the market of that product is authorised. The reliability of the tests, studies and analyses taken into account for the authorisation of a plant protection product 77The referring court is uncertain whether the fact that the tests, studies and analyses required in the procedures for the approval of an active substance and authorisation of plant protection products are submitted by the applicant, with no independent counter-analysis, is contrary to the precautionary principle, in that it implies that those tests, studies and analyses might be biased.78It is apparent, admittedly, from Article 7(1) and from Article 8(1) and (2) of Regulation No 1107/2009, that the tests, studies and analyses required to permit the approval of an active substance must be provided by the applicant. The same is true in the procedure for authorisation of a plant protection product, pursuant to Article 33(3)(a) and (b) of that regulation, read together with Article 8(1) and (2) thereof.79Those rules constitute the corollary of the principle, set out in Article 7(1) and in Article 29(2) of that regulation, that it is for the applicant to prove that the active substance or plant protection product that is the subject of an application for approval or authorisation fulfils the relevant criteria laid down by that regulation.80That obligation contributes to achieving compliance with the precautionary principle by ensuring that there is no presumption that active substances and plant protection products have no harmful effects.81Further, it cannot be held that the body of rules established by Regulation No 1107/2009 enables an applicant to submit tests, studies and analyses that are biased in order to obtain, on that basis, the approval of an active substance or the authorisation of a plant protection product.82In that regard, it must, first, be stated that the EU legislature sought to control the quality of the tests, studies and analyses submitted in support of an application based on that regulation.83Accordingly, Article 8(1) of that regulation provides, inter alia, that the summary dossier submitted by the applicant must contain, in respect of each point of the data requirements that apply to the active substances and the plant protection products, the summaries and results of tests and studies, the name of their owner and of the person or institute that has carried out the tests and studies.84Likewise, as regards the procedure for the approval of the active substances, point 3.5 of Annex II to Regulation No 1107/2009 requires that the methods of analysis of the active substance and its residues should be validated and that the sufficiency of those methods to achieve various objectives should be demonstrated.85As regards the procedure for the authorisation of plant protection products, Article 29(3) of Regulation No 1107/2009 provides that compliance with a number of requirements, including the requirement that the product concerned has no harmful effects, is to be established by ‘official or officially recognised tests and analyses’, which necessarily precludes tests or analyses which do not sufficiently provide the guarantees of impartiality, objectivity or transparency from being accepted.86Further, while, for the remainder, Regulation No 1107/2009 does not directly establish standards stipulating in detail the manner in which the tests, studies and analyses submitted by the applicant are to be carried out, Article 8(4) of that regulation provides that rules are to be adopted with respect to the data requirements for the active substances and the plant protection products in the light of current scientific and technical knowledge.87Such standards have been adopted and are to be found in point 3 of the Annex to Regulation No 283/2013 and in point 3 of the Annex to Regulation No 284/2013.88Second, it must be recalled, as stated in paragraphs 66 and 69 of the present judgment, that the Member State to which an application is submitted must undertake an independent, objective and transparent assessment of that application in the light of current scientific and technical knowledge, while the Authority must adopt a decision in the light of current scientific and technical knowledge.89Meeting those requirements is assisted by Article 8(5) of Regulation No 1107/2009, which obliges the applicant to add to the dossier the scientific peer-reviewed open literature, as determined by the Authority, on the active substance and its relevant metabolites, dealing with side-effects on health, the environment and non-target species, and published within the last 10 years.90Further, point 1.2 of Annex II to Regulation No 1107/2009 provides that the evaluation of an active substance by the Authority and the rapporteur Member State must be based on scientific principles and be made with the benefit of expert advice.91It follows, in the first place, that, in order to be satisfied that an applicant has established, as required by Article 4(3)(b) and Article 29(1)(e) of that regulation, that a plant protection product has no harmful effects, the competent authorities cannot rely on tests, analyses and studies for which the applicant has not submitted evidence to demonstrate that those tests, analyses and studies were carried out by a reliable institution on the basis of methods that comply with accepted scientific principles.92If those authorities consider that the evidence submitted in that regard by the applicant is insufficient, they are under an obligation to request, pursuant to Article 11(3), Article 12(3) and Article 37(1) of that regulation, that additional information be provided by the applicant.93In the second place, as part of the assessment that those authorities must undertake, since, as stated in paragraph 88 of the present judgment, that assessment must be, in particular, independent and objective, those authorities are of necessity bound to take into account relevant evidence other than the tests, analyses and studies submitted by the applicant that might contradict the latter. Such an approach is compatible with the precautionary principle.94With that in mind, it is the duty of the competent authorities, in particular, to take account of the most reliable scientific data available and the most recent results of international research and not to give in all cases preponderant weight to the studies provided by the applicant.95In the event that the competent authorities come to the conclusion that, having regard to all the information at their disposal, an applicant has not established to the required standard that the conditions governing the approval or authorisation applied for are satisfied, they are bound to decide that the application should be rejected, there being no need, in order to reach that conclusion, to undertake a second assessment.96Third, it is clear that various provisions of Regulation No 1107/2009 play a part in ensuring that the assessment made by the competent authorities can rely on information other than merely the tests, analyses and studies submitted by the applicant.97Thus, it follows from Article 11(1) and from Article 12(1) of that regulation that, before the approval of an active substance, the rapporteur Member State is to prepare a draft assessment report which is to be sent to the other Member States and to the Authority.98In addition, in order to determine its conclusions, the Authority has the option, in accordance with Article 12(2) and (3) of that regulation, of organising a consultation of experts and of asking the Commission to consult a Community reference laboratory, to which the applicant may be required to submit samples and analytical standards. The conclusions are, moreover, communicated to the Member States.99Fourth, it is apparent from Article 21(1) and (3) of Regulation No 1107/2009 that the Commission may review the approval of an active substance at any time, including where, in the light of new scientific and technical knowledge, there are indications that the substance no longer satisfies the approval criteria laid down in Article 4 of that regulation. Likewise, it follows from Article 44(1) and (3) of that regulation that the authorisation of a plant protection product may be reviewed, then amended or withdrawn, where, inter alia, it is apparent from developments in scientific and technical knowledge that the product does not satisfy or no longer satisfies the requirements for a marketing authorisation laid down in Article 29 of that regulation, including the requirement that it has no immediate or delayed harmful effect on human health.100In the light of all the foregoing, it does not appear that Regulation No 1107/2009 is vitiated by a manifest error of assessment in that it provides that the tests, studies and analyses necessary in the procedures for approval of an active substance and for authorisation of a plant protection product are to be submitted by the applicant, but does not systematically require that an independent counter-analysis be carried out. Whether the authorisation application dossier should be public 101The referring court expresses doubts as to the compatibility with the precautionary principle of the fact that the dossier lodged by the applicant as part of the procedures established by Regulation No 1107/2009 is confidential.102In that regard, while it is not inconceivable that increased transparency in those procedures may be such as to permit an even better assessment of the risk to health resulting from the use of a plant protection product, by enabling the public concerned to put forward arguments opposing the grant of the approval or authorisation sought by an applicant, it must, in any event, be held that that regulation permits, to a great extent, the public to obtain access to the dossier lodged by the applicant.103First, as regards the procedure for the approval of an active substance, Article 10 of that regulation establishes the general rule that the Authority is without delay to make the summary dossier referred to in Article 8(1) of that regulation available to the public, that dossier containing, inter alia, the summaries and the results of the tests and studies submitted by the applicant.104Likewise, Article 12(1) of Regulation No 1107/2009 provides, inter alia, that the Authority is to make the draft assessment report received from the rapporteur Member State available to the public. That draft assessment report, the purpose of which is, in accordance with Article 11(1) of that regulation, to assess whether the active substance can be expected to meet the approval criteria provided for in Article 4 of that regulation, necessarily includes an analysis of the dossier submitted by the applicant.105Second, Article 63(1) of Regulation No 1107/2009 provides that a person requesting that information submitted under that regulation should be treated as confidential is to provide verifiable evidence to show that the disclosure of that information might undermine his commercial interests, or the protection of privacy and the integrity of the individual, that risk being presumed, however, with respect to information specified in Article 63(2) of that regulation.106Third, Article 63(3) of Regulation No 1107/2009 states that that article is to be without prejudice to the application of Directive 2003/4, which means that requests for access by third parties to the information contained in authorisation application dossiers are subject to the general provisions of that directive (see, to that effect, judgment of 23 November 2016, BayerCropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraph 44).107It is clear from the penultimate sentence of Article 4(2) of that directive that Member States may not provide that a request for access which concerns information on emissions into the environment should be refused on grounds based on protection of the confidentiality of commercial or industrial information.108That specific rule is applicable, in particular, to a great extent, to the studies designed to assess the harm that may be caused by the use of a plant protection product or the presence in the environment of residues after the application of that product (see, to that effect, judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraphs 79, 87, 91 and 95).109In those circumstances, it cannot be held that the rules put in place by the EU legislature to ensure public access to information in application dossiers that is relevant to an assessment of the risks arising from the use of a plant protection product are vitiated by a manifest error of assessment. The claim that no studies of carcinogenicity and toxicity are required for the authorisation procedure 110The referring court considers that Regulation No 1107/2009 merely requires an applicant to carry out cursory tests of the plant protection product that is the subject of an application for authorisation and that it exempts him from carrying out tests of long-term carcinogenicity and toxicity. Consequently, the referring court is uncertain whether those rules are compatible with the precautionary principle.111In that regard, it is clear that that regulation does not prescribe in detail the nature of the tests, analyses and studies to which plant protection products must be subject if they are to obtain authorisation.112While points 3.6.3 and 3.6.4 of Annex II to that regulation list explicitly some of the tests to which active substances must be subject before their approval, that regulation contains no comparable provisions with respect to plant protection products.113Nonetheless, it cannot be concluded that Regulation No 1107/2009 exempts the applicant from submitting tests of long-term carcinogenicity and toxicity relating to the plant protection product that is the subject of an application for authorisation.114In that context, it must be recalled that, in accordance with Article 4(3)(b) and Article 29(1)(e) of that regulation, such a product can be authorised only if it is established that it has no immediate or delayed harmful effect on human health, the burden of adducing proof of that lying, in accordance with Article 29(2) of that regulation, on the applicant.115A plant protection product cannot be considered to satisfy that condition where it exhibits any long-term carcinogenicity and toxicity.116It is therefore the task of the competent authorities, when examining an application for the authorisation of a plant protection product, to verify that the material submitted by the applicant, and primarily the tests, analyses and studies of the product, is sufficient to exclude, in the light of current scientific and technical knowledge, the risk that that product exhibits such carcinogenicity or toxicity. In that context, the ‘cursory tests’ mentioned by the referring court would not suffice to perform that verification properly.117In the light of all the foregoing, the answer to the questions referred is that an examination of those questions has revealed nothing capable of affecting the validity of Regulation No 1107/2009. Costs 118Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: An examination of the questions referred for a preliminary ruling has revealed nothing capable of affecting the validity of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC. [Signatures]( *1 ) Language of the case: French. | be20a-299ef60-4f0c | EN |
EU law does not preclude the loss of the nationality of a Member State and, consequently, the loss of citizenship of the EU, where the genuine link between the person concerned and that Member State is durably interrupted | 12 March 2019 ( *1 )(Reference for a preliminary ruling — Citizenship of the European Union — Article 20 TFEU — Articles 7 and 24 of the Charter of Fundamental Rights of the European Union — Nationalities of a Member State and of a third country — Loss of the nationality of a Member State and of citizenship of the Union by operation of law — Consequences — Proportionality)In Case C‑221/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 19 April 2017, received at the Court on 27 April 2017, in the proceedings M.G. Tjebbes, G.J.M. Koopman, E. Saleh Abady, L. Duboux v Minister van Buitenlandse Zaken, THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Prechal, M. Vilaras, K. Jürimäe and C. Lycourgos (Rapporteur), Presidents of Chambers, A. Rosas, E. Juhász, J. Malenovský, E. Levits, L. Bay Larsen and D. Šváby, Judges,Advocate General: P. Mengozzi,Registrar: M.-A. Gaudissart, Deputy Registrar,having regard to the written procedure and further to the hearing on 24 April 2018,after considering the observations submitted on behalf of:–Ms Tjebbes, by A. van Rosmalen,Ms Koopman and Ms Duboux, by E. Derksen, advocaat,Ms Saleh Abady, by N. van Bremen, advocaat,the Netherlands Government, by M.K. Bulterman, M.H.S. Gijzen and J. Langer, acting as Agents,Ireland, by M. Browne, L. Williams and A. Joyce, acting as Agents,the Greek Government, by T. Papadopoulou, acting as Agent,the European Commission, by H. Kranenborg and E. Montaguti, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 July 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Articles 20 and 21 TFEU and of Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’).2The request has been made in proceedings between M.G. Tjebbes, G.J.M. Koopman, E. Saleh Abady and L. Duboux, on the one hand, and the Minister van Buitenlandse Zaken (Minister for Foreign Affairs, Netherlands) (‘the Minister’), on the other hand, concerning the latter’s decision not to examine their respective applications for a national passport. Legal context International law The Convention on the Reduction of Statelessness 3The United Nations Convention on the Reduction of Statelessness, which was adopted in New York on 30 August 1961 and entered into force on 13 December 1975 (‘the Convention on the Reduction of Statelessness’), became applicable to the Kingdom of the Netherlands as of 11 August 1985. Article 6 of the convention provides:‘If the law of a Contracting State provides for loss of its nationality by a person’s spouse or children as a consequence of that person losing or being deprived of that nationality, such loss shall be conditional upon their possession or acquisition of another nationality.’4Under Article 7(3) to (6) of the convention:‘3. Subject to the provisions of paragraphs 4 and 5 of this Article, a national of a Contracting State shall not lose his nationality, so as to become stateless, on the ground of departure, residence abroad, failure to register or on any similar ground.4. A naturalised person may lose his nationality on account of residence abroad for a period, not less than seven consecutive years, specified by the law of the Contracting State concerned if he fails to declare to the appropriate authority his intention to retain his nationality.5. In the case of a national of a Contracting State, born outside its territory, the law of that State may make the retention of its nationality after the expiry of one year from his attaining his majority conditional upon residence at that time in the territory of the State or registration with the appropriate authority.6. Except in the circumstances mentioned in this Article, a person shall not lose the nationality of a Contracting State, if such loss would render him stateless, notwithstanding that such loss is not expressly prohibited by any other provision of this Convention.’ The Convention on Nationality 5The European Convention on Nationality, which was adopted on 6 November 1997 within the framework of the Council of Europe and entered into force on 1 March 2000 (‘the Convention on Nationality’), became applicable to the Kingdom of the Netherlands as of 1 July 2001. Article 7 of the Convention on Nationality provides:‘1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases:…(e)lack of a genuine link between the State Party and a national habitually residing abroad;2. A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by subparagraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it.…’ EU law 6Article 20 TFEU states:‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:(a)the right to move and reside freely within the territory of the Member States;(c)the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;7According to Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications.8Article 24(2) of the Charter provides:‘…2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. Netherlands law 9Article 6(1)(f) of the Rijkswet op het Nederlanderschap (Law on Netherlands Nationality)(‘Law on Nationality’) provides:‘1(f) After making a written declaration to that effect, the following persons shall acquire Netherlands nationality by a confirmation as referred to in paragraph 3: an adult foreign national who has at any time held Netherlands nationality … and who for a period of no less than one year has a residence permit of indefinite duration and his principal residence in the Netherlands … unless he has lost his Netherlands nationality pursuant to Article 15(1)(d) or (f).’10Paragraph 15 of that law provides:‘1. An adult shall lose his Netherlands nationality:if he also holds a foreign nationality and if, after attaining his majority and while holding both nationalities, he has his principal residence for an uninterrupted period of 10 years outside the Netherlands … and outside the territories to which the [EU Treaty] applies …;3. The period referred to in the first paragraph under (c) shall be deemed not to have been interrupted if the person concerned, for a period of less than one year, has his principal residence in the Netherlands … or in the territories to which the [EU Treaty] applies.4. The period referred to in the first paragraph under (c) can be interrupted by the issuing of a declaration regarding the possession of Netherlands nationality or a travel document or Netherlands identity card within the meaning of the [Paspoortwet (Law on passports)]. A new period of 10 years shall start to run as from the day of issue.’11Under Article 16 of the Law on Nationality:‘1. A minor shall lose his Netherlands nationality:(d)if his father or mother loses his or her Netherlands nationality pursuant to Article 15(1)(b), (c) or (d) …;2. The loss of Netherlands nationality referred to in the first paragraph shall not occur:if and as long as one of the parents possesses Netherlands nationality;if the minor is born in the country of his nationality and has his principal place of residence in that country at the time of acquiring that nationality …;(f)if the minor has or has had his principal place of residence in the country of his nationality for an uninterrupted period of five years …;12Under Article IV of the Rijkswet tot wijziging Rijkswet op het Nederlanderschap (verkrijging, verlening van het Nederlanderschap) (Law amending the Law on Netherlands Nationality (acquisition, granting and loss of Netherlands nationality)) of 21 December 2000, the 10-year period referred to in Article 15(1) of the Law on Nationality cannot commence earlier than 1 April 2003. The dispute in the main proceedings and the question referred for a preliminary ruling 13Ms Tjebbes was born on 29 August 1984 in Vancouver (Canada) and has, from birth, Netherlands and Canadian nationalities. On 9 May 2003 she was issued a Netherlands passport. The validity of that passport expired on 9 May 2008. On 25 April 2014 Ms Tjebbes submitted a passport application to the Netherlands Consulate in Calgary (Canada).14Ms Koopman was born on 23 March 1967 in Hoorn (the Netherlands). On 21 May 1985 she settled in Switzerland and, on 7 April 1988, she married Mr P. Duboux, a Swiss national. As a result of that marriage, Ms Koopman also acquired Swiss nationality. She had a Netherlands passport which was issued to her on 10 July 2000 and was valid until 10 July 2005. On 8 September 2014 Ms Koopman submitted a passport application to the Embassy of the Kingdom of the Netherlands in Bern (Switzerland).15Ms Saleh Abady was born on 25 March 1960 in Teheran (Iran). She is an Iranian national by birth. By Royal Decree of 3 September 1999 she also acquired Netherlands nationality. On 6 October 1999, a Netherlands passport, which was valid until 6 October 2004, was issued to her for the last time. On 3 December 2002 her registration with the Personal Records Database was suspended because of her emigration. Since that date Ms Saleh Abady has clearly had her principal residence in Iran without interruption. On 29 October 2014 she submitted a passport application to the Embassy of the Kingdom of the Netherlands in Teheran (Iran).16Ms Duboux was born on 13 April 1995 in Lausanne (Switzerland). She acquired Netherlands nationality by birth on account of the dual nationality of her mother, Ms Koopman, as well as Swiss nationality on account of her Swiss father, Mr Duboux. Ms Duboux was never issued a Netherlands passport. As a minor, however, she was entered in her mother’s passport, which was issued on 10 July 2000 and was valid until 10 July 2005. On 13 April 2013 Ms Duboux attained her majority. On 8 September 2014, at the same time as her mother, she submitted a passport application to the Embassy of the Kingdom of the Netherlands in Bern (Switzerland).17By four decisions of 2 May and 16 September 2014 and of 20 January and 23 February 2015 respectively, the Minister decided not to examine the passport applications submitted by Ms Tjebbes, Ms Koopman, Ms Saleh Abady and Ms Duboux. The Minister found that these persons had lost Netherlands nationality by operation of law pursuant to Article 15(1)(c) and Article 16(1)(d) of the Law on Nationality.18Since the complaints lodged against those decisions were rejected by the Minister, the applicants in the main proceedings brought four separate actions before the rechtbank Den Haag (District Court, The Hague, Netherlands). By rulings delivered respectively on 24 April, 16 July and 6 October 2015, the rechtbank Den Haag (District Court, The Hague) declared the actions brought by Ms Tjebbes, Ms Koopman and Ms Saleh Abady to be unfounded. By a ruling of 4 February 2016, however, the court declared the action brought by Ms Duboux to be well founded, and annulled the Minister’s decision in response to her complaint whilst maintaining the legal effects of that decision.19The applicants in the main proceedings lodged separate appeals against those rulings before the Raad van State (Council of State, Netherlands).20According to the Raad van State (Council of State), it is faced with the question whether the loss of Netherlands nationality by operation of law is compatible with EU law and, in particular, with Articles 20 and 21 TFEU, read in the light of the judgment of 2 March 2010, Rottmann (C‑135/08, EU:C:2010:104). In its view, those articles are applicable to the present case, even though, here, the loss of citizenship of the Union stems from the loss of the nationality of a Member State by operation of law rather than an express individual decision withdrawing nationality as in the case that gave rise to that judgment.21The Raad van State (Council of State) asks whether it is possible to examine the conformity of a national rule which prescribes the loss of the nationality of a Member State by operation of law with the principle of proportionality referred to by the Court in paragraph 55 of the judgment mentioned in the previous paragraph, and, if so, how this examination is to be carried out. Although the examination of proportionality as regards the consequences of the loss of Netherlands nationality for the situation of the persons concerned, from the point of view of EU law, may require each individual case to be examined, the Raad van State (Council of State) does not rule out, as the Minister has argued, that this examination of proportionality may be satisfied by the general statutory scheme, namely, in the present case, that provided for by the Law on Nationality.22The Raad van State (Council of State) is of the opinion that, as regards the situation of adults, there are convincing arguments for finding that Article 15(1)(c) of the Law on Nationality is consistent with the principle of proportionality and compatible with Articles 20 and 21 TFEU. The Raad van State (Council of State) points out, in that respect, that Article 15(1)(c) of the Law on Nationality lays down a significant period of 10 years of residence abroad before Netherlands nationality is lost, which would give grounds for assuming that the persons concerned have no, or only a very weak, link with the Kingdom of the Netherlands and, accordingly, with the European Union. In addition, in its opinion, it is relatively simple to retain Netherlands nationality, since the 10-year period is interrupted if, during the course of that period and for no less than one year without interruption, the person concerned resides in the Netherlands or the European Union, or obtains a declaration regarding the possession of Netherlands nationality or a travel document or a Netherlands identity card within the meaning of the Law on Passports. Furthermore, the referring court states that any person who qualifies for an ‘option’ for the purposes of Article 6 of the Law on Nationality is entitled to acquire by a confirmation the Netherlands nationality that he or she previously held.23Moreover, the Raad van State (Council of State) expresses the preliminary view that the Netherlands legislature did not act arbitrarily in adopting Article 15(1)(c) of the Law on Nationality and that, accordingly, it did not infringe Article 7 of the Charter on the right to respect for private and family life.24However, according to the Raad van State (Council of State), since it cannot be ruled out that examining the proportionality of the consequences of the loss of Netherlands nationality for the situation of the persons concerned may require each individual case to be examined, it is not clear whether or not a general statutory scheme such as that prescribed by the Law on Nationality is consistent with Articles 20 and 21 TFEU.25As regards the situation of minors, the referring court states that Article 16(1)(d) of the Law on Nationality shows the importance that the national legislature has attached to unity of nationality within the family. In that context, the referring court asks whether it is proportionate to deprive a minor of citizenship of the Union and the rights attaching thereto purely for the sake of preserving unity of nationality within the family, and the extent to which the child’s best interests within the meaning of Article 24(2) of the Charter are set to play a role in that regard. The referring court notes that a child who is a minor has little influence on the retention of his or her Netherlands nationality, and that the possibilities for interrupting certain periods of time or obtaining, for instance, a declaration regarding the possession of Netherlands nationality are not grounds for exception in the case of minors. Consequently, the referring court takes the view that it is not clearly established whether or not Article 16(1)(d) of the Law on Nationality is consistent with the principle of proportionality.26In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must Articles 20 and 21 TFEU, in the light of, inter alia, Article 7 of the [Charter], be interpreted — in view of the absence of an individual assessment, based on the principle of proportionality, with regard to the consequences of the loss of nationality for the situation of the person concerned from the point of view of EU law — as precluding legislation such as that in issue in the main proceedings, which provides:(1)that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the [Union], although there are possibilities for interrupting that 10-year period;(2)that under certain circumstances a minor loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, as a consequence of the loss of the nationality of his or her parent, as referred to under (1) …?’ Consideration of the question referred 27By its question, the referring court asks, in essence, whether Articles 20 and 21 TFEU, read in the light of Article 7 of the Charter, must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides under certain conditions for the loss of the nationality of that Member State by operation of law, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto without an individual examination, based on the principle of proportionality, of the consequences of that loss for the situation of those persons from the point of view of EU law.28From the outset it must be noted that, in so far as it is not apparent from the order for reference that the applicants in the main proceedings have exercised their right to free movement within the European Union, there is no need to answer the question with regard to Article 21 TFEU.29That clarification having been made, it should be noted that the Law on Nationality provides, in Article 15(1)(c) thereof, that an adult loses his Netherlands nationality if he also holds a foreign nationality and if, after attaining his majority and while holding both nationalities, he has his principal residence for an uninterrupted period of 10 years outside the Netherlands and outside the territories to which the EU Treaty applies. Article 16(1)(d) of that law provides that a minor loses, in principle, Netherlands nationality if his father or mother has lost his or her Netherlands nationality pursuant, inter alia, to Article 15(1)(c) of that law.30In that respect, it is important to bear in mind that the Court has already held that, while it is for each Member State, having due regard to international law, to lay down the conditions for acquisition and loss of nationality, the fact that a matter falls within the competence of the Member States does not alter the fact that, in situations covered by EU law, the national rules concerned must have due regard to the latter (judgment of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraphs 39 and 41 and the case-law cited).31Article 20 TFEU confers on every individual who is a national of a Member State citizenship of the Union, which, according to settled case-law, is intended to be the fundamental status of nationals of the Member States (judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 47 and the case-law cited).32Accordingly, the situation of citizens of the Union who, like the applicants in the main proceedings, are nationals of one Member State only and who, by losing that nationality, are faced with losing the status conferred by Article 20 TFEU and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of EU law. Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to EU law (judgment of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraphs 42 and 45).33In that context, the Court has already held that it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality (judgment of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraph 51).34In this instance, it is apparent from the order for reference that, by adopting Article 15(1)(c) of the Law on Nationality, the Netherlands legislature sought to introduce a system to avoid, inter alia, the undesirable consequences of one person having multiple nationalities. The Netherlands Government also notes in its observations to the Court that one of the objectives of the Law on Nationality is to preclude persons from obtaining or retaining Netherlands nationality where they do not, or no longer have, any link with the Kingdom of the Netherlands. In its view, Article 16(1)(d) of that law is intended, in turn, to restore unity of nationality within the family.35As mentioned by the Advocate General in points 53 and 55 of his Opinion, when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.36In that regard, a criterion such as that laid down in Article 15(1)(c) of the Law on Nationality, which is based on the habitual residence of nationals of the Kingdom of the Netherlands, for an uninterrupted period of 10 years, outside that Member State and outside the territories to which the EU Treaty applies, may be regarded as an indication that there is no such link. Similarly, as stated by the Netherlands Government with regard to Article 16(1)(d) of that law, the lack of a genuine link between the parents of a child who is a minor and the Kingdom of the Netherlands can be understood, in principle, as a lack of a genuine link between the child and that Member State.37The legitimacy, in principle, of the loss of the nationality of a Member State in those situations is indeed supported by the provisions of Article 6 and Article 7(3) to (6) of the Convention on the Reduction of Statelessness which provide that, in similar situations, a person may lose the nationality of a Contracting State in so far as he does not become stateless. The risk of becoming stateless is precluded, in the present case, by the national provisions at issue in the main proceedings, given that their application is conditional on the possession by the person concerned of the nationality of another State in addition to Netherlands nationality. Similarly, Article 7(1)(e) and (2) of the Convention on Nationality provides that a State Party may provide for the loss of its nationality, inter alia, in the case of an adult, where there is no genuine link between that State and a national habitually residing abroad and, in the case of a minor, for children whose parents lose the nationality of that State.38That legitimacy is further supported by the fact that, as noted by the referring court, when the person concerned requests, within the 10-year period laid down in Article 15(1)(c) of the Law on Nationality, the issuing of a declaration regarding the possession of Netherlands nationality, a travel document or a Netherlands identity card within the meaning of the Law on Passports, the Netherlands legislature considers that that person thus intends to retain a genuine link with the Kingdom of the Netherlands, as shown by the fact that under Article 15(4) of the Law on Nationality the issuing of one of those documents interrupts that period of time and therefore precludes the loss of Netherlands nationality.39Under those circumstances, EU law does not preclude, in principle, that in situations such as those referred to in Article 15(1)(c) of the Law on Nationality and Article 16(1)(d) thereof, a Member State prescribes for reasons of public interest the loss of its nationality, even if that loss will entail, for the person concerned, the loss of his or her citizenship of the Union.40However, it is for the competent national authorities and the national courts to determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law (see, to that effect, judgment of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraphs 55 and 56).41The loss of the nationality of a Member State by operation of law would be inconsistent with the principle of proportionality if the relevant national rules did not permit at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law.42It follows that, in a situation such as that at issue in the main proceedings, in which the loss of the nationality of a Member State arises by operation of law and entails the loss of citizenship of the Union, the competent national authorities and courts must be in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the person concerned recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality.43In fact, the referring court states, in essence, that under national law both the Minister and the competent courts are required to examine the possibility of retaining Netherlands nationality in the procedure governing applications for passport renewal, by carrying out a full assessment based on the principle of proportionality enshrined in EU law.44That examination requires an individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing the nationality of the Member State concerned, when it entails the loss of his or her citizenship of the Union, might, with regard to the objective pursued by the national legislature, disproportionately affect the normal development of his or her family and professional life from the point of view of EU law. Those consequences cannot be hypothetical or merely a possibility.45As part of that examination of proportionality, it is, in particular, for the competent national authorities and, where appropriate, for the national courts to ensure that the loss of nationality is consistent with the fundamental rights guaranteed by the Charter, the observance of which the Court ensures, and specifically the right to respect for family life as stated in Article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter (judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 70).46As regards the circumstances of the individual situation of the person concerned, which are likely to be relevant in the assessment that the competent national authorities and national courts are to carry out in the present case, it must be mentioned, in particular, that following the loss, by operation of law, of Netherlands nationality and of citizenship of the Union the person concerned would be exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States, including, depending on the circumstances, particular difficulties in continuing to travel to the Netherlands or to another Member State in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity. Also relevant are (i) the fact that the person concerned might not have been able to renounce the nationality of a third country and that person thus falls within the scope of Article 15(1)(c) of the Law on Nationality and (ii) the serious risk, to which the person concerned would be exposed, that his or her safety or freedom to come and go would substantially deteriorate because of the impossibility for that person to enjoy consular protection under Article 20(2)(c) TFEU in the territory of the third country in which that person resides.47As for minors, the competent administrative and judicial authorities must also take into account, in the context of their individual examination, possible circumstances from which it is apparent that the loss of Netherlands nationality by the minor concerned, which the national legislature has attached to the loss of Netherlands nationality by one of his or her parents in order to preserve unity of nationality within the family, fails to meet the child’s best interests as enshrined in Article 24 of the Charter because of the consequences of that loss for the minor from the point of view of EU law.48In the light of the foregoing considerations, the answer to the question referred is that Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter, must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings, which provides under certain conditions for the loss, by operation of law, of the nationality of that Member State, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. In the context of that examination, the authorities and the courts must determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family, from the point of view of EU law.49In the light of the answer to the question referred, there is no need to rule on the request put forward at the hearing by the Netherlands Government that the Court should limit the temporal effects of the judgment to be delivered in the event that it were to find the Netherlands legislation to be incompatible with Article 20 TFEU. Costs 50Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings, which provides under certain conditions for the loss, by operation of law, of the nationality of that Member State, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. In the context of that examination, the authorities and the courts must determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family, from the point of view of EU law. [Signatures]( *1 ) Language of the case: Dutch. | 8f0ed-0e0addb-4090 | EN |
The Commission erred in law by refusing to register the European citizens’ initiative aimed at improving the situation of national minority regions | 7 March 2019 ( *1 )(Appeal — Law governing the institutions — Citizens’ initiative — Regulation (EU) No 211/2011 — Registration of the proposed citizens’ initiative — Article 4(2)(b) — Condition that the proposed initiative does not manifestly fall outside the framework of the European Commission’s powers to submit a proposal for a legal act for the purpose of implementing the Treaties — Burden of proof — Economic, social and territorial cohesion — Article 174 TFEU — Citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’ — Application for registration — Refusal by the Commission)In Case C‑420/16 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 July 2016, Balázs-Árpád Izsák, residing in Târgu Mureş (Romania), Attila Dabis, residing in Budapest (Hungary),represented by D. Sobor, ügyvéd,appellants,the other parties to the proceedings being: European Commission, represented by K. Banks, K. Talabér-Ritz, H. Krämer and B.‑R. Killmann, acting as Agents,defendant at first instance, Hungary, represented by M.Z. Fehér, acting as Agent, Hellenic Republic, Romania, represented by R.H. Radu, C.R. Canţăr, C.‑M. Florescu, L. Liţu and E. Gane, acting as Agents, Slovak Republic, represented by B. Ricziová, acting as Agent,interveners at first instance,THE COURT (First Chamber),composed of R. Silva de Lapuerta, Vice-President of the Court, acting as President of the First Chamber, J.‑C. Bonichot, A. Arabadjiev, E. Regan and S. Rodin (Rapporteur), Judges,Advocate General: P. Mengozzi,Registrar: R. Şereş, administrator,having regard to the written procedure and further to the hearing on 3 May 2018,after hearing the Opinion of the Advocate General at the sitting on 4 October 2018,gives the following Judgment 1By their appeal Mr Balázs-Árpád Izsák and Mr Attila Dabis seek to have set aside the judgment of the General Court of the European Union of 10 May 2016, Izsák and Dabis v Commission (T‑529/13, ‘the judgment under appeal’, EU:T:2016:282), dismissing their action for annulment of Decision C(2013) 4975 final of the European Commission of 25 July 2013 concerning the application for registration of the European citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’ submitted to the Commission on 18 June 2013 (‘the decision at issue’). Legal context 2Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1) states in recitals 1, 2, 4 and 10:‘(1)The Treaty on European Union (TEU) reinforces citizenship of the Union and enhances further the democratic functioning of the Union by providing, inter alia, that every citizen is to have the right to participate in the democratic life of the Union by way of a European citizens’ initiative. That procedure affords citizens the possibility of directly approaching the Commission with a request inviting it to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties similar to the right conferred on the European Parliament under Article 225 of the Treaty on the Functioning of the European Union (TFEU) and on the Council under Article 241 TFEU.(2)The procedures and conditions required for the citizens’ initiative should be clear, simple, user-friendly and proportionate to the nature of the citizens’ initiative so as to encourage participation by citizens and to make the Union more accessible. They should strike a judicious balance between rights and obligations.…(4)The Commission should, upon request, provide citizens with information and informal advice about citizens’ initiatives, notably as regards the registration criteria.(10)In order to ensure coherence and transparency in relation to proposed citizens’ initiatives and to avoid a situation where signatures are being collected for a proposed citizens’ initiative which does not comply with the conditions laid down in this Regulation, it should be mandatory to register such initiatives on a website made available by the Commission prior to collecting the necessary statements of support from citizens. All proposed citizens’ initiatives that comply with the conditions laid down in this Regulation should be registered by the Commission. The Commission should deal with registration in accordance with the general principles of good administration.’3Article 1 of Regulation No 211/2011 provides:‘This Regulation establishes the procedures and conditions required for a citizens’ initiative as provided for in Article 11 TEU and Article 24 TFEU.’4In accordance with Article 2 of that regulation:‘For the purpose of this Regulation the following definitions shall apply:1.“citizens’ initiative” means an initiative submitted to the Commission in accordance with this Regulation, inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties, which has received the support of at least one million eligible signatories coming from at least one quarter of all Member States;3.“organisers” means natural persons forming a citizens’ committee responsible for the preparation of a citizens’ initiative and its submission to the Commission.’5Article 4(1) to (3) of the regulation provides:‘1. Prior to initiating the collection of statements of support from signatories for a proposed citizens’ initiative, the organisers shall be required to register it with the Commission, providing the information set out in Annex II, in particular on the subject matter and objectives of the proposed citizens’ initiative.That information shall be provided in one of the official languages of the Union, in an online register made available for that purpose by the Commission (“the register”).The organisers shall provide, for the register and where appropriate on their website, regularly updated information on the sources of support and funding for the proposed citizens’ initiative.After the registration is confirmed in accordance with paragraph 2, the organisers may provide the proposed citizens’ initiative in other official languages of the Union for inclusion in the register. The translation of the proposed citizens’ initiative into other official languages of the Union shall be the responsibility of the organisers.The Commission shall establish a point of contact which provides information and assistance.2. Within two months from the receipt of the information set out in Annex II, the Commission shall register a proposed citizens’ initiative under a unique registration number and send a confirmation to the organisers, provided that the following conditions are fulfilled:(b)the proposed citizens’ initiative does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties;3. The Commission shall refuse the registration if the conditions laid down in paragraph 2 are not met.Where it refuses to register a proposed citizens’ initiative, the Commission shall inform the organisers of the reasons for such refusal and of all possible judicial and extrajudicial remedies available to them.’ Background to the dispute and the decision at issue 6The background to the dispute, as set out in the judgment under appeal, may be summarised as follows.7On 18 June 2013 the appellants, together with five other persons, sent the Commission a proposed European citizens’ initiative (‘ECI’) entitled ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’ (‘the proposed ECI at issue’).8In the online register made available for that purpose by the Commission, the appellants, in accordance with Article 4(1) of Regulation No 211/2011, provided the minimum information described in Annex II to that regulation (‘the required information’), including a brief statement of the subject matter and objectives of the proposed ECI at issue.9According to the information provided by the appellants as required information, the proposed ECI at issue aimed to ensure that the cohesion policy of the European Union paid special attention to regions whose ethnic, cultural, religious or linguistic characteristics differed from those of the surrounding regions.10In an annex to the information provided as required information, the appellants, in accordance with Annex II to Regulation No 211/2011, gave more detailed information on the subject matter, objectives and context of the proposed ECI at issue (‘the additional information’).11According to the appellants, the cohesion policy governed by Articles 174 to 178 TFEU should, in order to reflect the fundamental values defined in Articles 2 and 3 TEU, contribute to preserving the specific ethnic, cultural, religious or linguistic characteristics of the national minority regions which are endangered by European economic integration, and to correcting the handicaps and discrimination affecting the economic development of those regions. Accordingly, the proposed act was to give national minority regions the opportunity to access EU cohesion policy funds, resources and programmes equal to that of currently eligible regions, such as those listed in Annex I to Regulation (EC) No 1059/2003 of the European Parliament and of the Council of 26 May 2003 on the establishment of a common classification of territorial units for statistics (NUTS) (OJ 2003 L 154, p. 1). Those guarantees could, according to the appellants, include the establishment of autonomous regional institutions with sufficient powers to assist national minority regions in preserving their national, linguistic and cultural characteristics as well as their identity.12By the decision at issue, the Commission refused to register the proposed ECI at issue, on the ground that it was apparent from an in-depth examination of the provisions of the Treaties cited in the proposal, and of all the other possible legal bases, that the proposed ECI fell manifestly outside the framework of its powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties. The procedure before the General Court and the judgment under appeal 13By application lodged at the Registry of the General Court on 27 September 2013, the appellants brought an action for the annulment of the decision at issue.14In support of their action, they put forward a single plea in law, alleging that the Commission had erred in law in refusing, on the basis of Article 4(2)(b) of Regulation No 211/2011, to register the proposed ECI at issue.15By the judgment under appeal, the General Court ruled essentially that the Commission had not erred in law in considering that the proposed ECI at issue fell manifestly outside the framework of its powers to submit a proposal for a legal act in that respect.16It therefore dismissed the action as unfounded. Forms of order sought by the parties 17The appellants claim that the Court should:–set aside the judgment under appeal and annul the decision at issue;in the alternative, set aside the judgment under appeal and refer the case back to the General Court; andorder the Commission to pay the costs.18Hungary claims that the Court should set aside the judgment under appeal and give judgment on the substance of the case or refer it back to the General Court.19The Commission, Romania and the Slovak Republic contend that the Court should dismiss the appeal and order the appellants to pay the costs. The request for reopening of the oral part of the procedure 20In accordance with Article 82(2) of the Rules of Procedure, the oral part of the procedure was closed following the delivery of the Opinion of Advocate General Mengozzi on 4 October 2018.21By letter of 1 November 2018, Romania requested the Court to order the oral part of the procedure to be reopened.22Romania, challenging the reasoning of the Advocate General in points 51 to 55 of his Opinion, argues essentially that he put forward two arguments that had not been debated between the parties. First, the Advocate General included national minority regions in the category of cross-border regions referred to in the third paragraph of Article 174 TFEU. Second, he asserted that the reference to cross-border regions in Article 174 TFEU was such as to call in question the conclusion that that article must be applied in accordance with the political, administrative and institutional situation of the Member States, and hence with Article 4(2) TEU.23On this point, it follows from the second paragraph of Article 252 TFEU that it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement; the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 57, and of 6 October 2015, Commission v Andersen, C‑303/13 P, EU:C:2015:647, paragraph 33).24Consequently, a party’s disagreement with the Opinion cannot, irrespective of the questions examined in the Opinion, in itself constitute grounds for reopening the oral part of the procedure (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 62, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).25That said, Article 83 of the Rules of Procedure allows the Court at any time, after hearing the Advocate General, to order the reopening of the oral part of the procedure, in particular where the case must be decided on the basis of an argument which has not been debated between the parties (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 62).26However, that is not the position in the present case.27It must be observed that Romania proceeds in part from an incorrect reading of the Opinion. The Advocate General’s reasoning in points 51 to 55 of the Opinion concerns the question whether national minority regions may be classified as regions within the meaning of the third paragraph of Article 174 TFEU, in particular regions suffering from severe and permanent demographic handicaps, and in that context whether the list of handicaps in that provision is indicative or exhaustive. That question relating in particular to the nature of that list, which was raised by the appellants in their appeal, was fully debated between the parties.28Accordingly, the Court, after hearing the Advocate General, considers that there is no need to order the oral part of the procedure to be reopened. The appeal 29In support of their appeal, the appellants put forward five grounds of appeal. The first ground of appeal alleges infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 92(1) of the Rules of Procedure of the General Court. The second ground alleges infringement of Article 11(4) TEU and Article 4(2)(b) of Regulation No 211/2011. The third ground alleges infringement of Articles 4(2) and 174 TFEU. The fourth ground alleges infringement of Articles 7 and 167 TFEU, Article 3(3) TEU, Article 22 of the Charter and the provisions of the Treaties relating to the prohibition of discrimination. The fifth ground alleges misinterpretation of the concept of ‘abuse of rights’ in connection with the decision on costs.30In addition, in their request for an oral hearing, the appellants, on the basis of Article 127 of the Rules of Procedure of the Court, sought leave to adduce three further grounds of appeal, alleging breach of the principle of good administration, partial non-registration of the proposed ECI at issue, and breach of the principle of equal treatment.31It is appropriate to begin by examining the first to third grounds of appeal together, in so far as the appellants thereby essentially criticise the General Court for erring, in particular in paragraphs 72 to 74, 81 and 85 to 87 of the judgment under appeal, in finding that Articles 174 to 178 TFEU relating to the cohesion policy of the European Union could not constitute a legal basis for the adoption of the proposed act. Arguments of the parties 32By their first ground of appeal, the appellants argue that the General Court infringed their procedural rights under Article 47 of the Charter and Article 92(1) of the Rules of Procedure of the General Court by finding, in paragraphs 81 and 85 of the judgment under appeal, that they had not shown either that the implementation of the EU cohesion policy, both by the European Union and by the Member States, endangered the specific characteristics of national minority regions, or that the specific ethnic, cultural, religious or linguistic characteristics of national minority regions could be regarded as a severe and permanent demographic handicap within the meaning of the third paragraph of Article 174 TFEU. The appellants submit that, before making such a finding, the General Court should have informed them that it was for them to provide proof of such facts.33Consequently, in their view, the General Court ruled on the basis of mere suppositions, as indeed follows from the wording of paragraph 87 of the judgment under appeal.34According to the Commission and the Slovak Republic, this ground of appeal must be rejected as unfounded.35By their second ground of appeal, the appellants, supported by Hungary, complain essentially that the General Court infringed Article 11(4) TEU and misunderstood the condition in Article 4(2)(b) of Regulation No 211/2011 by finding, in paragraphs 72 to 74 of the judgment under appeal, that Articles 174, 176, 177 and 178 TFEU could not constitute a legal basis for the adoption of the proposed act and that the proposed ECI did not therefore satisfy that condition.36They submit, to begin with, that the relevant provisions of the EU and FEU Treaties do not limit the right to propose an ECI to fields in which the European Union has exclusive competence. That right may also be exercised in fields of shared competence, including, therefore, the field of cohesion policy. The proposed ECI at issue, submitted on the basis of Articles 174 to 178 TFEU, assumes a legislative procedure applicable to shared competence.37However, according to the appellants, in paragraphs 73 and 74 of the judgment under appeal the General Court summarised the additional information incorrectly and thus attributed to the proposed ECI at issue a content which could not be deduced from the documents submitted by the organisers. The organisers clearly expected from the proposed act, first, a definition of the concept of ‘national minority region’ and the creation of the legal and institutional framework of such a region and, second, as an annex, the identification by name of the existing national minority regions. On the other hand, they did not expect the proposed act to require the Member States to define that concept or draw up the list of regions. The fact that the organisers did not describe in detail the procedure to be followed for adopting the proposed act cannot affect the registration of the proposed ECI at issue, since Articles 174 to 178 TFEU allow the Commission to submit a proposal for such an act.38Next, the appellants and Hungary argue that, in any event, the General Court infringed Article 4(2)(b) of Regulation No 211/2011 by considering that the condition set out in that provision was not satisfied in the present case. It follows from a literal interpretation of that provision that the Commission can refuse to register a proposed ECI only if it manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties. Apart from the fact that the Commission exceeded its discretion in connection with the registration of the proposed ECI, the proposed ECI at issue was clearly within the framework of the cohesion policy and its aim was to improve the existing regulatory framework in order to protect the objectives pursued and values recognised by the European Union. By confirming such an incorrect conclusion of the Commission, the General Court therefore erred in law.39Finally, the appellants criticise the General Court for not ruling in the judgment under appeal on the question of the interpretation of Article 4(2)(b) of Regulation No 211/2011 as regards the manifest character of the Commission’s lack of powers. The General Court thus breached its obligation to state reasons, and the absence of reasoning in itself justifies setting aside the judgment under appeal.40According to the Commission, whose position is shared by Romania and the Slovak Republic, in so far as the appellants, by their second ground of appeal, call in question the General Court’s findings on the subject matter of the proposed ECI at issue, which are findings of fact within the sole jurisdiction of the General Court, that ground of appeal must be rejected as inadmissible. In any case, that ground of appeal is either unfounded or inoperative. The General Court was entitled to consider, in paragraphs 66 to 90 of the judgment under appeal, that, in view of the proposed ECI at issue and in the context of an initial examination of the material available to the Commission, the Commission manifestly could not propose the adoption of an EU act corresponding to the proposed act on the basis of Articles 174, 176, 177 and 178 TFEU.41Romania stresses, in particular, that the European Union has no express competence on the basis of the Treaties to legislate in the field of the protection of persons belonging to national minorities. Furthermore, it cannot act in that field by diverting from their purpose the powers it possesses in other fields such as culture, education or regional policy. Finally, the European Union obviously cannot acquire new powers in the field of the protection of persons belonging to national minorities by means of an ECI.42The Slovak Republic adds, in particular, that, contrary to the appellants’ submissions, Article 4(2)(b) of Regulation No 211/2011 cannot be interpreted, simply because of the occurrence of the adverb ‘manifestly’ in that provision, as meaning that the Commission must limit itself, at the stage of registration of a proposed ECI, to a prima facie examination. It was not necessary in the present case for the General Court to adopt a position in the judgment under appeal on the meaning of that term.43The Slovak Republic further observes that the appellants’ criticism of the General Court’s finding in paragraph 73 of the judgment under appeal that the proposed act would force the Member States to define the concept of ‘national minority region’ and draw up a list of those regions derives from an error in the Hungarian language version of that paragraph.44The appellants reply in this respect that the Hungarian version of the judgment under appeal must in any event be given priority, as Hungarian was the language of the case.45By their third ground of appeal, the appellants, supported by Hungary, essentially criticise the General Court for misinterpreting Article 174 TFEU in conjunction with Article 4(2) TFEU, in that it appears to have attributed an exhaustive character to the list of ‘handicaps’ in the third paragraph of Article 174 TFEU.46In particular, it is clear from the Hungarian and English language versions of that provision that the list is indicative. Although it made no express statement on the point, it may be inferred from the General Court’s finding in paragraph 86 of the judgment under appeal that the Court considered that the list was exhaustive. In any event, if the General Court were nevertheless to be regarded as implicitly accepting, in paragraph 87 of the judgment under appeal, the possibility of the list being extended, it would then have to be concluded that, by that ambiguous reasoning, the General Court infringed its obligation to state reasons.47Moreover, by concluding, also in paragraph 87 of the judgment under appeal, that it had not been shown that the ethnic, cultural, religious or linguistic characteristics of national minority regions systematically constitute a handicap for the economic development of those regions in relation to the surrounding regions, the General Court also infringed the third paragraph of Article 174 TFEU, since numerous arguments and statistics produced in the proceedings before the General Court showed that national minority regions suffer from a severe and permanent demographic handicap.48The appellants further submit that Article 3(5) of Regulation No 1059/2003 also already allows certain specific features of national minority regions to be taken into account in the context of the cohesion policy.49Hungary, agreeing essentially with those arguments, observes in particular that even now legal acts exist in EU law which take account, in the context of cohesion policy, of the characteristics mentioned in the proposed ECI at issue.50The Commission, Romania and the Slovak Republic, adopting the reasoning of the General Court criticised by the third ground of appeal, submit that this ground of appeal should be rejected as unfounded. Findings of the Court 51It should be observed, as a preliminary point, as regards the process of registering a proposed ECI, that under Article 4 of Regulation No 211/2011 it is for the Commission to examine whether the proposal satisfies the conditions for registration laid down inter alia in Article 4(2)(b) of that regulation. In accordance with Article 4(1) and (2), information relating to the subject matter and objectives of the proposed ECI, provided by the organisers of the ECI compulsorily or on an optional basis, in accordance with Annex II to that regulation, must therefore be taken into consideration (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 45).52As stated in recital 10 of that regulation, the decision on the registration of a proposed ECI, within the meaning of Article 4 of that regulation, must be taken in accordance with the principle of good administration, which entails in particular the obligation for the competent institution to conduct a diligent and impartial examination which, moreover, takes into account all the relevant features of the case (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 47).53Moreover, in accordance with the objectives pursued by an ECI, as set out in recitals 1 and 2 of Regulation No 211/2011, consisting inter alia in encouraging participation by citizens and making the European Union more accessible, the registration condition in Article 4(2)(b) of that regulation must be interpreted and applied by the Commission, when it receives a proposed ECI, in such a way as to ensure easy accessibility to ECIs (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 49).54Accordingly, it is only if a proposed ECI, in view of its subject matter and objectives as reflected in the mandatory and, where appropriate, additional information that has been provided by the organisers pursuant to Annex II to Regulation No 211/2011, manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties that the Commission is entitled to refuse to register the proposed ECI pursuant to Article 4(2)(b) of that regulation (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 50).55It is thus in the light of those principles that it must be examined whether the General Court erred in law by considering, on the basis of the assessments in paragraphs 72 to 89 of the judgment under appeal, that the Commission had been entitled to take the view that neither Articles 174 to 178 TFEU nor any other provisions of that Treaty allowed the adoption of the proposed act, and that the Commission was therefore entitled to refuse to register the proposed ECI.56It must be observed to begin with that it appears from the proposed ECI at issue, as described in more detail inter alia in paragraphs 3 and 5 to 8 of the judgment under appeal, that its objective was to ensure that, by adopting the proposed act, the European Union should in the context of its cohesion policy devote particular attention to ‘national minority regions’, namely regions whose ethnic, cultural, religious or linguistic characteristics differ from those of the surrounding regions. More specifically, the European Union was asked to take measures, on the basis inter alia of Articles 174 to 178 TFEU, of support, preservation or development in favour of such regions, or at the very least to take better account of those regions, which in the organisers’ opinion are often disadvantaged in relation to the surrounding regions.57As regards the examination carried out in the present case by the General Court in order to ascertain whether Articles 174 to 178 TFEU could serve as legal bases for those purposes, it must be observed, in the first place, that the General Court treated that question, in particular in Paragraphs 81, 85 and 87 of the judgment under appeal, referred to in the first ground of appeal, essentially as a matter of assessing the facts and evidence, laying the burden of proof in this respect on the appellants.58Thus, after stating in paragraph 80 of the judgment under appeal that the appellants’ arguments in this connection were based on claims which were in no way substantiated, nor a fortiori evidenced, the General Court found in paragraph 81 of the judgment under appeal that the appellants had not provided evidence that the implementation of the EU cohesion policy, both by the European Union and by the Member States, endangered the specific characteristics of national minority regions.59The General Court then, in paragraph 85 of the judgment under appeal, found that the appellants had also not shown that the specific ethnic, cultural, religious or linguistic characteristics of national minority regions could be regarded as a severe and permanent demographic handicap within the meaning of the third paragraph of Article 174 TFEU.60By reasoning in that way, the General Court erred in law.61First, the question whether the measure proposed in the context of an ECI falls within the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties, within the meaning of Article 4(2)(b) of Regulation No 211/2011, is prima facie not a question of fact or of the assessment of evidence subject as such to the rules on the burden of proof, but essentially a question of the interpretation and application of the relevant provisions of the Treaties.62Consequently, where the Commission receives an application for registration of a proposed ECI, it is not for it to ascertain, at that stage, that proof has been provided of all the factual elements relied on, or that the reasoning behind the proposed ECI and the proposed measures is adequate. It must confine itself to examining, for the purpose of assessing whether the condition of registration in Article 4(2)(b) of Regulation No 211/2011 is satisfied, whether from an objective point of view such measures envisaged in the abstract could be adopted on the basis of the Treaties.63It follows that, by considering that the appellants were required to demonstrate that the conditions for the adoption of the proposed act on the basis of Articles 174, 176, 177 and 178 TFEU were met in the present case, the General Court, as the Advocate General observes in substance in points 35 to 38 and 57 to 61 of his Opinion, made an incorrect assessment of the condition of registration in Article 4(2)(b) of Regulation No 211/2011 and of the distribution of tasks between the organisers of an ECI and the Commission in the ensuing registration procedure.64Such a premiss cannot be consistent with the principles set out in paragraphs 53 and 54 above, according to which the Commission, on receipt of a proposed ECI, is required to interpret and apply that condition of registration in such a way as to make an ECI more accessible and is entitled to refuse registration of a proposed ECI only if it falls manifestly outside the framework of its powers (see, to that effect, judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraphs 49 and 50).65In the second place, in so far as the appellants criticise the General Court more specifically for adopting, in particular in paragraph 86 of the judgment under appeal, an incorrect interpretation of Article 174 TFEU in conjunction with Article 4(2)(c) TFEU, it must be stated that, in paragraphs 85 to 89 of the judgment under appeal, the General Court in substance examined the question whether regions as contemplated by the proposed ECI at issue, namely national minority regions, may in the light of their characteristics be regarded as regions within the meaning of Article 174 TFEU and so be the subject of measures within the framework of the EU cohesion policy adopted under that provision.66In that context, after examining more particularly whether those characteristics, ethnic, cultural, religious or linguistic, are covered by the concept of ‘severe and permanent demographic handicap’ within the meaning of the third paragraph of Article 174 TFEU, the General Court, in paragraph 89 of the judgment under appeal, answered that question in the negative.67The General Court found, in paragraph 86 of the judgment under appeal, that it could not be deduced from the wording of the third paragraph of Article 174 TFEU or from secondary law that that concept ‘could include the specific ethnic, cultural, religious or linguistic characteristics of national minority regions’.68Article 174 TFEU admittedly describes the objectives of the cohesion policy of the European Union in general terms and gives the Union an extensive discretion as to the actions it may take in the field of economic, social and territorial cohesion, taking into account a broad concept of the regions that may be concerned by those actions.69In particular, the list in the third paragraph of Article 174 TFEU of regions ‘which suffer from severe and permanent natural or demographic handicaps’ is, as shown by the use in that provision of the expressions ‘among the regions concerned’ and ‘such as’, indicative, not exhaustive.70Nevertheless, as the General Court stated in paragraphs 87 and 89 of the judgment under appeal, the specific ethnic, cultural, religious or linguistic characteristics of national minority regions cannot be regarded as systematically constituting a handicap for economic development in relation to the surrounding regions.71Consequently, by excluding, in paragraphs 85 to 89 of the judgment under appeal, the possibility that a national minority region may because of its specific ethnic, cultural, religious or linguistic characteristics systematically form part of the ‘regions which suffer from severe and permanent natural or demographic handicaps’ within the meaning of the third paragraph of Article 174 TFEU, the General Court correctly interpreted the concept of ‘regions concerned’ in that provision, and did not therefore err in law on this point.72It follows from all the above considerations that, by finding that, for the proposed ECI at issue to be registered, the appellants were required to demonstrate that the condition in Article 4(2)(b) of Regulation No 211/2011 was satisfied, the General Court erred in law.73The appeal must therefore be allowed and the judgment under appeal consequently set aside, without it being necessary to examine additionally the other arguments raised in support of the first to third grounds of appeal or to consider the other grounds of appeal. Similarly, there is no need to rule on the admissibility or the merits of the new grounds of appeal sought to be adduced by the appellants. The dispute at first instance 74In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court sets aside the judgment of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.75In the present case, the state of the proceedings permits the Court to give final judgment.76It follows in particular from the finding in paragraph 72 above that the appellants’ plea in law alleging that the Commission infringed Article 4(2)(b) of Regulation No 211/2011 by refusing to register the proposed ECI at issue is well founded.77The decision at issue must therefore be annulled. Costs 78Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.79Under Article 138(1) of the Rules of Procedure, applicable to appeals by virtue of Article 184(1), the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.80Since the appellants have applied for costs against the Commission and the Commission has been unsuccessful, it must be ordered to pay the costs relating to the proceedings at first instance and on appeal.81In accordance with Article 184(4) of the Rules of Procedure, the interveners are to bear their own costs.On those grounds, the Court (First Chamber) hereby: 1. Sets aside the judgment of the General Court of the European Union of 10 May 2016, Iszák and Dabis v Commission (T‑529/13, EU:T:2016:282); 2. Annuls Decision C(2013) 4975 final of the Commission of 25 July 2013 concerning the application for registration of the European citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’; 3. Orders the European Commission to pay the costs relating to the proceedings at first instance and on appeal; 4. Orders Hungary, Romania and the Slovak Republic to bear their own costs. [Signatures]( *1 ) Language of the case: Hungarian. | b1bf3-e6bca8d-41b2 | EN |
Advocate General Saugmandsgaard Øe: the Audiovisual Media Services Directive does not preclude the adoption by a Member State of a measure imposing an obligation to broadcast or retransmit a foreign television channel only in packages available for an additional fee, in order to restrict the dissemination by that channel to the public of that State of information inciting hatred | 4 July 2019 ( *1 )(Reference for a preliminary ruling — Freedom to provide services — Directive 2010/13/EU — Audiovisual media services — Television broadcasting — Article 3(1) and (2) — Freedom of reception and retransmission — Incitement to hatred on grounds of nationality — Measures taken by the receiving Member State — Temporary obligation for media service providers and other persons providing services relating to the distribution of television channels or programmes via the internet to distribute or retransmit a television channel in the territory of that Member State only in pay-to-view packages)In Case C‑622/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), made by decision of 26 October 2017, received at the Court on 3 November 2017, in the proceedings Baltic Media Alliance Ltd v Lietuvos radijo ir televizijos komisija, THE COURT (Second Chamber),composed of A. Arabadjiev, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, T. von Danwitz, C. Vajda (Rapporteur) and P.G. Xuereb, Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: M. Aleksejev, head of unit,having regard to the written procedure and further to the hearing on 28 November 2018,after considering the observations submitted on behalf of:–Baltic Media Alliance Ltd, by R. Audzevičius, advokatas, and H. Stelmokaitis,Lietuvos radijo ir televizijos komisija, by A. Iškauskas and J. Nikė, advokatai,the Lithuanian Government, by K. Juodelytė, R. Dzikovič and D. Kriaučiūnas, acting as Agents,the European Commission, by A. Steiblytė, G. Braun and S.L. Kalėda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3(1) and (2) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).2The request has been made in proceedings between Baltic Media Alliance Ltd (‘BMA’) and Lietuvos radijo ir televizijos komisija (Lithuanian Radio and Television Commission) (‘the LRTK’) concerning that authority’s decision of 18 May 2016 (‘the decision of 18 May 2016’) requiring media service providers carrying on their activities in Lithuanian territory and other persons providing Lithuanian consumers with services relating to the distribution of television channels or broadcasts via the internet, for 12 months from the date on which the decision became effective, to broadcast or retransmit the channel NTV Mir Lithuania in Lithuanian territory only in pay-to-view packages. Legal context European Convention on Transfrontier Television 3Article 4 of the European Convention on Transfrontier Television, signed at Strasbourg on 5 May 1989, headed ‘Freedom of reception and retransmission’, reads as follows:‘The Parties shall ensure freedom of expression and information in accordance with Article 10 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on 4 November 1950] and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention.’ EU law Directive 89/552/EEC 4Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23) stated in its 4th, 9th, 10th and 15th recitals:‘Whereas the Council of Europe has adopted the European Convention on Transfrontier Television;…Whereas the laws, regulations and administrative measures in Member States concerning the pursuit of activities as television broadcasters and cable operators contain disparities, some of which may impede the free movement of broadcasts within the Community and may distort competition within the common market;Whereas all such restrictions on freedom to provide broadcasting services within the Community must be abolished under the Treaty;Whereas the requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Community law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States; whereas, however, the receiving Member State may, exceptionally and under specific conditions provisionally suspend the retransmission of televised broadcasts.’5Article 2(2) of that directive provided:‘Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive. Member States may provisionally suspend retransmissions of television broadcasts if the following conditions are fulfilled:…’ Directive 97/36/EC 6Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Directive 89/552 (OJ 1997 L 202, p. 60) replaced Article 2 of Directive 89/552 by a new provision and inserted in Directive 89/552 a new Article 2a, which provided in paragraphs 1 and 2:‘1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of television broadcasts from other Member States for reasons which fall within the fields coordinated by this Directive.2. Member States may, provisionally, derogate from paragraph 1 if the following conditions are fulfilled: Directive 2010/13 7Directive 2010/13 codified and replaced Directive 89/552, as amended by Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 332, p. 27). Recitals 1, 4, 5, 8, 26, 35, 36, 41, 43, 54 and 104 of Directive 2010/13 state:‘(1)Directive 89/552 … has been substantially amended several times … In the interests of clarity and rationality the said Directive should be codified.(4)In the light of new technologies in the transmission of audiovisual media services, a regulatory framework concerning the pursuit of broadcasting activities should take account of the impact of structural change, the spread of information and communication technologies (ICT) and technological developments on business models, especially the financing of commercial broadcasting, and should ensure optimal conditions of competitiveness and legal certainty for Europe’s information technologies and its media industries and services, as well as respect for cultural and linguistic diversity.(5)Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy — in particular by ensuring freedom of information, diversity of opinion and media pluralism — education and culture justifies the application of specific rules to these services.(8)It is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole.(26)For the purposes of this Directive, the definition of media service provider should exclude natural or legal persons who merely transmit programmes for which the editorial responsibility lies with third parties.(35)The fixing of a series of practical criteria is designed to determine by an exhaustive procedure that only one Member State has jurisdiction over a media service provider in connection with the provision of the services which this Directive addresses. Nevertheless, taking into account the case-law of the Court … and so as to avoid cases where there is a vacuum of jurisdiction, it is appropriate to refer to the criterion of establishment within the meaning of Articles 49 to 55 [TFEU] as the final criterion determining the jurisdiction of a Member State.(36)The requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Union law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States. However, the receiving Member State may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts.(41)Member States should be able to apply more detailed or stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with general principles of Union law. In order to deal with situations where a broadcaster under the jurisdiction of one Member State provides a television broadcast which is wholly or mostly directed towards the territory of another Member State, a requirement for Member States to cooperate with one another and, in cases of circumvention, the codification of the case-law of the Court of Justice …, combined with a more efficient procedure, would be an appropriate solution that takes account of Member State concerns without calling into question the proper application of the country of origin principle. The concept of rules of general public interest has been developed by the Court of Justice in its case-law in relation to Articles 43 and 49 [EC] (now Articles 49 and 56 [TFEU]) and includes, inter alia, rules on the protection of consumers, the protection of minors and cultural policy. The Member State requesting cooperation should ensure that the specific national rules in question are objectively necessary, applied in a non-discriminatory manner and proportionate.(43)Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict freedom of movement of television broadcasting, but only under the conditions and following the procedure laid down in this Directive. However, the Court of Justice has consistently held that any restriction on the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively …(54)Member States are free to take whatever measures they deem appropriate with regard to audiovisual media services which come from third countries and which do not satisfy the conditions laid down in Article 2, provided they comply with Union law and the international obligations of the Union.(104)Since the objectives of this Directive, namely the creation of an area without internal frontiers for audiovisual media services whilst ensuring at the same time a high level of protection of objectives of general interest, in particular the protection of minors and human dignity as well as promoting the rights of persons with disabilities, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. …’8Article 1 of Directive 2010/13, which forms part of Chapter 1, ‘Definitions’, of the directive, provides in paragraph 1(a) and (c) to (f):‘For the purposes of this Directive, the following definitions shall apply:(a)“audiovisual media service” means:(i)a service as defined by Articles 56 and 57 [TFEU] which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC [of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33)]. Such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph;(c)“editorial responsibility” means the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services. Editorial responsibility does not necessarily imply any legal liability under national law for the content or the services provided;(d)“media service provider” means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;(e)“television broadcasting” or “television broadcast” (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule;(f)“broadcaster” means a media service provider of television broadcasts.’9In accordance with Article 2(1) to (3) of Directive 2010/13:‘1. Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.2. For the purposes of this Directive, the media service providers under the jurisdiction of a Member State are any of the following:those established in that Member State in accordance with paragraph 3; …3. For the purposes of this Directive, a media service provider shall be deemed to be established in a Member State in the following cases:the media service provider has its head office in that Member State and the editorial decisions about the audiovisual media service are taken in that Member State;(b)if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the Member State where it has its head office. If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.’10Article 3(1) and (2) of that directive provides:‘1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive.2. In respect of television broadcasting, Member States may provisionally derogate from paragraph 1 if the following conditions are fulfilled:a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 27(1) or (2) and/or Article 6;during the previous 12 months, the broadcaster has infringed the provision(s) referred to in point (a) on at least two prior occasions;the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again;consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists.The Commission shall, within 2 months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Union law. If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency.’11Article 4(2) to (5) of the directive provides:‘2. In cases where a Member State:has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; andassesses that a broadcaster under the jurisdiction of another Member State provides a television broadcast which is wholly or mostly directed towards its territory;it may contact the Member State having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. On receipt of a substantiated request by the first Member State, the Member State having jurisdiction shall request the broadcaster to comply with the rules of general public interest in question. The Member State having jurisdiction shall inform the first Member State of the results obtained following this request within 2 months. Either Member State may invite the contact committee established pursuant to Article 29 to examine the case.3. The first Member State may adopt appropriate measures against the broadcaster concerned where it assesses that:the results achieved through the application of paragraph 2 are not satisfactory; andthe broadcaster in question has established itself in the Member State having jurisdiction in order to circumvent the stricter rules, in the fields coordinated by this Directive, which would be applicable to it if it were established in the first Member State.Such measures shall be objectively necessary, applied in a non-discriminatory manner and proportionate to the objectives which they pursue.4. A Member State may take measures pursuant to paragraph 3 only if the following conditions are met:it has notified the Commission and the Member State in which the broadcaster is established of its intention to take such measures while substantiating the grounds on which it bases its assessment; andthe Commission has decided that the measures are compatible with Union law, and in particular that assessments made by the Member State taking those measures under paragraphs 2 and 3 are correctly founded.5. The Commission shall decide within 3 months following the notification provided for in point (a) of paragraph 4. If the Commission decides that the measures are incompatible with Union law, the Member State in question shall refrain from taking the proposed measures.’12Under Article 6 of the directive:‘Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality.’ Lithuanian law 13Article 19(1)(3) of the Lietuvos Respublikos visuomenės informavimo įstatymas (Law of the Lithuanian Republic on the provision of information to the public) of 2 July 2006 (Žin., 2006, No 82-3254), in the version applicable to the dispute in the main proceedings (‘the Law on information for the public’), which transposed Article 6 of Directive 2010/13, provides:‘It is prohibited to distribute in the media information(3)which consists in war propaganda, incites war or hatred, ridicule or contempt, which incites discrimination, violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds of age, sex, sexual orientation, ethnic origin, race, nationality, citizenship, language, origin, social status, belief, convictions, views or religion; …’14Article 33(11) and (12) of that law provides:‘11. Bodies that retransmit television channels and other persons providing Lithuanian consumers with a service relating to the distribution on the internet of television channels and/or programmes composed of packages of channels which are retransmitted and/or distributed via the internet must comply with the rules adopted by the [LRTK] regarding the composition of packages and ensure the right of consumers to impartial information, a diversity of opinions, cultures and languages and the adequate protection of minors from the detrimental effects of public information. For a period of 12 months following the adoption of the decision referred to in paragraph 12(1) of this article, television channels on which information falling under the prohibition laid down in Article 19(1)(3) of the [present law] may be retransmitted or distributed on the internet only in pay-to-view packages, in which case those packages must not be subject to subsidisation, support or concessions of any kind, and their price may not be lower than the costs incurred by the service provider for the acquisition, retransmission and/or distribution via the internet of the channels which make up those packages.12. Where the [LRTK] establishes that, on a television channel retransmitted and/or distributed via the internet from Member States of the European Union, States of the European Economic Area and other European States that have ratified the [European Convention on Transfrontier Television] or in programmes by that channel, information falling under the prohibition laid down in Article 19(1)(1), (2) and (3) of the [present law] has been published, distributed and disseminated:(1)it shall adopt a decision to the effect that the channel in question may be distributed only in pay-to-view packages and shall inform television broadcasters and other persons providing Lithuanian consumers with a service relating to the distribution on the internet of television channels and/or programmes accordingly;(2)it shall adopt without delay the measures provided for in Article 341 of that law in order to ensure that the distribution of television channels and/or programmes complies with the requirements of that law.15Article 341(1) and (3) of the Law on information for the public transposes Article 3(1) and (2) of Directive 2010/13. Article 341(1) of that law provides that freedom of reception of audiovisual media services from, in particular, the Member States, is to be guaranteed in Lithuania. Article 341(3) of the law provides that that freedom may be ‘temporarily suspended’ where four conditions corresponding to those laid down in Article 3(2) of Directive 2010/13 are fulfilled.16According to the order for reference, a basic package is a package of television channels compiled and offered to consumers by a broadcaster or other person providing those consumers with services of distribution of television channels or programmes via the internet, in return for payment of a fixed fee. A pay-to-view package is a package of channels distributed to consumers in return for payment of an additional fee not included in the price of the basic package. The dispute in the main proceedings and the questions referred for a preliminary ruling 17BMA, a company registered in the United Kingdom, holds a licence granted by the Office of Communications (United Kingdom) to broadcast the television channel NTV Mir Lithuania.18The LRTK, pursuant to Article 33(11) and (12)(1) of the Law on information for the public, adopted the decision of 18 May 2016. That decision was based on the fact that a programme broadcast on 15 April 2016 on the channel NTV Mir Lithuania, entitled ‘Ypatingas įvykis. Tyrimas’ (Special event: investigation), contained information that incited hatred based on nationality, which was prohibited under Article 19(1)(3) of that law.19On 22 June 2016 the LRTK adopted a new decision amending the decision of 18 May 2016. It deleted the obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages, and decided to open a procedure for the temporary suspension of that channel in accordance with Article 341(3) of the Law on information for the public. In that connection, it notified BMA of the infringement found in its decision of 18 May 2016 and of the measures it intended to take if such an infringement reoccurred. The LRTK also informed the Office of Communications of the infringement.20On the same date, BMA brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking the annulment of the decision of 18 May 2016. In this connection BMA submits in particular that the decision was taken in breach of Article 3(2) of Directive 2010/13 and that it restricted the retransmission of a television channel from a Member State. The reasons stated for that restriction and the procedure followed for the adoption of the decision should thus have been consistent with that provision. However, that was not the case.21In those circumstances the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:Does Article 3(1) and (2) of Directive [2010/13] cover only cases in which a receiving Member State seeks to suspend television broadcasting and/or retransmission, or does it also cover other measures taken by a receiving Member State with a view to restricting in some other way the freedom of reception of programmes and their transmission?Must recital 8 and Article 3(1) and (2) of Directive [2010/13] be interpreted as prohibiting receiving Member States, after they have established that material referred to in Article 6 of that directive was published, transmitted for distribution and distributed in a television programme retransmitted and/or distributed via the internet from a Member State of the European Union, from taking, without the conditions set out in Article 3(2) of that directive having been fulfilled, a decision such as that provided for in Article 33(11) and (12)(1) of the Law [on information for the public], that is to say, a decision imposing an obligation on broadcasters operating in the territory of the receiving Member State and other persons providing services relating to the distribution of television programmes via the internet to ensure, on a provisional basis, that the television programme may be retransmitted and/or distributed via the internet only in television programme packages that are available for an additional fee?’ Consideration of the questions referred Admissibility 22The LRTK and the Lithuanian Government submit that the request for a preliminary ruling is inadmissible.23In the first place, they submit that the questions referred are hypothetical. Since the LRTK, on the very day that BMA brought proceedings before the referring court, amended the decision of 18 May 2016, deleted the obligation to distribute the channel NTV Mir Lithuania only in pay-to-view packages, and started a procedure for suspension in accordance with Article 3(2) of Directive 2010/13, the dispute in the main proceedings has become devoid of purpose, as BMA no longer has any interest in obtaining a declaration from the court that that decision was unlawful.24In that regard, it should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them (see, inter alia, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 18).25It also follows from that case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).26It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).27Moreover, according to settled case-law, the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited).28In the present case, the referring court stated in the order for reference that, notwithstanding the amendment to the decision of 18 May 2016 by which the LRTK withdrew the measures challenged by BMA, it will have to rule on whether the LRTK infringed BMA’s rights by that decision and whether the decision was lawful when it was adopted.29In this respect, BMA submits that the decision of 18 May 2016 was in force from 23 May to 27 June 2016, that during that period it had harmful effects for BMA, and that, when it amended the decision, the LRTK did not acknowledge its unlawfulness or remove the effects it had already produced. BMA further submits that a finding that the decision of 18 May 2016 was unlawful would in particular make it possible to avert the risk of the alleged unlawfulness reoccurring in future.30It is thus apparent that, since the LRTK’s withdrawal of the measures contested by BMA on the date of bringing the main proceedings did not give BMA satisfaction, there is indeed a dispute pending before the referring court.31In those circumstances, it is not obvious that the dispute in the main proceedings has become devoid of purpose, so that the questions submitted bear no relation to the actual facts of the main action or its purpose or concern a hypothetical problem.32In the second place, the Lithuanian Government submits that a measure imposing an obligation to distribute a television channel, for 12 months, only in pay-to-view packages, such as that at issue in the main proceedings, restricts the accessibility of that channel in national territory without thereby suspending the retransmission of an audiovisual service. Such a measure therefore falls outside the scope of Article 3(1) and (2) of Directive 2010/13 and constitutes an autonomous measure taken under national law, with the consequence that an interpretation of the provisions of that directive is not necessary.33In this respect, it must be stated that this argument does not relate to the admissibility of the request for a preliminary ruling but goes to the substance of the dispute in the main proceedings and, more particularly, is the subject of the first question referred (see, by analogy, judgment of 4 October 1991, Society for the Protection of Unborn Children Ireland, C‑159/90, EU:C:1991:378, paragraph 15).34In the light of the above considerations, the request for a preliminary ruling must be regarded as admissible. Substance Preliminary observations 35In the first place, it is appropriate to consider the argument put forward by the LRTK and the Lithuanian Government that a television channel, such as that at issue in the main proceedings, whose programmes are produced in a third State does not fall within the scope of Directive 2010/13, and cannot therefore enjoy the freedom of reception and retransmission laid down by that directive.36The Lithuanian Government submits that the programmes of the channel NTV Mir Lithuania are produced by a company established in Russia and that BMA, established in the United Kingdom, confines itself to offering a mere distribution service for that channel in Lithuanian territory, without exercising any editorial responsibility over its content.37On this point, it must be noted that Directive 2010/13, as may be seen from recital 35, lays down a series of practical criteria to determine which Member State has jurisdiction over a media service provider in connection with the provision of the services which are the subject of the directive.38In accordance with Article 2(2)(a) of Directive 2010/13, the jurisdiction of a Member State extends to media service providers within the meaning of Article 1(1)(d) of that directive who are regarded as established in that Member State in accordance with Article 2(3).39First, the concept of ‘media service provider’ is defined in Article 1(1)(d) of Directive 2010/13 as meaning the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised.40The concept of ‘editorial responsibility’ is defined in Article 1(1)(c) of that directive as ‘the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a catalogue, in the case of on-demand audiovisual media services’. It is the exercise of that control entailing the taking of editorial decisions and the consequent assumption of editorial responsibility that characterise a media service provider defined in Article 1(1)(d) of that directive.41Consequently, a natural or legal person established in a Member State assumes editorial responsibility within the meaning of Article 1(1)(c) of Directive 2010/13 for the programmes of a television channel it distributes if it selects that channel’s programmes and organises them in a chronological schedule. In that case, it is therefore a media service provider within the meaning of Article 1(1)(d) of that directive.42On the other hand, as follows from recital 26 of Directive 2010/13, the definition of a media service provider excludes natural or legal persons who merely distribute programmes for which third parties have editorial responsibility.43As regards the various factors to be taken into account in this respect, the fact that the person in question has been licensed by the regulatory body of a Member State, while it may be an indication that that person has assumed editorial responsibility for the programmes of the channel he distributes, cannot — as the Advocate General observes in point 40 of his Opinion — be decisive, since the EU legislature did not harmonise in Directive 2010/13 the grant of licences or administrative authorisations for the provision of audiovisual media services. It must additionally be assessed whether the person has power to make a final decision as to the audiovisual offer as such, which presupposes that he has sufficient material and human resources available to him to be able to assume such responsibility, as the Advocate General observes in points 43 to 45 of his Opinion.44Second, Article 2(3)(a) to (c) of Directive 2010/13 sets out the cases in which a media service provider is regarded as established in a Member State, and consequently falls within the scope of that directive.45It follows from Article 2(3)(a) of Directive 2010/13 that a media service provider is regarded as established in a Member State if it has its head office in that Member State and ‘the editorial decisions about the audiovisual service are taken in that Member State’.46Consequently, for the purposes of determining whether a natural or legal person falls within the scope of Directive 2010/13, in accordance with Article 2(3)(a) of that directive, it must be ascertained not only whether the person in question who assumes editorial responsibility for the audiovisual media services provided has his head office in a Member State, but also whether the editorial decisions relating to those services are taken in that Member State.47While that is a question of fact which is for the referring court to assess, the Court may nevertheless provide that court with the points of interpretation of EU law which it requires in order to decide the dispute before it.48For the purposes of the assessment referred to in paragraph 46 above, it must be ascertained whether the editorial decisions about the audiovisual media services mentioned in paragraph 40 above are taken in the Member State in whose territory the media service provider concerned has its head office.49It should be noted, in this connection, that the place where those editorial decisions relating to the audiovisual media services are taken is also of relevance for the application of the material criteria laid down in Article 2(3)(b) and (c) of Directive 2010/13.50In that respect, it follows from the first sentence of Article 2(3)(b) of Directive 2010/13 that ‘if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates’. In addition, Article 2(3)(c) of that directive provides that ‘if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State’.51Moreover, as may be seen from the wording of Article 2(3)(b) and Article 2(3)(c) of Directive 2010/13, the place of the head office of the media service provider and the place where the workforce involved in the pursuit of those services operates are also relevant for the application of those provisions.52It follows from the observations in paragraphs 38 to 51 above that the exercise of editorial responsibility with respect to audiovisual media services characterises a provider of those services within the meaning of Article 1(1)(d) of Directive 2010/13. Moreover, the place where a media service provider has its head office and the place where the editorial decisions about those services are taken, and also, as the case may be, the place where the workforce involved in the pursuit of those services operates, are relevant criteria for ascertaining whether the provider is established in a Member State pursuant to Article 2(3) of that directive, with the result that the services it provides fall within the scope of the directive. On the other hand, the fact that the programmes of a television channel distributed in the territory of a Member State may be produced in a third country is of no relevance for that purpose.53In the second place, it is appropriate to consider the Lithuanian Government’s argument that Lithuanian legislation should be applied because the channel NTV Mir Lithuania is directed exclusively towards Lithuanian territory and BMA became established in a Member State other than the Republic of Lithuania with the intent of circumventing that legislation.54On this point, it suffices to note that Article 4(2) to (5) of Directive 2010/13 provides for a special procedure to regulate situations in which a broadcaster under the jurisdiction of one Member State provides a television broadcast which is wholly or mostly directed towards the territory of another Member State. Subject to compliance with the conditions and procedure laid down by that provision, the receiving Member State may apply to such a broadcaster its rules of general public interest or other stricter rules in the fields coordinated by that directive.55In the present case, however, it is common ground that the LRTK did not follow that procedure for the adoption of the decision of 18 May 2016.56Accordingly, neither the fact that the programmes of the channel NTV Mir Lithuania may be produced in a third country nor, since the Republic of Lithuania did not comply with the special procedure provided for by Directive 2010/13, the fact that that channel, whose provider is established in another Member State, is directed exclusively towards Lithuanian territory dispenses the Republic of Lithuania from applying that directive. Question 1 57By its first question, the referring court asks in substance whether Article 3(1) and (2) of Directive 2010/13 must be interpreted as meaning that a public policy measure adopted by a Member State, consisting in an obligation for media service providers whose programmes are directed towards the territory of that Member State and for other persons providing consumers of that Member State with services relating to the distribution of television channels or programmes via the internet to distribute or retransmit in the territory of that Member State, for a period of 12 months, a television channel from another Member State only in pay-to-view packages, is covered by that provision.58The Court’s answer to that question is founded on the premiss that BMA, to which the measures at issue in the main proceedings are addressed, is a media service provider established in a Member State other than the Republic of Lithuania, namely the United Kingdom of Great Britain and Northern Ireland, falling within the scope of Directive 2010/13 in accordance with Articles 1 and 2 of that directive, which is for the referring court to ascertain, taking into account the indications in paragraphs 37 to 52 above.59On the other hand, in so far as other persons providing Lithuanian consumers with services relating to the distribution of television channels or programmes via the internet do not have the status of ‘media service provider’ within the meaning of Article 1(1)(d) of Directive 2010/13, they are not covered by Article 3(1) and (2) of that directive.60Moreover, it should be noted that a media service provider established in Lithuania is subject to the jurisdiction of that Member State, as follows from Article 2 of Directive 2010/13, so that Article 3(1) and (2) of that directive does not apply to that provider.61In order to answer Question 1, it must be recalled that Article 3(1) of Directive 2010/13 provides that Member States are to ensure freedom of reception and not to restrict retransmissions in their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by that directive, among which are the measures against incitement to hatred referred to in Article 6 of the directive. As regards television broadcasting, Article 3(2) of the directive nonetheless allows Member States to derogate provisionally from Article 3(1), subject to a number of substantive and procedural conditions.62According to the order for reference, BMA on the one hand, and the LRTK and the Lithuanian Government on the other, are in disagreement as to the scope of Article 3(1) and (2) of Directive 2010/13. While BMA argues that that provision refers to any restriction by the receiving Member State of the freedom of reception and retransmission of television programmes, restriction being understood as a restriction within the meaning of Article 56 TFEU, the LRTK and the Lithuanian Government take the view that that provision covers only cases of the complete suspension of reception and retransmission of television programmes.63According to settled case-law of the Court, when a provision of EU law is being interpreted, account must be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole. The origin of a provision of EU law may also contain factors relevant to its interpretation (see, inter alia, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 50).64As regards, first, the wording of Article 3(1) and (2) of Directive 2010/13, that does not in itself allow the nature of the measures covered by the provision to be determined.65As regards, second, the context of Article 3(1) and (2) of Directive 2010/13 and the objectives of the directive, it must be noted — as the Advocate General does in point 59 of his Opinion — that, while that directive gives expression to the freedom to provide services guaranteed in Article 56 TFEU in the field of audiovisual media services by introducing, as stated in recital 104, ‘an area without internal frontiers’ for those services, account is taken at the same time, as stated in recital 5, of the cultural as well as economic nature of those services and their importance for democracy, education and culture, justifying the application of specific rules to those services.66Furthermore, it followed from the 9th and 10th recitals of Directive 89/552 that the restrictions the EU legislature intended to abolish were those resulting from disparities between the provisions of the Member States concerning the pursuit of broadcasting activities and the distribution of television programmes. The fields coordinated by that directive were thus coordinated only in so far as television broadcasting proper, as defined in Article 1(a) of that directive, was concerned (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraphs 31 and 32).67It follows from recitals 1 and 4 of Directive 2010/13 that that directive codifies Directive 89/552 in the light of new technologies in the transmission of audiovisual media services. Consequently, the fields coordinated by Directive 2010/13 are coordinated only with respect to the provision of audiovisual media services as such.68As regards, third, the origin of Article 3 of Directive 2010/13, it must be observed that in its original version the second sentence of the first subparagraph of Article 2(2) of Directive 89/552 mentioned the right of Member States provisionally to ‘suspend’ retransmissions of television broadcasts if the conditions stated were fulfilled. Although the EU legislature, when Directive 89/552 was amended by Directive 97/36, introduced a new Article 2a, the first subparagraph of paragraph 2 of which reproduced in substance the original wording of the second sentence of the first subparagraph of Article 2(2) of Directive 89/552, while replacing the verb ‘suspend’ by the verb ‘derogate’, there is — as the Advocate General observes in point 57 of his Opinion — no indication in the preamble to Directive 97/36 that, by that amendment, the EU legislature intended to reconsider the nature of the measures covered. On the contrary, the 15th recital of Directive 89/552 continued despite that amendment to mention the receiving Member State’s power to ‘provisionally suspend the retransmission of televised broadcasts’, that power now being mentioned in recital 36 of Directive 2010/13.69It should also be observed that the European Convention on Transfrontier Television, which was drawn up at the same time as Directive 89/552 and to which the fourth recital of that directive refers, requires in Article 4, which contains a similar provision to Article 3(1) of Directive 2010/13, that the parties to the convention shall ‘guarantee freedom of reception’ and ‘not restrict the retransmission’ in their territory of services which are within the scope of the convention and comply with its terms.70The fact that the EU legislature, in the wording of Article 3(1) of Directive 2010/13, took its lead from Article 4 of the European Convention on Transfrontier Television suggests that the terms ‘freedom of reception’ and ‘restrict’ have a specific meaning in that directive that is narrower than that of the concept of ‘restrictions on freedom to provide services’ in Article 56 TFEU.71In this connection, it should be noted that the Court has held, in relation to Directive 89/552 as amended by Directive 97/36, Article 2a(1) and (2) of which corresponds in substance to Article 3(1) and (2) of Directive 2010/13, that Directive 89/552 established the principle of recognition by the receiving Member State of the control function of the originating Member State with respect to the audiovisual media services of providers falling within its jurisdiction (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 35).72The Court held in that respect that it is solely for the Member State from which audiovisual media services emanate to monitor the application of the law of the originating Member State applicable to those services and to ensure compliance with Directive 89/552 as amended by Directive 97/36, and that the receiving Member State is not authorised to exercise its own control for reasons which fall within the fields coordinated by that directive (see, to that effect, judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV, C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 36 and the case-law cited).73On the other hand, Directive 2010/13 does not in principle preclude the application of national rules with the general aim of pursuing an objective of general interest, provided that they do not involve a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out (see, to that effect, judgment of 9 July 1997, De Agostini and TV-Shop, C‑34/95 to C‑36/95, EU:C:1997:344, paragraph 34).74It follows from the judgment of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344), that a national measure pursuing an objective of general interest which regulates certain aspects of the broadcasting or distribution of audiovisual media services does not fall within Article 3(1) and (2) of Directive 2010/13, unless it introduces a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out.75The Court stated in paragraph 50 of the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607), that legislation of a Member State which does not specifically concern the broadcast and distribution of programmes and which, in general, pursues a public policy objective, without however preventing retransmission as such, on its territory, of audiovisual media services from another Member State does not fall within Directive 89/552 as amended by Directive 97/36.76However, paragraph 50 of the judgment of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607), should not be interpreted as meaning that a national measure constitutes a restriction within the meaning of Article 3(1) of Directive 2010/13 where the legislation on the basis of which it is adopted regulates certain aspects of the broadcasting or distribution of audiovisual media services, such as the ways in which those services are broadcast or distributed.77A national measure does not constitute such a restriction if, in general, it pursues a public policy objective and regulates the methods of distribution of a television channel to consumers of the receiving Member State, where those rules do not prevent the retransmission as such of that channel. Such a measure does not introduce a second control of the channel’s broadcasts in addition to that which the broadcasting Member State is required to carry out.78As regards the measure at issue in the main proceedings, first, according to the observations submitted by the LRTK and the Lithuanian Government, by adopting Article 33(11) and (12)(1) of the Law on information for the public, on the basis of which the decision of 18 May 2016 was taken, the national legislature intended to combat the active distribution of information discrediting the Lithuanian State and threatening its status as a State in order, having regard to the particularly great influence of television on the formation of public opinion, to protect the security of the Lithuanian information space and guarantee and preserve the public interest in being correctly informed. The information referred to in that provision is the information covered by the prohibition in Article 19 of that law, which includes material inciting the overthrow by force of the Lithuanian constitutional order, inciting attacks on the sovereignty of the Republic of Lithuania, its territorial integrity and its political independence, consisting in war propaganda, inciting war or hatred, ridicule or contempt, or inciting discrimination, violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds inter alia of nationality.79In its observations before the Court, the LRTK stated that the decision of 18 May 2016 had been taken on the ground that a programme broadcast on the channel NTV Mir Lithuania contained false information which incited hostility and hatred based on nationality against the Baltic countries concerning the collaboration of Lithuanians and Latvians in connection with the Holocaust and the allegedly nationalistic and neo-Nazi internal policies of the Baltic countries, policies which were said to be a threat to the Russian national minority living in those countries. That programme was addressed, according to the LRTK, in a targeted manner to the Russian-speaking minority in Lithuania and aimed, by the use of various propaganda techniques, to influence negatively and suggestively the opinion of that social group relating to the internal and external policies of the Republic of Lithuania, the Republic of Estonia and the Republic of Latvia, to accentuate the divisions and polarisation of society, and to emphasise the tension in the Eastern European region created by Western countries and the Russian Federation’s role of victim.80It does not appear from the documents before the Court that those statements are contested, which is, however, for the referring court to ascertain. On that basis, a measure such as that at issue in the main proceedings must be regarded as pursuing, in general, a public policy objective.81Second, the LRTK and the Lithuanian Government stated in their written observations that the decision of 18 May 2016, which requires media service providers whose broadcasts are directed towards Lithuanian territory and other persons providing Lithuanian consumers with services relating to the distribution of television channels or broadcasts via the internet, for a period of 12 months, to broadcast or retransmit the channel NTV Mir Lithuania in that territory only in pay-to-view packages, governs exclusively the methods of distribution of that channel to Lithuanian consumers. At the same time, it is common ground in the main proceedings that the decision of 18 May 2016 does not suspend or prohibit the retransmission of that channel in Lithuanian territory, since, despite that decision, it can still be distributed legally in that territory and Lithuanian consumers can still view it if they subscribe to a pay-to-view package.82Consequently, a measure such as that at issue in the main proceedings does not restrict the retransmission as such in the territory of the receiving Member State of television programmes from another Member State of the television channel to which that measure is directed.83Such a measure is not therefore covered by Article 3(1) and (2) of Directive 2010/13.84In the light of all the above considerations, the answer to Question 1 is that Article 3(1) and (2) of Directive 2010/13 must be interpreted as meaning that a public policy measure adopted by a Member State, consisting in an obligation for media service providers whose programmes are directed towards the territory of that Member State and for other persons providing consumers of that Member State with services relating to the distribution of television channels or programmes via the internet to distribute or retransmit in the territory of that Member State, for a period of 12 months, a television channel from another Member State only in pay-to-view packages, without however restricting the retransmission as such in the territory of the first Member State of the television programmes of that channel, is not covered by that provision. Question 2 85In view of the answer to Question 1, there is no need to answer Question 2. Costs 86Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: Article 3(1) and (2) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) must be interpreted as meaning that a public policy measure adopted by a Member State, consisting in an obligation for media service providers whose programmes are directed towards the territory of that Member State and for other persons providing consumers of that Member State with services relating to the distribution of television channels or programmes via the internet to distribute or retransmit in the territory of that Member State, for a period of 12 months, a television channel from another Member State only in pay-to-view packages, without however restricting the retransmission as such in the territory of the first Member State of the television programmes of that channel, is not covered by that provision. [Signatures]( *1 ) Language of the case: Lithuanian. | c0b0d-89ee0e0-424f | EN |
Advocate General Pitruzzella proposes that the Court rule that an e-commerce platform such as Amazon cannot be obliged to make a telephone number available to consumers | 10 July 2019 ( *1 )(Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(c) — Information requirements for distance and off‑premises contracts — Obligation, for a trader, to indicate its telephone number and its fax number ‘where they are available’ — Scope)In Case C‑649/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 5 October 2017, received at the Court on 21 November 2017, in the proceedings Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl, THE COURT (First Chamber),composed of J.-C. Bonichot, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the First Chamber, C. Toader, L. Bay Larsen and M. Safjan (Rapporteur), Judges,Advocate General: G. Pitruzzella,Registrar: R. Şereş, administratrice,having regard to the written procedure and further to the hearing on 22 November 2018,after considering the observations submitted on behalf of:–the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV, by J. Kummer and P. Wassermann, Rechtsanwälte,Amazon EU Sàrl, by C. Rohnke, Rechtsanwalt,the German Government, initially by T. Henze and M. Hellmann, and subsequently by M. Hellmann and U. Bartl, acting as Agents,the French Government, by J. Traband and A.-L. Desjonquères, acting as Agents,the European Commission, by C. Hödlmayr and N. Ruiz García and by C. Valero, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 6(1)(c) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).2The request has been made in the context of proceedings between the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV (Federal Union of Consumer Organisations and Associations, Germany) (‘the Federal Union’) and Amazon EU Sàrl concerning an application for an injunction brought by the Federal Union, relating to Amazon EU practices for the display of information allowing consumers to contact that company. Legal context European Union law 3Recitals 4, 5, 7, 12, 21 and 34 of Directive 2011/83 state:‘(4)… The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises …(5)… The full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market.…(7)Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union.(12)The information requirements provided for in this Directive should complete the information requirements of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [(OJ 2006 L 376, p. 36)] and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) [(OJ 2000 L 178, p. 1)]. Member States should retain the possibility to impose additional information requirements applicable to service providers established in their territory.(21)… In an off-premises context, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. …(34)The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance or off-premises contract, a contract other than a distance or an off-premises contract, or any corresponding offer. In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.’4According to Article 1 of Directive 2011/83, entitled ‘Subject matter’:‘The purpose of this Directive is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders.’5Article 2 of that directive, entitled ‘Definitions’, provides:‘For the purpose of this Directive, the following definitions shall apply:“distance contract” means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;(8)“off-premises contract” means any contract between the trader and the consumer:(a)concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;(b)for which an offer was made by the consumer in the same circumstances as referred to in point (a);(c)concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or(d)concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;…’6Article 4 of that directive, entitled ‘Level of harmonisation’, provides:‘Member States may decide not to apply this Directive or not to maintain or introduce corresponding national provisions to off-premises contracts for which the payment to be made by the consumer does not exceed EUR 50. Member States may define a lower value in their national legislation.’7Chapter II of Directive 2011/83, entitled ‘Consumer information for contracts other than distance or off-premises contracts’, contains Article 5 thereof.8Under Article 5, entitled ‘Information requirements for contracts other than distance or off-premises contracts’:‘1. Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number;4. Member States may adopt or maintain additional pre-contractual information requirements for contracts to which this Article applies.’9Chapter III of Directive 2011/83, entitled ‘Consumer information and right of withdrawal for distance and off-premises contracts’, contains Articles 6 to 16 thereof.10Article 6 of that directive, entitled ‘Information requirements for distance and off-premises contracts’, provides:‘1. Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the trader on whose behalf he is acting;4. The information referred to in points (h), (i) and (j) of paragraph 1 may be provided by means of the model instructions on withdrawal set out in Annex I(A). The trader shall have fulfilled the information requirements laid down in points (h), (i) and (j) of paragraph 1 if he has supplied these instructions to the consumer, correctly filled in.5. The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract and shall not be altered unless the contracting parties expressly agree otherwise.8. The information requirements laid down in this Directive are in addition to information requirements contained in [Directive 2006/123] and [Directive 2000/31] and do not prevent Member States from imposing additional information requirements in accordance with those Directives.Without prejudice to the first subparagraph, if a provision of [Directive 2006/123] or [Directive 2000/31] on the content and the manner in which the information is to be provided conflicts with a provision of this Directive, the provision of this Directive shall prevail.11Article 21 of Directive 2011/83, entitled ‘Communication by telephone’, provides, in paragraph 1 thereof:‘Member States shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate.’12Annex I to that directive, entitled ‘Information concerning the exercise of the right of withdrawal’, includes a part A, entitled ‘Model instructions on withdrawal’ and a part B, entitled ‘Model withdrawal form’.13Part A of that annex provides in particular the instructions which must be followed by traders in order to communicate to consumers standard information relating to its right of withdrawal and, more particularly, the following instruction:‘Insert your name, geographical address and, where available, your telephone number, fax number and e-mail address.’14Part B of that annex contains an entry worded as follows:‘To [here the trader’s name, geographical address and, where available, his fax number and e-mail address are to be inserted by the trader].’ German law 15Paragraph 312d(1) of the Bürgerliches Gesetzbuch (German Civil Code), entitled ‘Information requirements’, provides:‘Under off-premises and distance contracts, traders shall be required to provide information to consumers in accordance with the provisions of Paragraph 246a of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Law to the Civil Code) (‘the EGBGB’). The information provided by traders in fulfilment of that obligation constitutes an integral part of the contract, except where otherwise expressly agreed by the parties.’16Article 246a of the EGBGB, entitled ‘Information requirements for off-premises contracts and distance contracts, with the exception of contracts relating to financial services’, provides, in point 2 of the first sentence of paragraph 1(1) thereof:‘The trader shall, pursuant to Paragraph 312d(1) of the [Civil Code], provide the consumer with the following information:2.his identity, such as his trading name, the geographical address at which he is established and his telephone number and, where available, his fax number and email address and, where applicable, the geographical address and identity of the trader on whose behalf he is acting.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 17Amazon EU operates in particular the website www.amazon.de, offering the online sale of various products.18By making an order on that website, consumers had the possibility, in August 2014, before completing their order, to click on an electronic link marked ‘Contact us’. Consumers thus reached a web page where, under the heading ‘Contact us’, was a link ‘How would you like to contact us?’, they had the choice between three options: namely, to send an email, to make contact by telephone or to start an online conversation by way of chat. By contrast, that page did not provide a fax number. If the consumer chose the option of making contact by telephone, another web page opened, on which he had the possibility to provide his telephone number and to be called back. The same page also contained the information: ‘If you prefer, you can also call our general helpline’. The link ‘general helpline’ opened a window showing Amazon EU’s telephone numbers and containing the following text:‘General helplinePlease note: We instead recommend using the function “Call me now” to obtain assistance quickly. Based on the information you have already provided, we will be able to help you straightaway.Should you prefer to call the general helpline, please bear in mind that you will have to answer a series of questions to confirm your identity.Should you wish to contact us via conventional means, you can also reach us at the following telephone numbers: …’19Under the heading ‘Imprint’, included on the www.amazon.de website, consumers could also reach the page with the option to have someone call them back by clicking on the ‘Contact us’ icon.20The Federal Union considered that Amazon EU did not respect its legal obligation to provide consumers with effective means to enter into contact with it, in so far as it did not inform consumers to the requisite legal standard of its telephone and fax numbers. Moreover, the Federal Union considered that Amazon EU did not indicate a telephone number in a clear and comprehensible manner and that the callback service did not fulfil the information requirements, since consumers have to undertake a number of steps to make contact with that company.21The Federal Union brought an application for an injunction before the Landgericht Köln (Regional Court, Cologne, Germany) relating to Amazon EU practices for the display of information on its website.22Since that court dismissed that application for an injunction by a judgment of 13 October 2015, the Federal Union lodged an appeal against that decision before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany).23By judgment of 8 July 2016, the Oberlandesgericht Köln (Higher Regional Court, Cologne) dismissed the appeal brought by the Federal Union. To that end, that court considered that Amazon EU fulfilled the pre-contractual information requirements by offering consumers sufficient possibilities for communication, as a result of its callback system and the possibility to contact it by chat or by email.24In those circumstances, the Federal Union brought an appeal on a point of law (Revision) before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany).25The referring court considers that, in order to resolve the dispute before it, it is necessary inter alia to specify the scope of the expression ‘lorsqu’ils sont disponibles’, ‘gegebenfalls’ or ‘where available’, included in Article 6(1)(c) of Directive 2011/83, respectively in the French, German and English versions of that provision.26In that regard, it is apparent from a European Commission guidance document, published in June 2014, concerning Directive 2011/83, that that expression applies to the three means of distance communication referred to in Article 6(1)(c) of that directive, namely the telephone, fax and email.27Therefore, according to the referring court, the information which traders must provide is that in relation only to means of communication already existing within their undertaking. By contrast, they are not required to establish a new telephone or fax line, or to create a new email address, where they decide also to conclude distance contracts.28In that context, the question is raised whether traders who, while having means of communication such as the telephone, fax and an email address, use them however only for communication with other traders or the authorities, are required, under Article 6(1)(c) of Directive 2011/83, to provide information about those communication methods when entering into distance contracts with consumers.29If that is so, traders who begin a new activity consisting in concluding distance contracts with consumers would be required to change their business organisation and to employ new employees, which would be likely to undermine their freedom to conduct a business, enshrined in Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).30Moreover, such an interpretation would conflict with the objective of Directive 2011/83, stated in recital 4 thereof, which consists in striking the right balance between a high level of consumer protection and the competitiveness of enterprises.31In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)May Member States enact a provision that — like the provision in Article 246a(1)(1), first sentence, No 2, of the EGBGB (Introductory Law to the Civil Code) — obliges a trader to make his telephone number available to the consumer (not just where available but) always when entering into distance contracts prior to acceptance of the contract?(2)Does the expression “gegebenenfalls” (meaning “where available”) used in the German language-version of Article 6(1)(c) of Directive 2011/83 mean that traders must, if they decide to enter into distance contracts, provide information solely about the means of communication that are already actually available within their business, and that they are therefore not required to set up a new telephone or fax connection or email account?(3)If the second question is answered in the affirmative:Does the expression “gegebenenfalls” (meaning “where available”) used in the German language-version of Article 6(1)(c) of Directive 2011/83 refer solely to the means of communication that are already available in the business and are actually used by the trader for communication with consumers when entering into distance contracts, or does it also refer to means of communication that are available in the business but have hitherto been used by the trader exclusively for other purposes, such as to communicate with other traders or authorities?(4)Is the list of means of communication (telephone, fax and email) set out in Article 6(1)(c) of [that] directive …, [namely the] telephone, fax and [the] email address, exhaustive, or may traders also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that they ensure rapid contact and efficient communication?Does the application of the transparency requirement of Article 6(1) of [that] directive …, according to which the trader must inform the consumer of the communication methods set out in Article 6(1)(c) of Directive 2011/83 in a clear and comprehensible manner, depend on the information being supplied quickly and efficiently?’ Consideration of the questions referred 32By its questions, which should be examined together, the referring court asks, in essence, whether Article 6(1)(c) of Directive 2011/83 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires traders, before concluding distance and off-premises contracts with consumers covered by Article 2(7) and (8) of that directive, to provide, in all circumstances, their telephone number, and whether that provision obliges traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them. The referring court also wishes to know whether those traders may, in circumstances such as those in the main proceedings, make use of means of communication which are not mentioned in that provision, such as instant messaging or a telephone callback system.33First of all, it should be noted that, according to Article 6(1)(c) of Directive 2011/83, before the consumer is bound by a distance or off-premises contract or any corresponding offer, the trader is to provide him, in a clear and comprehensible manner, with information about the geographical address where the trader is established and the latter’s telephone number, fax number and email address, where they are available, in order to allow the consumer to contact it quickly and communicate with it efficiently and, where appropriate, the geographical address and identity of the trader on whose behalf he is acting.34It is apparent in particular from the request for a preliminary ruling and from the comments presented by the parties to the main proceedings and the other interested parties in the present case, that two interpretations of the wording of Article 6(1)(c) of Directive 2011/83 are possible. Firstly, that provision could be read as providing for an obligation, for traders, to inform consumers of their telephone number and fax number in the event that those numbers are available to those traders. Secondly, that provision imposes such an obligation on traders solely if the latter uses the telephone or fax in its contacts with consumers.35It must be noted that the wording of that provision and, more particularly, the expression ‘where available’ contained in it, does not, in itself, allow the exact scope of that provision to be determined.36That issue is not resolved by the analysis of different language versions of Article 6(1)(c) of Directive 2011/83. Although the majority of those versions, in particular the versions in English (‘where available’), French (‘lorsqu’ils sont disponibles’), Dutch (‘indien beschikbaar’), Italian (‘ove disponibili’), Polish (‘o ile jest dostępny’) and Finnish (‘jos nämä ovat käytettävissä’) suggest that, under that provision, the obligation imposed on traders to inform consumers of their telephone and fax numbers applies only where those traders have such means of communication, the fact remains that other versions of that provision, in particular those in Spanish (‘cuando proceda’) and German (‘gegebenenfalls’), do not allow the circumstances to be determined in which that obligation does not apply.37It is therefore necessary to interpret that provision by reference to the context in which it occurs and the objectives pursued by the rules of which it is part (see, by analogy, judgments of 24 January 2019, Balandin and Others, C‑477/17, EU:C:2019:60, paragraph 31, and of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 45).38As regards, in the first place, the context of Article 6(1)(c) of Directive 2011/83 and the general scheme of that directive, it should be noted that that provision provides for an obligation to provide pre-contractual information in relation to distance and off-premises contracts referred to in Article 2(7) and (8) of that directive.39As regards, secondly, the objective of Directive 2011/83, as follows from Article 1 thereof, read in conjunction with recitals 4, 5 and 7, that directive seeks to provide a high level of consumer protection by ensuring that consumers are informed and secure in transactions with traders. Moreover, the protection of consumers within EU policies is set out in Article 169 TFEU and in Article 38 of the Charter.40Directive 2011/83 seeks to afford consumers extensive protection by conferring on them a number of rights in relation to, inter alia, distance and off-premises contracts (see, to that effect, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 35).41In particular, it should be noted that the possibility, for consumers, to contact traders quickly and to communicate with them efficiently, as provided for in Article 6(1)(c) of Directive 2011/83, is of fundamental importance for ensuring and effectively implementing consumer rights and, in particular, the right of withdrawal, the detailed arrangements and conditions for the exercise of which are set out in Articles 9 to 16 of that directive.42That is moreover the reason why part A, entitled ‘Model instructions on withdrawal’, partly reproduced in part B, entitled ‘Model withdrawal form’, which is included in Annex I to Directive 2011/83, provides for the indication of the geographical address of the trader and, where they are available, his telephone and fax numbers and his email address.43With this in mind, Article 6(1) of Directive 2011/83 seeks to ensure the communication to consumers, before the conclusion of a contract, both of information concerning the contractual terms and the consequences of that conclusion, allowing consumers to decide whether they wish to be contractually bound to a trader (see, to that effect, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 36), and of information necessary for proper performance of that contract and, in particular, for the exercise of their rights, in particular the right of withdrawal (see, by analogy, judgment of 5 July 2012, Content Services, C‑49/11, EU:C:2012:419, paragraph 34).44In that regard, although it is true that the possibility for consumers to contact traders quickly and to communicate efficiently with them, as provided for by Article 6(1)(c) of Directive 2011/83, is of crucial importance for protecting their rights, as has been noted in paragraph 41 of the present judgment, the fact remains that, in interpreting that provision, it is necessary to ensure the right balance between a high level of consumer protection and the competitiveness of undertakings, as is stated in recital 4 of that directive, while respecting the undertaking’s freedom to conduct a business, as set out in Article 16 of the Charter (see, by analogy, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraphs 41 and 42).45It should be noted in that context that, by adopting the provisions of Directive 2011/83 and in particular Article 6(1)(c) thereof, the Union legislature considered, as is stated in recital 34 of that directive, that where traders provide pre-contractual information, they should take account of the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee.46It follows from the foregoing that although Article 6(1)(c) of Directive 2011/83 does not determine the precise nature of the means of communication which must be established by traders, that provision necessarily requires traders to put at the disposal of all consumers a means of communication which allows the latter to contact them quickly and to communicate with them efficiently.47It is for the referring court to assess whether, in the light of all the circumstances in which consumers make contact with traders through a website and in particular of the presentation and functionality of that site, the means of communication made available to those consumers by those traders allow consumers to contact traders quickly and to communicate with them efficiently, in accordance with Article 6(1)(c) of Directive 2011/83.48Moreover, an unconditional obligation to provide consumers, in all circumstances, with a telephone number, or even to put in place a telephone or fax line, or to create a new email address in order to allow consumers to contact traders seems to be disproportionate, in particular in the economic context of the functioning of certain undertakings, in particular small undertakings, which might seek to reduce their operating costs by organising sales or the provision of services at a distance or off-premises.49Furthermore, Article 5(1)(b) of Directive 2011/83 on information obligations imposed on traders in the context of the conclusion of distance or off-premises contracts, unequivocally provides that traders must provide consumers, before the latter are bound by such a contract or any corresponding offer, ‘the following information in a clear and comprehensible manner, if that information is not already apparent from the context: … the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number’. It follows therefrom that if the intention of the EU legislature had been to confer on the obligation to provide details of their telephone numbers, imposed on traders by Article 6(1)(c) of that directive, the same scope as that unequivocally imposed on those traders under Article 5(1)(b) of that directive, it seems plausible that it would have adopted the same wording.50Finally, as is stated by the Advocate General in point 76 of his Opinion, Article 21 of Directive 2011/83, which requires Member States not to allow traders who operate a telephone line for the purpose of contacting consumers to charge more than the basic call rate when consumers contact them in relation to a concluded contract, also supports an interpretation of Article 6(1)(c) of Directive 2011/83 according to which the use, by traders, of the telephone as a means of communicating with consumers in the context of distance contracts is also not imposed in the context of a pre-contractual relationship.51In the light of the foregoing considerations, it is necessary to interpret the words ‘where available’ provided for in Article 6(1)(c) of Directive 2011/83 as covering cases where traders have a telephone or fax number and do not use them solely for purposes other than contacting consumers. In the absence thereof, that provision does not impose on traders the obligation to inform consumers of that telephone number, to provide a telephone or fax line, or to create a new email address to allow consumers to contact them.52Furthermore, it must be noted that that provision does not preclude traders from providing other means of communication than by telephone, fax or email in order to satisfy the criteria of direct and effective communication, such as, in particular, an electronic enquiry template, by means of which consumers can contact traders by means of a website and receive a written response or can be quickly called back. More particularly, it does not preclude traders offering goods or services online and which have a telephone number available in a few clicks from encouraging the use, by consumers, of other means of communication which are not mentioned in that provision, such as instant messaging or a telephone callback system, to allow consumers to contact them quickly and to communicate with them efficiently, in so far as the information that traders are obliged to provide under Article 6(1)(c) of Directive 2011/83, and in particular that telephone number, is made accessible in a clear and comprehensible manner, which it is for the referring court to verify. In that regard, the fact that the telephone number is available only following a series of clicks does not, in itself, mean that the manner used is not clear and comprehensible, regarding a situation such as that in the dispute in the main proceedings, which concerns a trader offering the online sale of various goods, exclusively by means of a website.53Having regard to all the foregoing considerations, the answer to the questions referred is that:Article 6(1)(c) of Directive 2011/83 must be interpreted as, firstly, precluding national legislation, such as that at issue in the main proceedings, which imposes on traders, before concluding a distance or off-premises contract referred to in Article 2(7) and (8) of that directive, to provide, in all circumstances, their telephone number. Secondly, that provision does not imply an obligation for traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them and requires that number, the fax number or their email address to be communicated only where those traders already have those means of communication with consumers;Article 6(1)(c) of Directive 2011/83 must be interpreted as meaning that, although that provision requires traders to make available to consumers a means of communication capable of satisfying the criteria of direct and effective communication, it does not preclude those traders from providing other means of communication than those listed in that provision in order to satisfy those criteria. Costs 54Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: Article 6(1)(c) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as, firstly, precluding national legislation, such as that at issue in the main proceedings, which imposes on traders, before concluding a distance or off-premises contract referred to in Article 2(7) and (8) of that directive, to provide, in all circumstances, their telephone number. Secondly, that provision does not imply an obligation for traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them and requires that number, the fax number or their email address to be communicated only where those traders already have those means of communication with consumers; Article 6(1)(c) of Directive 2011/83 must be interpreted as meaning that, although that provision requires traders to make available to consumers a means of communication capable of satisfying the criteria of direct and effective communication, it does not preclude those traders from providing other means of communication than those listed in that provision in order to satisfy those criteria. [Signatures]( *1 ) Language of the case: German. | b58b1-6e1cf71-481c | EN |
Advocate General Kokott proposes that the Court of Justice should rule that national courts must, on application by affected individuals, examine whether air sampling points were sited in accordance with the criteria set out in EU law | 26 June 2019 ( *1 )(Reference for a preliminary ruling — Directive 2008/50/EC — Articles 6, 7, 13 and 23 — Annex III — Assessment of air quality — Criteria for determining whether the nitrogen dioxide limit values have been exceeded — Measurements using fixed sampling points — Choice of appropriate sites — Interpretation of the values measured at the sampling points — Obligations of the Member States — Judicial review — Intensity of the review — Power to issue directions)In Case C‑723/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium), made by decision of 15 December 2017, received at the Court on 29 December 2017, in the proceedings Lies Craeynest, Cristina Lopez Devaux, Frédéric Mertens, Stefan Vandermeulen, Karin De Schepper, ClientEarth VZW v Brussels Hoofdstedelijk Gewest, Brussels Instituut voor Milieubeheer, intervening party: Belgische Staat, THE COURT (First Chamber),composed of J.-C. Bonichot (Rapporteur), President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan, Judges,Advocate General: J. Kokott,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 10 January 2019,after considering the observations submitted on behalf of:–Ms Craeynest, Ms Lopez Devaux, Mr Mertens, Mr Vandermeulen, Ms De Schepper and ClientEarth VZW, by T. Malfait and A. Croes, advocaten,the Brussels Hoofdstedelijk Gewest and the Brussels Instituut voor Milieubeheer, by G. Verhelst and B. Van Weerdt, advocaten, and by I.‑S. Brouhns, avocat,the Czech Government, by M. Smolek, J. Vláčil and L. Dvořáková, acting as Agents,the Netherlands Government, by M.K. Bulterman and A.M. de Ree, acting as Agents,the European Commission, by E. Manhaeve and by K. Petersen, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 4(3) TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with the third paragraph of Article 288 TFEU, and of Articles 6, 7, 13 and 23 of and Annex III to Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1).2The request has been made in the context of a dispute between Ms Lies Craeynest, Ms Cristina Lopez Devaux, Mr Frédéric Mertens, Mr Stefan Vandermeulen, Ms Karin De Schepper and ClientEarth VZW, on the one hand, and the Brussels Hoofdstedelijk Gewest (Brussels Capital Region, Belgium) and the Brussels Instituut voor Milieubeheer (Brussels Institute for Environmental Management, Belgium), on the other, regarding the obligation to develop an air quality plan for the Brussels zone (Belgium) and to install the sampling points legally required to monitor air quality. Legal context 3Recitals 2, 5 to 7 and 14 of Directive 2008/50 state:‘(2)In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account relevant World Health Organisation standards, guidelines and programmes.…(5)A common approach to the assessment of ambient air quality should be followed according to common assessment criteria. When assessing ambient air quality, account should be taken of the size of populations and ecosystems exposed to air pollution. It is therefore appropriate to classify the territory of each Member State into zones or agglomerations reflecting the population density.(6)Where possible modelling techniques should be applied to enable point data to be interpreted in terms of geographical distribution of concentration. This could serve as a basis for calculating the collective exposure of the population living in the area.(7)In order to ensure that the information collected on air pollution is sufficiently representative and comparable across the Community, it is important that standardised measurement techniques and common criteria for the number and location of measuring stations are used for the assessment of ambient air quality. Techniques other than measurements can be used to assess ambient air quality and it is therefore necessary to define criteria for the use and required accuracy of such techniques.(14)Fixed measurements should be mandatory in zones and agglomerations where the long-term objectives for ozone or the assessment thresholds for other pollutants are exceeded. Information from fixed measurements may be supplemented by modelling techniques and/or indicative measurements to enable point data to be interpreted in terms of geographical distribution of concentrations. The use of supplementary techniques of assessment should also allow for reduction of the required minimum number of fixed sampling points.’4Article 1 of Directive 2008/50 provides:‘This Directive lays down measures aimed at the following:1.defining and establishing objectives for ambient air quality designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole;2.assessing the ambient air quality in Member States on the basis of common methods and criteria;3.obtaining information on ambient air quality in order to help combat air pollution and nuisance and to monitor long-term trends and improvements resulting from national and Community measures;…’5Article 2 of that directive provides:‘For the purposes of this Directive:“level” shall mean the concentration of a pollutant in ambient air or the deposition thereof on surfaces in a given time;4.“assessment” shall mean any method used to measure, calculate, predict or estimate levels;5.“limit value” shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;17.“agglomeration” shall mean a zone that is a conurbation with a population in excess of 250000 inhabitants or, where the population is 250000 inhabitants or less, with a given population density per km2 to be established by the Member States;20.“average exposure indicator” shall mean an average level determined on the basis of measurements at urban background locations throughout the territory of a Member State and which reflects population exposure. It is used to calculate the national exposure reduction target and the exposure concentration obligation;23.“urban background locations” shall mean places in urban areas where levels are representative of the exposure of the general urban population;24.“oxides of nitrogen” shall mean the sum of the volume mixing ratio (ppbv) of nitrogen monoxide (nitric oxide) and nitrogen dioxide expressed in units of mass concentration of nitrogen dioxide (μg/m3);25.“fixed measurements” shall mean measurements taken at fixed sites, either continuously or by random sampling, to determine the levels in accordance with the relevant data quality objectives;6Article 4 of Directive 2008/50 provides:‘Member States shall establish zones and agglomerations throughout their territory. Air quality assessment and air quality management shall be carried out in all zones and agglomerations.’7Under Article 5(1) of the directive:‘The upper and lower assessment thresholds specified in Section A of Annex II shall apply to sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter (PM10 and PM2,5), lead, benzene and carbon monoxide.Each zone and agglomeration shall be classified in relation to those assessment thresholds.’8Article 6 of the directive, entitled ‘Assessment criteria’, is worded as follows:‘1. Member States shall assess ambient air quality with respect to the pollutants referred to in Article 5 in all their zones and agglomerations, in accordance with the criteria laid down in paragraphs 2, 3 and 4 of this Article and in accordance with the criteria laid down in Annex III.2. In all zones and agglomerations where the level of pollutants referred to in paragraph 1 exceeds the upper assessment threshold established for those pollutants, fixed measurements shall be used to assess the ambient air quality. Those fixed measurements may be supplemented by modelling techniques and/or indicative measurements to provide adequate information on the spatial distribution of the ambient air quality.3. In all zones and agglomerations where the level of pollutants referred to in paragraph 1 is below the upper assessment threshold established for those pollutants, a combination of fixed measurements and modelling techniques and/or indicative measurements may be used to assess the ambient air quality.4. In all zones and agglomerations where the level of pollutants referred to in paragraph 1 is below the lower assessment threshold established for those pollutants, modelling techniques or objective-estimation techniques or both shall be sufficient for the assessment of the ambient air quality.9Article 7 of the same directive, headed ‘Sampling points’, provides:‘1. The location of sampling points for the measurement of sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter (PM10, PM2,5), lead, benzene and carbon monoxide in ambient air shall be determined using the criteria listed in Annex III.2. In each zone or agglomeration where fixed measurements are the sole source of information for assessing air quality, the number of sampling points for each relevant pollutant shall not be less than the minimum number of sampling points specified in Section A of Annex V.3. For zones and agglomerations within which information from fixed measurement sampling points is supplemented by information from modelling and/or indicative measurement, the total number of sampling points specified in Section A of Annex V may be reduced by up to 50%, provided that the following conditions are met:(a)the supplementary methods provide sufficient information for the assessment of air quality with regard to limit values or alert thresholds, as well as adequate information for the public;(b)the number of sampling points to be installed and the spatial resolution of other techniques are sufficient for the concentration of the relevant pollutant to be established in accordance with the data quality objectives specified in Section A of Annex I and enable assessment results to meet the criteria specified in Section B of Annex I.The results of modelling and/or indicative measurement shall be taken into account for the assessment of air quality with respect to the limit values.4. The application in Member States of the criteria for selecting sampling points shall be monitored by the Commission so as to facilitate the harmonised application of those criteria throughout the European Union.’10Article 13 of Directive 2008/50, entitled ‘Limit values and alert thresholds for the protection of human health’, provides in paragraph 1:‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.In respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein.Compliance with these requirements shall be assessed in accordance with Annex III.11Article 15 of that directive provides:‘…2. Member States shall ensure that the average exposure indicator for the year 2015 established in accordance with Section A of Annex XIV does not exceed the exposure concentration obligation laid down in Section C of that Annex.4. Each Member State shall, in accordance with Annex III, ensure that the distribution and the number of sampling points on which the average exposure indicator for PM2,5 is based reflect the general population exposure adequately. The number of sampling points shall be no less than that determined by application of Section B of Annex V.’12Article 23(1) of Directive 2008/50 states:‘Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.Those air quality plans shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24. Those plans shall be communicated to the Commission without delay, but no later than 2 years after the end of the year the first exceedance was observed.13Annex III to Directive 2008/50 deals with the ‘assessment of ambient air quality and location of sampling points for the measurement of sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter (PM10 and PM2,5), lead, benzene and carbon monoxide in ambient air’. Section A thereof, entitled ‘General’, provides in paragraph 1:‘Ambient air quality shall be assessed in all zones and agglomerations in accordance with the following criteria:Ambient air quality shall be assessed at all locations except those listed in paragraph 2, in accordance with the criteria established by Sections B and C for the location of sampling points for fixed measurement. The principles established by Sections B and C shall also apply in so far as they are relevant in identifying the specific locations in which concentration of the relevant pollutants are established where ambient air quality is assessed by indicative measurement or modelling.’14Annex III, Section B, of that directive, entitled ‘Macroscale siting of sampling points’, provides in paragraph 1, entitled ‘Protection of human health’:‘(a)Sampling points directed at the protection of human health shall be sited in such a way as to provide data on the following:the areas within zones and agglomerations where the highest concentrations occur to which the population is likely to be directly or indirectly exposed for a period which is significant in relation to the averaging period of the limit value(s),levels in other areas within the zones and agglomerations which are representative of the exposure of the general population,Sampling points shall in general be sited in such a way as to avoid measuring very small micro-environments in their immediate vicinity, which means that a sampling point must be sited in such a way that the air sampled is representative of air quality for a street segment no less than 100 m length at traffic-orientated sites and at least 250 m × 250 m at industrial sites, where feasible;(c)Urban background locations shall be located so that their pollution level is influenced by the integrated contribution from all sources upwind of the station. The pollution level should not be dominated by a single source unless such a situation is typical for a larger urban area. Those sampling points shall, as a general rule, be representative for several square kilometres;(f)Sampling points shall, where possible, also be representative of similar locations not in their immediate vicinity;15Section C of Annex III to Directive 2008/50 provides criteria for the microscale siting of sampling points, such as the distance between the sampling probe and the ground, its location in relation to streets and junctions and other technical requirements.16Section D of Annex III to the directive, entitled ‘Documentation and review of site selection’, states:‘The site-selection procedures shall be fully documented at the classification stage by such means as compass-point photographs of the surrounding area and a detailed map. Sites shall be reviewed at regular intervals with repeated documentation to ensure that selection criteria remain valid over time.’17Annex V to that directive lays down the ‘criteria for determining minimum numbers of sampling points for fixed measurement of concentrations of sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter (PM10, PM2,5), lead, benzene and carbon monoxide in ambient air’. Section A of that annex provides, inter alia:‘For nitrogen dioxide, particulate matter, benzene and carbon monoxide: to include at least one urban background monitoring station and one traffic-orientated station provided this does not increase the number of sampling points. For these pollutants, the total number of urban background stations and the total number of traffic oriented stations in a Member State required under Section A(1) shall not differ by more than a factor of 2. Sampling points with exceedances of the limit value for PM10 within the last 3 years shall be maintained, unless a relocation is necessary owing to special circumstances, in particular spatial development.’18Annex XI to the directive is entitled ‘Limit values for the protection of human health’. Section B thereof sets limit values per pollutant according to its concentration in ambient air measured in different time periods. As regards nitrogen dioxide, this annex provides, in particular:Averaging PeriodLimit valueMargin of toleranceDate by which limit value is to be metOne hour200 μg/m3, not to be exceeded more than 18 times a calendar year… 0% by 1 January 20101 January 2010Calendar year40 μg/m3 19Annex XV to Directive 2008/50 sets out the ‘information to be included in the local, regional or national air quality plans for improvement in ambient air quality’. Among the ‘information to be provided under Article 23 (air quality plans)’, listed in Section A of that annex, the ‘localisation of excess pollution’ is mentioned, which includes information on the region, the city and the ‘measuring station (map, geographical coordinates)’. In addition, among the general information to be provided is an ‘estimate of the polluted area (km2) and of the population exposed to the pollution’. The dispute in the main proceedings and the questions referred for a preliminary ruling 20It is apparent from the order for reference that the Brussels Capital Region is a zone subject to air quality assessment and air quality management within the meaning of Article 4 of Directive 2008/50. Air quality is monitored using sampling points. According to the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium), the latter must be located, in accordance with Article 7(1) of Directive 2008/50, read in conjunction with Annex III, Section B, paragraph 1(a) thereto, in such a way as to provide, inter alia, data on ‘the areas within zones and agglomerations where the highest concentrations’ of the pollutants covered by that directive ‘occur’.21Among the applicants in the main proceedings are four inhabitants of the Brussels Capital Region who are concerned about the quality of the air in their environment. The fifth applicant in the main proceedings is a non-profit-making association governed by English law with a centre of activities in Belgium. One of the objects of that association is to protect the environment.22By their action, brought on 21 September 2016, the applicants in the main proceedings asked the referring court to declare that the abovementioned requirement was not complied with in the Brussels Capital Region and to order the latter to establish sampling points at appropriate locations, such as a specific street or junction.23The referring court considers that the rules laid down in Directive 2008/50 on the identification or delimitation of ‘areas within zones and agglomerations where the highest concentrations’ of pollutants ‘occur’ confer a margin of discretion on the competent authorities. Consequently, it is not certain whether a court may verify that the sampling points have been correctly located and, if necessary, order those authorities to establish such points in areas that the court itself would determine.24The applicants in the main proceedings consider, for their part, that the limit value laid down in Directive 2008/50 for nitrogen dioxide since 1 January 2010 has actually been exceeded in the Brussels Capital Region. For this reason, an air quality plan, as provided for in Article 23 of that directive, should be drawn up by the competent authorities.25According to the referring court, if the limit values laid down in Directive 2008/50 are exceeded, the Member States are required to draw up, in accordance with Article 23(1) of that directive, an air quality plan which provides for appropriate measures to ensure that the period in which those values are exceeded is as short as possible. As is apparent from the judgment of 19 November 2014, ClientEarth (C‑404/13, EU:C:2014:2382), compliance with that obligation may be subject to judicial review and the court seised has the power to order the competent authorities to draw up such a plan.26That court also notes that the parties to the main proceedings do not dispute the values measured at the various sampling points located in the Brussels Capital Region. On the other hand, they disagree on the interpretation of Article 13(1) of Directive 2008/50, from which it follows that the concentration of nitrogen dioxide in the air must not exceed an annual average of 40 μg/m3‘throughout … zones and agglomerations’ of a Member State.27The wording of that provision does not make it possible to decide whether, in the Brussels Capital Region, that level was in fact exceeded. It is true that the value of 40 μg/m3 of nitrogen dioxide was exceeded at various sampling points. However, the nitrogen dioxide concentration would remain below the annual average of 40 μg/m3 if it were determined solely on the basis of the average of the values measured at all sampling points located in that region.28The applicants in the main proceedings consider that it follows from the wording of Article 13(1) of Directive 2008/50 that the limit values may not be exceeded in any area of a zone, within the meaning of Article 4 of the directive. On the other hand, the Brussels Capital Region and the Brussels Institute for Environmental Management consider that the air quality should be assessed for a zone or agglomeration as a whole.29In those circumstances, the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Should Article 4(3) and the second subparagraph of Article 19(1) [TEU], read in conjunction with the third paragraph of Article 288 [TFEU], and Articles 6 and 7 of Directive [2008/50] be interpreted as meaning that, when it is alleged that a Member State has not sited the sampling points in a zone in accordance with the criteria set out in paragraph 1(a) of Section B of Annex III to Directive 2008/50, it is for the national courts, on application by individuals who are directly affected by the exceedance of the limit values referred to in Article 13(1) of that directive, to examine whether the sampling points were established in accordance with those criteria and, if they were not, to take all necessary measures in respect of the national authority, such as an order, with a view to ensuring that the sampling points are sited in accordance with those criteria?(2)Is a limit value within the meaning of Article 13(1) and Article 23(1) of Directive [2008/50] exceeded in the case where an exceedance of a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been established on the basis of the measurement results from one single sampling point within the meaning of Article 7 of that directive, or does such an exceedance occur only when this becomes apparent from the average of the measurement results from all sampling points in a particular zone within the meaning of Directive 2008/50?’ Consideration of the questions referred The first question 30By its first question, the referring court asks whether Article 4(3) TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with the third paragraph of Article 288 TFEU, and Articles 6 and 7 of Directive 2008/50, must be interpreted as meaning that it is for a national court, hearing an application submitted for that purpose by individuals directly affected by the exceedance of the limit values referred to in Article 13(1) of that directive, to verify whether the sampling points located in a particular zone have been established in accordance with the criteria laid down in paragraph 1(a) of Section B of Annex III to the directive and, if they were not, to take all necessary measures in respect of the competent national authority, such as an order, with a view to ensuring that the sampling points are located in accordance with those criteria.31According to settled case-law, under the principle of sincere cooperation laid down in Article 4(3) TEU, it is for the courts of the Member States to ensure legal protection of an individual’s rights under EU law. In addition, the second subparagraph of Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 52).32In addition, the Court has noted on numerous occasions that it is incompatible with the binding effect that Article 288 TFEU ascribes to the directive to exclude, in principle, the possibility of the obligation imposed by that directive being relied on by the persons concerned. That consideration applies particularly in respect of a directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (judgments of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraph 37, and of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 55).33As the Advocate General pointed out, in essence, in point 53 of her Opinion, the rules laid down in Directive 2008/50 on ambient air quality put into concrete terms the EU’s obligations concerning environmental protection and the protection of public health, which stem, inter alia, from Article 3(3) TEU and Article 191(1) and (2) TFEU, according to which Union policy on the environment is to aim at a high level of protection, taking into account the diversity of situations in the various regions of the European Union, and is to be based, inter alia, on the precautionary principle and on the principle that preventive action should be taken (judgment of 13 July 2017, Túrkevei Tejtermelő Kft., C‑129/16, EU:C:2017:547).34In particular, where the EU legislature has, by directive, imposed on Member States the obligation to pursue a particular course of action, the effectiveness of such action would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of EU law in deciding whether the national legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set by the directive (judgment of 24 October 1996, Kraaijeveld and Others, C‑72/95, EU:C:1996:404, paragraph 56).35Directive 2008/50 lays down detailed rules for the use and location of sampling points to measure air quality in zones and agglomerations established by the Member States in accordance with Article 4 of the directive.36Article 6 of Directive 2008/50 lays down different technical methods that Member States are required to use to assess air quality in zones and agglomerations. In accordance with Article 6(2) to (4), in all zones and agglomerations where the level of pollutants referred to in Article 5 of the directive exceeds the upper assessment threshold set out in Section A of Annex II thereto, the ambient air quality is to be assessed using fixed measurements, which may be supplemented by modelling techniques and indicative measurements. Below the upper assessment threshold, a combination of fixed measurements, on the one hand, and modelling techniques and indicative measurements, on the other hand, is permitted. Only when the pollution level does not reach the lower assessment threshold, also set out in Section A of Annex II to Directive 2008/50, can air quality be monitored using only modelling or objective-estimation techniques.37Article 7 of Directive 2008/50 concerns the location and minimum number of sampling points. In accordance with paragraph 1 thereof, the location of sampling points for the measurement of sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter (PM10 and PM2,5), lead, benzene and carbon monoxide in ambient air is to be determined in accordance with the criteria set out in Annex III to that directive.38Section B of that annex sets out the criteria for the ‘macroscale siting’ of sampling points. It follows from paragraph 1(a) thereof that sampling points directed at the protection of human health must be sited in such a way as to provide data on air quality (i) in the areas within zones and agglomerations where the highest concentrations of the pollutants in question occur to which the population is likely to be directly or indirectly exposed for a period which is significant in relation to the period under consideration for the limit values concerned and (ii) in other areas within the zones and agglomerations which are representative of the exposure of the general population. Paragraph 1(f) of Section B of that annex specifies that sampling points are, where possible, also to be representative of similar locations not in their immediate vicinity.39Thus, the provisions of paragraph 1(a) and (f) of Section B of Annex III to Directive 2008/50 require sampling points to provide representative data for locations in a zone or agglomeration characterised by a certain level of pollution.40It is apparent from paragraph 1(b) of Section B of Annex III to that directive that sampling points must be sited in such a way as to avoid measuring very small ‘micro-environments’ in their immediate vicinity and that the air sampled must, as far as possible, be representative of the air quality in an area of a certain size. That provision requires that the measurements reflect air quality, at traffic-orientated sites, for a street segment no less than 100 m in length and, at industrial sites, for a plot of at least 250 m × 250 m.41In addition, the rules provided for in Annex V to Directive 2008/50, to which Article 7(2) and (3) of that directive refers, make it possible to determine the minimum number of sampling points in a zone or agglomeration and the ratio between the points for measuring background pollution and those for measuring traffic-based pollution.42Some of the provisions of Directive 2008/50 referred to in the preceding paragraphs of this judgment contain clear, precise and unconditional obligations, which means that they can be invoked by individuals against the State.43This is the case, in particular, with regard to the obligation to establish sampling points in such a way that they provide information on the pollution of the most polluted locations, laid down in the first indent of paragraph 1(a) of Section B of Annex III to Directive 2008/50, and the obligation to establish at least the minimum number of sampling points set out in Annex V to that directive. It is for the national courts to verify whether those obligations have been complied with.44It is indeed true that, depending on the local situation in a zone or agglomeration, several sites may meet the criteria laid down in paragraph 1(a) of Section B of Annex III to Directive 2008/50. Therefore, it is the responsibility of the competent national authorities to choose, within the limits of their discretionary powers, the actual location of the sampling points.45However, the existence of such discretionary powers does not in any way mean that the decisions taken by those authorities in that connection are exempt from judicial review, in particular in order to verify whether they have exceeded the limits set for the exercise of those powers (see, to that effect, judgments of 24 October 1996, Kraaijeveld and Others, C‑72/95, EU:C:1996:404, paragraph 59, and of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraph 46).46Moreover, despite the absence of rules of EU law on procedures for bringing actions before national courts, and in order to determine the rigour of judicial review of national decisions adopted pursuant to an act of EU law, it is necessary to take into account the purpose of the act and to ensure that its effectiveness is not undermined (see, to that effect, judgments of 18 June 2002, HI, C‑92/00, EU:C:2002:379, paragraph 59, and of 11 December 2014, Croce Amica One Italia, C‑440/13, EU:C:2014:2435, paragraph 40).47With regard to Directive 2008/50, the location of sampling points is central to the air quality assessment and improvement system it provides for, in particular where the level of pollution exceeds the upper assessment threshold referred to in Articles 5 and 6 thereof. As noted in paragraph 36 above, in that case, in accordance with Article 6(2) of Directive 2008/50, sampling points are the main instrument for assessing air quality.48The measurements obtained with those points enable Member States to ensure, as required by Article 13(1) of Directive 2008/50, that, throughout their zones and agglomerations, the levels of the pollutants identified in that directive do not exceed the limit values laid down in Annex XI thereto. If those limit values are exceeded after the deadline for their application, the Member State concerned is required to draw up, in accordance with Article 23(1) of that directive, an air quality plan which meets certain requirements (see, to that effect, judgments of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraphs 35 and 42, and of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraphs 25 and 40).49It follows that the very purpose of Directive 2008/50 would be compromised if sampling points located in a given zone or agglomeration were not established in accordance with the criteria laid down therein.50That risk may also arise if, within the limits of the discretion conferred on them by Directive 2008/50, the competent national authorities do not seek to ensure that the directive is effective. Thus, in particular if measurements taken at several sites are, in principle, likely to provide information on the most polluted locations for the purpose of the first indent of paragraph 1(a) of Section B of Annex III to that directive, it is the responsibility of the competent national authorities to choose the location of sampling points in such a way as to minimise the risk that incidents in which limit values are exceeded may go unnoticed.51In this context, those authorities are required to base their decisions on sound scientific data and, as set out in Section D of Annex III to Directive 2008/50, to prepare comprehensive documentation that includes evidence supporting the choice of the location of all monitoring sites. That documentation must be updated regularly to ensure that the selection criteria remain valid.52Therefore, while the choice of the location of sampling points requires technical and complex assessments, the discretion of the competent national authorities is limited by the purpose and objectives pursued by the relevant rules in this respect.53Moreover, since individuals are entitled to have a court verify whether national legislation and its application remained within the limits of the margin of discretion allowed in Directive 2008/50 when the location of sampling points was chosen, the court designated for this purpose by national law also has jurisdiction to take all necessary measures in respect of the national authority concerned, such as an order, to ensure that such points are sited in accordance with the criteria laid down in that directive (see, to that effect, judgments of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraphs 38 and 39, and of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraphs 55, 56 and 58).54In this respect, it is clear from the Court’s case-law that, in the absence of EU rules, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, such as Directive 2008/50. However, the detailed rules provided for must not be less favourable than those governing similar domestic situations (principle of equivalence) and must not make it impossible in practice or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments of 6 October 2015, East Sussex County Council, C‑71/14, EU:C:2015:656, paragraph 52, and of 22 February 2018, INEOS Köln, C‑572/16, EU:C:2018:100, paragraph 42). As regards the latter principle, it should be recalled that the right to an effective remedy and to a fair trial is enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgments of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31, and of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 59).55In the present case, it was stated at the hearing before the Court and was not disputed that the national courts with jurisdiction to verify the location of sampling points have, under the relevant rules of Belgian law, a power to issue orders in respect of national authorities. It is therefore for the national court to make use, where appropriate, of that power under the conditions laid down by national law.56In view of all the above considerations, the answer to the first question is that Article 4(3) TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with the third paragraph of Article 288 TFEU, and Articles 6 and 7 of Directive 2008/50 must be interpreted as meaning that it is for a national court, hearing an application submitted for that purpose by individuals directly affected by the exceedance of the limit values referred to in Article 13(1) of that directive, to verify whether the sampling points located in a particular zone have been established in accordance with the criteria laid down in paragraph 1(a) of Section B of Annex III to the directive and, if they were not, to take all necessary measures in respect of the competent national authority, such as, if provided for by national law, an order, with a view to ensuring that those sampling points are sited in accordance with those criteria. The second question 57By its second question, the referring court asks whether Article 13(1) and Article 23(1) of Directive 2008/50 must be interpreted as meaning that, in order to establish whether a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been exceeded, it is sufficient that a pollution level higher than that value be measured at a single sampling point or whether it is necessary that the average of the measurements taken at all the sampling points in a particular zone or agglomeration indicate such a pollution level.58It has been recalled, in paragraph 48 above, that it is for the Member States to ensure, in accordance with Article 13(1) of Directive 2008/50, that, throughout their zones and agglomerations, the levels of the pollutants referred to in that directive do not exceed the limit values laid down in Annex XI thereto. If those limit values are exceeded after the deadline for their application, the Member State concerned is required to draw up an air quality plan, in accordance with Article 23(1) of that directive.59As the Advocate General noted in points 72 to 75 of her Opinion, the wording of Article 13(1) of Directive 2008/50 does not make it possible to answer the second question raised by the referring court. The same applies as regards Article 23(1) of that directive.60When a literal interpretation of a provision of EU law does not permit its precise scope to be assessed, it must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 6 June 2018, Koppers Denmark, C‑49/17, EU:C:2018:395, paragraph 22 and the case-law cited).61It follows from Article 6(1) and the third subparagraph of Article 13(1) of Directive 2008/50 that it is for the Member States to assess compliance with the limit values in accordance with the requirements and criteria set out in Annex III to that directive. As is apparent from paragraph 1 of Section A of that annex, Sections B and C of that annex concern the location of sampling points, but also provide guidance for the implementation of the other air quality assessment methods provided for in Directive 2008/50.62In this respect, it was observed, in paragraph 39 above, that the provisions of paragraph 1(a) and (f) of Section B of Annex III to Directive 2008/50 require sampling points to provide representative data for locations in a zone or agglomeration characterised by a certain level of pollution. The system thus designed by the EU legislature seeks to enable the competent authorities not only to know the level of air pollution at the location represented by a sampling point, but also to infer from this the level of pollution at other similar locations. As is apparent from recital 14 of Directive 2008/50, the latter objective is achieved, inter alia, by using modelling techniques.63It follows that the determination of the average of the values measured at all sampling points in a zone or agglomeration does not provide a valid indication as to the population’s exposure to pollutants. In particular, such an average does not make it possible to determine the level of exposure of the population in general, since that level must be assessed using sampling points set up specifically for that purpose, in accordance with the second indent of paragraph 1(a) of Section B of Annex III to Directive 2008/50.64Article 15 of Directive 2008/50, read in conjunction with Article 2(20) and (23) and Section A of Annex XIV to that directive, confirms that assessment. In accordance with Article 15 of the directive, Member States are to establish an indicator of average exposure to PM2,5. That indicator is not determined on the basis of an average of the pollution level at all sampling points in a zone or agglomeration, but by reference to the values obtained at the points which measure urban background pollution only, which, in accordance with Article 15(4) of the directive, must reflect the general population’s exposure to PM2,5, in accordance with Annex III to Directive 2008/50.65In addition, the third subparagraph of Article 23(1) of Directive 2008/50 provides that air quality plans are to incorporate at least the information listed in Section A of Annex XV to that directive. In accordance with paragraph 1 of Section A of Annex XV, air quality plans must identify the place where an exceedance of the limit values has been measured, including the sampling point(s) concerned.66In the light of those considerations, it follows from the general scheme of Directive 2008/50 that, for the purposes of the assessment, by Member States, of whether the limit values set out in Annex XI to that directive have been complied with, the level of pollution measured at each individual sampling point is decisive.67That interpretation of Article 13(1) and Article 23(1) of Directive 2008/50 is confirmed by the purpose of the directive. As is apparent from recital 2 and Article 1 thereof, that directive aims to protect human health and, to this end, provides for measures to combat emissions of pollutants at source. In accordance with that objective, it is necessary to determine the actual air pollution to which the population or part of it is exposed and to ensure that appropriate measures are taken to combat the sources of such pollution. Consequently, the fact that a limit value has been exceeded at a single sampling point is sufficient to trigger the obligation to draw up an air quality plan, in accordance with Article 23(1) of Directive 2008/50.68In view of all the above considerations, the answer to the second question is that Article 13(1) and Article 23(1) of Directive 2008/50 must be interpreted as meaning that, in order to establish whether a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been exceeded, it is sufficient that a pollution level higher than that value be measured at a single sampling point. Costs 69Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: 1. Article 4(3) TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with the third paragraph of Article 288 TFEU, and Articles 6 and 7 of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe must be interpreted as meaning that it is for a national court, hearing an application submitted for that purpose by individuals directly affected by the exceedance of the limit values referred to in Article 13(1) of that directive, to verify whether the sampling points located in a particular zone have been established in accordance with the criteria laid down in paragraph 1(a) of Section B of Annex III to the directive and, if they were not, to take all necessary measures in respect of the competent national authority, such as, if provided for by national law, an order, with a view to ensuring that those sampling points are sited in accordance with those criteria. 2. Article 13(1) and Article 23(1) of Directive 2008/50 must be interpreted as meaning that, in order to establish whether a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been exceeded, it is sufficient that a pollution level higher than that value be measured at a single sampling point. [Signatures]( *1 ) Language of the case: Dutch. | 6f2fd-ef617c7-4ede | EN |
Advocate General Bot proposes that the Court should declare that spontaneous burning of a vehicle parked in a private garage for more than 24 hours falls within the concept of ‘use of vehicles’ | 20 June 2019 ( *1 )(Reference for a preliminary ruling — Insurance against civil liability in respect of the use of motor vehicles — Directive 2009/103/EC — Article 3, first paragraph — Concept of ‘use of vehicles’ — Damage to property as a result of a fire in a vehicle parked in the private garage of the property — Compulsory insurance cover)In Case C‑100/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 30 January 2018, received at the Court on 12 February 2018, in the proceedings Línea Directa Aseguradora, SA v Segurcaixa, Sociedad Anónima de Seguros y Reaseguros, THE COURT (Second Chamber),composed of A. Arabadjiev (Rapporteur), President of the Chamber, T. von Danwitz and P.G. Xuereb, Judges,Advocate General: Y. Bot,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of–Línea Directa Aseguradora SA, by M. Relaño, abogado,Segurcaixa, Sociedad Anónima de Seguros y Reaseguros, by C. Blanco Sánchez de Cueto, procurador, and by A. Ruiz Hourcadette, abogada,the Spanish Government, by L. Aguilera Ruiz and by V. Ester Casas, acting as Agents,the Lithuanian Government, by R. Krasuckaitė and G. Taluntytė, acting as Agents,the Austrian Government, by G. Hesse, acting as Agent,the United Kingdom Government, by S. Brandon, acting as Agent, and by A. Bates, Barrister,the European Commission, by H. Tserepa-Lacombe and by J. Rius, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11).2The request has been made in proceedings between Línea Directa Aseguradora SA (‘Línea Directa’) and Segurcaixa, Sociedad Anónima de Seguros y Reaseguros (‘Segurcaixa’), concerning the reimbursement of the compensation which Segurcaixa paid to the victim of a fire originating in the electrical circuit of a car insured by Línea Directa. Legal context European Union law 3Article 1 of Directive 2009/103 is worded as follows:‘For the purposes of this Directive:1.“vehicle” means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled;…’4Article 3 of that directive provides:‘Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of the measures referred to in the first paragraph.Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers:(a)according to the law in force in other Member States, any loss or injury which is caused in the territory of those States;(b)any loss or injury suffered by nationals of Member States during a direct journey between two territories in which the Treaty is in force, if there is no national insurers’ bureau responsible for the territory which is being crossed; in such a case, the loss or injury shall be covered in accordance with the national laws on compulsory insurance in force in the Member State in whose territory the vehicle is normally based.The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.’5Article 5 of that directive provides:‘1. A Member State may derogate from Article 3 in respect of certain natural or legal persons, public or private; a list of such persons shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.…2. A Member State may derogate from Article 3 in respect of certain types of vehicle or certain vehicles having a special plate; the list of such types or of such vehicles shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.6Article 13(1)(c) of that directive provides:‘1. Each Member State shall take all appropriate measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3 shall be deemed to be void in respect of claims by third parties who have been victims of an accident where that statutory provision or contractual clause excludes from insurance the use or driving of vehicles by:(c)persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned.’ Spanish law 7The Ley sobre responsabilidad civil y seguro en la circulación de vehículos a motor (Law on civil liability and motor vehicle insurance), codified by Real Decreto Legislativo 8/2004 por el que se aprueba el texto refundido de la Ley sobre responsabilidad civil y seguro en la circulación de vehículos a motor (Royal Decree-Law 8/2004 approving the revised text of the Law on civil liability and motor vehicle insurance) of 29 October 2004 (BOE No 267 of 5 November 2004, p. 36662), in the version applicable to the dispute in the main proceedings, provides in Article 1(1):‘Because of the risk involved in driving motor vehicles, drivers shall be liable for damage caused to persons or property as a consequence of its use.In the case of damage to persons, he will be exempt from this liability only if he can prove that the damage was due to the exclusive fault of the person harmed or to force majeure unconnected with the driving or functioning of the vehicle; defects in the vehicle or breakage or failure of any of its parts or mechanisms will not be considered force majeure.The driver shall be liable to third parties for damage to property if he bears civil liability under the provisions of Article 1902 et seq. of the [Código Civil (Spanish Civil Code)], Article 109 et seq. of the [Código Penal (Spanish Criminal Code)] or the provisions of this Law.If both the driver and the victim have been negligent, liability shall be apportioned fairly and compensation calculated on the basis of the liability of each party.Vehicle owners who were not driving and are related to the driver in one of the ways set out in Article 1903 of the Civil Code and Article 120(5) of the Criminal Code shall be liable for any physical injury or damage to property caused by the driver. The owner shall not be liable upon providing proof that he acted with all due care to prevent the damage.If the owner of a vehicle who was not driving is not covered by compulsory insurance, he shall bear joint civil liability with the driver for any physical injury or damage to property caused by the vehicle, unless he proves that the vehicle was stolen.’8Article 2(1) of the Reglamento del seguro obligatorio de responsabilidad civil en la circulación de vehículos de motor (Regulation on compulsory civil liability insurance for motor vehicles), codified by Real Decreto 1507/2008 por el que se aprueba el Reglamento del seguro obligatorio de responsabilidad civil en la circulación de vehiculos a motor (Royal Decree 1507/2008 approving the Regulation on compulsory insurance against civil liability in respect of the use of motor vehicles) of 12 September 2008 (BOE No 222 of 13 September 2008, p. 37487), reads as follows:‘For the purposes of civil liability in respect of motor vehicles and the compulsory insurance cover governed by this Regulation, incidents arising from use of a vehicle refer to any incident stemming from the risk created by the use of motor vehicles referred to in the previous article, both in garages and parking areas and on public and private roads, or terrain suitable for traffic, urban and interurban, and on roads or terrain which, although unsuitable, are in general use.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 9On 19 August 2013, Mr Luis Salazar Rodes parked his new car in the private garage of a building which is the property of Industrial Software Indusoft (‘Indusoft’).10On 20 August 2013, Mr Salazar Rodes, who wanted to show his car to a neighbour, started its engine but did not move it. On the night of 20 to 21 August 2013, Mr Salazar Rodes’ car, which had not been driven for more than 24 hours, caught fire, giving rise to a fire and damage to the Indusoft building. The electrical circuit of this car was the cause of the fire.11Mr Salazar Rodes had taken out insurance against civil liability in respect of the use of motor vehicles, from Línea Directa, an insurance company.12Indusoft had taken out home insurance with Segurcaixa, which paid it the total amount of EUR 44 704.34 for damage caused by that fire.13In March 2014, Segurcaixa brought an action against Línea Directa before the Juzgado de Primera Instancia de Vitoria-Gazteiz (Court of First Instance, Vitoria-Gazteiz, Spain) and claimed compensation of EUR 44 704.34, together with statutory interest, on the ground that the accident had originated in a ‘use of a vehicle’ covered by the insurance against civil liability in respect of the use of Mr Salazar Rodes’ vehicle. That court dismissed the action, taking the view that the fire in question could not be regarded as a ‘use of a vehicle’ within the meaning of Spanish law.14Segurcaixa brought an appeal against the judgment of the Juzgado de Primera Instancia de Vitoria-Gazteiz (Court of First Instance, Vitoria-Gazteiz) before the Audiencia Provincial de Álava (Provincial Court, Alava, Spain), which upheld that appeal and ordered Línea Directa to pay the compensation sought by Segurcaixa.15Línea Directa lodged an appeal in cassation against the judgment of the Audiencia Provincial de Álava (Provincial Court, Alava) before the Tribunal Supremo (Supreme Court, Spain).16The Tribunal Supremo (Supreme Court, Spain) noted that the Audiencia Provincial de Álava (Provincial Court, Alava) adopted a broad interpretation of the concept of ‘use of a vehicle’, according to which, for the purposes of Spanish law, this concept covers a situation in which a vehicle parked in a private garage on a non-permanent basis has caught fire, when this fire was started by causes specific to the vehicle and without the intervention of third parties.17In that context, the referring court considers that the central question is whether insurance against civil liability in respect of the use of motor vehicles covers an accident involving a vehicle when its engine was not running and when that vehicle, which was parked in a private garage, posed no risk to road users.18In that regard, the referring court observes that, according to its case-law, on the one hand, the concept of ‘use of a vehicle’, within the meaning of Spanish law, covers not only situations in which a vehicle moves, but also those in which the engine of the vehicle is not running or situations in which a vehicle stops in the course of a journey and catches fire.19On the other hand, the Tribunal Supremo (Supreme Court) has already held that a fire involving a vehicle parked on a public road and covered in order to be protected from freezing was not a situation which fell within the concept of ‘use of a vehicle’ within the meaning of Spanish law.20That court states that, according to its case-law, where a vehicle is stationary and the accident has no connection with the transport function of that vehicle, it is not a ‘use of a vehicle’ which can be covered by compulsory insurance.21In that context, the referring court observes that, under Spanish law, the driver is not liable for damage caused as a result of the use of a vehicle where such damage is due to a case of force majeure which is unconnected with the driving of the vehicle. However, neither the defects in a vehicle nor the breakdown or failure of one of its mechanisms are considered to constitute force majeure. Therefore, in situations in which the accident is caused by a defect in a vehicle, that defect would not exempt the driver from liability and therefore would not exclude the insurance cover against civil liability in respect of motor vehicles.22The referring court considers, first, that if the fire occurs when the vehicle is stationary, but that fire originates in a function necessary or useful for the movement of the vehicle, that situation should be considered to be linked to the normal function of the vehicle.23Secondly, a situation in which a vehicle is parked in a private garage could be excluded from the concept of ‘use of a vehicle’ within the meaning of Article 3 of Directive 2009/103 where, either in the absence of a temporal proximity between the previous use of the vehicle and the fire or because of the way in which the accident occurred, there is no connection between that accident and the use of the vehicle.24In this respect, the referring court adds that if no account is taken of the temporal connection between the earlier use of the vehicle and the occurrence of the accident, that could result in compulsory insurance against civil liability in respect of the use of motor vehicles being placed on the same footing as homeowner’s insurance covering liability arising from the mere possession or ownership of a vehicle.25In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does Article 3 of [Directive 2009/103] preclude an interpretation that includes in the compulsory insurance cover damage caused by a fire in a stationary vehicle when the fire has its origin in the mechanisms necessary to performing the transport function of the vehicle?(2)If the answer to the first question is negative, does Article 3 of Directive 2009/103 preclude an interpretation that includes in the compulsory insurance cover damage caused by a fire in a vehicle when the fire cannot be linked to previous movement of the vehicle, in such a way that no connection with a journey can be discerned?(3)If the answer to the second question is negative, does Article 3 of Directive 2009/103 preclude an interpretation that includes in the compulsory insurance cover the damage caused by a fire in a vehicle when the vehicle is parked in a closed private garage?’ Consideration of the questions referred The admissibility of the first question 26Línea Directa considers that the first question is inadmissible on the ground that it raises a purely hypothetical problem. That undertaking claims that the fact that the fire in question originated in the electric circuit of the vehicle concerned is the only uncontested fact established by the referring court. On the other hand, it is not established that the fire originated in the mechanisms necessary to perform the transport function of that vehicle.27In that regard, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 16).28However, in the present case, it is not manifestly evident that the interpretation of EU law sought in the context of the first question is unrelated to the actual facts of the main action or its purpose or that the problem is hypothetical. In that regard, it is apparent from the request for a preliminary ruling that that interpretation is intended to clarify the concept of ‘use of vehicles’, within the meaning of Article 3 of Directive 2009/103, on which the resolution of the dispute in the main proceedings, which concerns compensation for damage caused by a vehicle fire, depends. Furthermore, the referring court has provided sufficient factual and legal evidence to enable the Court to give a useful answer to the questions submitted to it. Substance 29By its questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court asks, in essence, whether the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that a situation, such as that at issue in the main proceedings, in which a vehicle parked in a private garage of a building has caught fire, giving rise to a fire, which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle had not been moved for more than 24 hours before the fire occurred, falls within the concept of ‘use of vehicles’ referred to in that provision.30The first paragraph of Article 3 of Directive 2009/103 provides that each Member State is, subject to Article 5 of that directive, to take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.31First, it must be observed that a vehicle such as that in issue in the main proceedings is covered by the concept of ‘vehicle’ referred to in Article 1(1) of Directive 2009/103, which is defined a ‘vehicle intended for travel on land and propelled by mechanical power, but not running on rails’. Further, it is undisputed that that vehicle was normally parked in the territory of a Member State and that it is not affected by any derogation adopted under Article 5 of that directive.32As regards the question whether a situation such as that at issue in the main proceedings comes within the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 of that directive, it must be borne in mind that that concept cannot be left to the discretion of each Member State, but is an autonomous concept of EU law which must be interpreted, in accordance with the Court’s settled case-law, in the light, in particular, of the context of that provision and the objectives pursued by the rules of which it is part (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 24).33Moreover, the aim of EU legislation concerning insurance against civil liability in respect of the use of vehicles, including Directive 2009/103, is, on the one hand, to ensure the free movement of vehicles normally based on European Union territory and of persons travelling in those vehicles, and, on the other hand, to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred (see, to that effect, judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraphs 25 and 26).34In addition, the development of that legislation shows that the objective of protecting the victims of accidents caused by those vehicles has continuously been pursued and reinforced by the EU legislature (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 27).35In the light of those considerations, the Court has ruled that the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that the concept of ‘use of vehicles’ in that provision is not limited to road use, that is to say, to travel on public roads, but that that concept covers any use of a vehicle that is consistent with the normal function of that vehicle (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 28).36The Court has stated that, as the motor vehicles referred to in Article 1(1) of Directive 2009/103, are, irrespective of their characteristics, intended normally to serve as a means of transport, that concept covers any use of a vehicle as a means of transport (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 29).37In that regard, it must be noted, first, that the fact that the vehicle involved in an accident was stationary when the accident occurred does not, in itself, preclude the use of that vehicle at that time from falling within the scope of its function as a means of transport and, therefore, within the scope of the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 of Directive 2009/103 (see, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company, C‑648/17, EU:C:2018:917, paragraph 38 and the case-law cited).38The question of whether or not the engine of the vehicle concerned was running at the time of the accident is not conclusive either (see, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company, C‑648/17, EU:C:2018:917, paragraph 39 and the case-law cited).39On the other hand, it should be recalled that, according to the Court’s case-law, no provision in Directive 2009/103 limits the scope of the insurance obligation, and of the protection which that obligation is intended to give to the victims of accidents caused by motor vehicles, to the use of such vehicles on certain terrain or on certain roads (judgment of 20 December 2017, Núñez Torreiro, C‑334/16, EU:C:2017:1007, paragraph 31).40It follows that the scope of the concept of ‘use of vehicles’, within the meaning of the first paragraph of Article 3 of Directive 2009/103, does not depend on the characteristics of the terrain on which the vehicle is used and, in particular, the fact that the vehicle at issue is, at the time of the accident, stationary and in a car park (see, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company, C‑648/17, EU:C:2018:917, paragraphs 37 and 40).41In those circumstances, it must be held that the parking and the period of immobilisation of the vehicle are natural and necessary steps which form an integral part of the use of that vehicle as a means of transport.42Thus, a vehicle is used in accordance with its function as a means of transport when it moves but, in principle, also while it is parked between two journeys.43In the present case, it must be held that parking a vehicle in a private garage constitutes a use of that vehicle which is consistent with its function as a means of transport.44That conclusion is not affected by the fact that the vehicle was parked for more than 24 hours in that garage. Parking a vehicle presupposes that it remains stationary until its next trip, sometimes for a long period of time.45As regards the fact that the accident at issue in the main proceedings results from a fire caused by the electrical circuit of a vehicle, it must be held that, since that vehicle, which caused that accident, meets the definition of ‘vehicle’, within the meaning of Article 1(1) of Directive 2009/103, there is no need to distinguish between the parts of that vehicle which caused the harmful event or to determine the functions which that part performs.46Such an interpretation is consistent with the objective of protecting the victims of accidents caused by motor vehicles, which has continuously been pursued and reinforced by the EU legislature, as stated in paragraph 34 of this judgment.47It should also be noted that, in respect of claims by third parties who have been victims of an accident, it follows from Article 13 of Directive 2009/103 that any statutory or contractual provision excluding from insurance cover damage caused by the use or driving of a vehicle by a person who has not complied with the legal obligations of a technical nature concerning the condition and safety of the vehicle concerned, must be deemed void.48In the light of the foregoing considerations, the answer to the questions referred is that the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that a situation such as that at issue in the main proceedings, in which a vehicle parked in a private garage of a building, used in accordance with its function as a means of transport, has caught fire, giving rise to a fire which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle has not been moved for more than 24 hours before the fire occurred, falls within the concept of ‘circulation of vehicles’ referred to in that provision. Costs 49Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: The first paragraph of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, must be interpreted as meaning that a situation such as that at issue in the main proceedings, in which a vehicle parked in a private garage of a building, used in accordance with its function as a means of transport, has caught fire, giving rise to a fire which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle has not been moved for more than 24 hours before the fire occurred, falls within the concept of ‘use of vehicles’ referred to in that provision. [Signatures]( *1 ) Language of the case: Spanish. | 73116-b27a619-4758 | EN |
The conditions set by the Portuguese Government for the reprivatisation of TAP are compatible with EU law with the exception of the requirement to maintain and develop the existing national hub | 27 February 2019 ( *1 )(Reference for a preliminary ruling — Freedom of establishment — Regulation (EC) No 1008/2008 — Air carrier company — Reprivatisation process — Sale of shares representing up to 61% of the share capital — Conditions — Requirement to keep the headquarters and effective management in a Member State — Public service obligations — Requirement to maintain and develop the existing national hub)In Case C‑563/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 20 June 2017, received at the Court on 25 September 2017, in the proceedings Associação Peço a Palavra, João Carlos Constantino Pereira Osório, Maria Clara Marques Pires Sarmento Franco, Sofia da Silva Santos Arauz, Maria João Galhardas Fitas v Conselho de Ministros, intervening parties: Parpública — Participações Públicas SGPS SA, TAP — Transportes Aéreos Portugueses SGPS SA, THE COURT (Second Chamber),composed of K. Lenaerts, President of the Court, acting as President of the Second Chamber, A. Prechal (Rapporteur) and C. Toader, A. Rosas and M. Ilešič, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 13 September 2018,after considering the observations submitted on behalf of:–Parpública — Participações Públicas SGPS SA, by M. Mendes Pereira, advogado,the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and A. Duarte de Almeida, acting as Agents,the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato,the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,the European Commission, by P. Costa de Oliveira, L. Malferrari and K. Simonsson, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 21 November 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Articles 49, 54, 56 and 57 TFEU and of Articles 2, 16 and 17 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).2The request has been made in proceedings between the Associação Peço a Palavra, a non-profit making organisation subject to Portuguese law, and four natural persons of Portuguese nationality (together, ‘APP and others’) and the Conselho de Ministros (Council of Ministers, Portugal) concerning the validity of a decision setting out certain conditions in the tender specifications for the process of indirectly reprivatising TAP — Transportes Aéreos Portugueses SA (‘TAP’). Legal context European Union law Directive 2006/123 3According to recital 21 of Directive 2006/123, ‘transport services, including urban transport, taxis and ambulances as well as port services, should be excluded from the scope of this Directive’.4It is clear from Article 2(2)(d) of that directive that the directive does not apply to services in the field of transport, including port services, falling within the scope of Title V of Part Three of the EC Treaty, which is now Title VI of Part Three of the FEU Treaty.5In Chapter IV of the directive, entitled ‘Free movement of services’, Article 16 lays down conditions relating to the right of service providers to provide services freely in a Member State other than that in which they are established and Article 17 lists derogations from that right. Regulation (EC) No 1008/2008 6Recitals 10 to 12 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3) state:‘(10)In order to complete the internal aviation market, still existing restrictions applied between Member States, such as restrictions on the code sharing on routes to third countries or on the price setting on routes to third countries with an intermediate stop in another Member State … should be lifted.(11)To take into account the special characteristics and constraints of the outermost regions, in particular their remoteness, insularity and small size, and the need to properly link them with the central regions of the Community, special arrangements may be justified regarding the rules on the period of validity of the contracts for public service obligations covering routes to such regions.(12)The conditions under which public service obligations may be imposed should be defined clearly in an unambiguous way, while the associated tender procedures should allow a sufficient number of competitors to take part in the tenders. The Commission should be able to obtain as much information as necessary to be able to assess the economic justifications for public service obligations in individual cases.’7Article 2 of that regulation, entitled ‘Definitions’, provides:‘For the purposes of this Regulation:1.“operating licence” means an authorisation granted by the competent licensing authority to an undertaking, permitting it to provide air services as stated in the operating licence;…8.“air operator certificate (AOC)” means a certificate delivered to an undertaking confirming that the operator has the professional ability and organisation to ensure the safety of operations specified in the certificate, as provided in the relevant provisions of Community or national law, as applicable;9.“effective control” means a relationship constituted by rights, contracts or any other means which, either separately or jointly and having regard to the considerations of fact or law involved, confer the possibility of directly or indirectly exercising a decisive influence on an undertaking, in particular by:(a)the right to use all or part of the assets of an undertaking;(b)rights or contracts which confer a decisive influence on the composition, voting or decisions of the bodies of an undertaking or otherwise confer a decisive influence on the running of the business of the undertaking;10.“air carrier” means an undertaking with a valid operating licence or equivalent;11.“Community air carrier” means an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II;14.“traffic right” means the right to operate an air service between two Community airports;26.“principal place of business” means the head office or registered office of a Community air carrier in the Member State within which the principal financial functions and operational control, including continued airworthiness management, of the Community air carrier are exercised.’8In Chapter II of Regulation No 1008/2008, entitled ‘Operating licence’, Article 4 provides:‘An undertaking shall be granted an operating licence by the competent licensing authority of a Member State provided that:its principal place of business is located in that Member State;it holds a valid AOC issued by a national authority of the same Member State whose competent licensing authority is responsible for granting, refusing, revoking or suspending the operating licence of the Community air carrier;(f)Member States and/or nationals of Member States own more than 50% of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Community is a party;…’9Article 8(1), (5) and (7) of Regulation No 1008/2008 provides:‘1. An operating licence shall be valid as long as the Community air carrier complies with the requirements of this Chapter.A Community air carrier shall at all times be able on request to demonstrate to the competent licensing authority that it meets all the requirements of this Chapter.5. A Community air carrier shall notify the competent licensing authority:in advance of any intended mergers or acquisitions;7. In relation to Community air carriers licensed by it the competent licensing authority shall decide whether the operating licence shall be resubmitted for approval in case of change in one or more elements affecting the legal situation of a Community air carrier and, in particular, in the case of a merger or takeover.10In Chapter III of Regulation No 1008/2008, entitled ‘Access to routes’, Article 15 provides:‘1. Community air carriers shall be entitled to operate intra-Community air services.2. Member States shall not subject the operation of intra-Community air services by a Community air carrier to any permit or authorisation. Member States shall not require Community air carriers to provide any documents or information which they have already supplied to the competent licensing authority, provided that the relevant information may be obtained from the competent licensing authority in due time.11Article 15(4) and (5) of that regulation lays down rules on code sharing arrangements into which all Community air carriers are permitted to enter.12Also in Chapter III of Regulation No 1008/2008, Article 16(1) and (4) of that regulation, entitled ‘General principles for public service obligations’, states:‘1. A Member State, following consultations with the other Member States concerned and after having informed the Commission, the airports concerned and air carriers operating on the route, may impose a public service obligation in respect of scheduled air services between an airport in the Community and an airport serving a peripheral or development region in its territory or on a thin route to any airport on its territory any such route being considered vital for the economic and social development of the region which the airport serves. That obligation shall be imposed only to the extent necessary to ensure on that route the minimum provision of scheduled air services satisfying fixed standards of continuity, regularity, pricing or minimum capacity, which air carriers would not assume if they were solely considering their commercial interest.The fixed standards imposed on the route subject to that public service obligation shall be set in a transparent and non-discriminatory way.4. When a Member State wishes to impose a public service obligation, it shall communicate the text of the envisaged imposition of the public service obligation to the Commission, to the other Member States concerned, to the airports concerned and to the air carriers operating the route in question.The Commission shall publish an information notice in the Official Journal of the European Union:identifying the two airports connected by the route concerned and possible intermediate stop-over point(s);mentioning the date of entry into force of the public service obligation; and(c)indicating the complete address where the text and any relevant information and/or documentation related to the public service obligation shall be made available without delay and free of charge by the Member State concerned.’ Portuguese law 13By Decree-Law No 181-A/2014 of 24 December 2014 (Diário da República series I, No 248, 24 December 2014), the Council of Ministers lay down the process for the reprivatisation of TAP, including, inter alia, a ‘reference’ direct sale in the amount of up to 61% of the shares in TAP’s parent company, the holding company TAP — Transportes Aéreos Portugueses SGPS SA (‘TAP SGPS’).14The recitals of that decree-law state inter alia:‘The company has strong ties with the country, which should be maintained, and it is therefore appropriate to privilege maintaining its defining characteristic as a “flagship enterprise”. The government considers that the process of TAP’s reprivatisation must respect the strategic importance of its “national hub”, as a fundamental part of the relationship between Europe, Africa and Latin America, of which TAP’s flight operations form an integral part, also having regard to the importance of domestic routes, in particular to connections between the mainland and the islands, which are fundamental to promoting territorial and social cohesion and economic development.’15Article 4(3) of Decree-Law No 181-A/2014 lists certain criteria for selecting proposals to purchase for the purposes of admitting potential purchasers to participate in the following stages of the direct sale process and of choosing the successful offers. It provides that the other appropriate specific conditions will be determined by decision of the Council of Ministers.16Under Article 8 of that decree-law, entitled ‘Legislative framework’:‘1. The definitive and specific conditions governing the transactions to be completed in the reprivatisation of TAP SGPS and the exercise of the powers conferred on the Council of Ministers pursuant to this decree-law shall be determined by the adoption of one or several Resolutions.2. As regards the reference direct sale, the Council of Ministers shall be empowered, inter alia:to approve the tender specifications determining the specific conditions of those transactions and to subject those shares purchased and registered to the rules on inalienability;17Under Article 8 of Decree-Law No 181-A/2014, on 15 January 2015, the Council of Ministers adopted Decision No 4-A/2015 (Diário da República Series I, No 13, of 20 January 2015), including, inter alia, the tender specifications governing the reference direct sale, which is reproduced in Annex I to that decision and incorporated as an integral part thereof (‘the tender specifications’).18Article 1 of the tender specifications, entitled ‘Subject matter’, provides:‘1. These specifications govern the terms and conditions for the reference direct sale of shares in the capital of [TAP SGPS], to be carried out as part of the process for the indirect reprivatisation of the share capital in [TAP]. …2. The reference direct sale involves the disposal, by direct negotiation, of one or more indivisible lots of shares in the capital of [TAP SGPS] to one or more national or foreign investors, individually or as a group.3. The reference direct sale of the shares referred to in the preceding paragraph shall be agreed with one or more tenderers who have been selected as purchasers of the shares covered by the direct sale.4. As part of the reference direct sale, the shares to be purchased by the tenderer or tenderers selected shall be disposed of by Parpública — Participações Públicas SGPS SA.’19Under Article 5 of the tender specifications, entitled ‘Selection criteria’:‘The criteria to be used for selecting one or more entities which will purchase the shares identified in Article 1(2) are as follows:The contribution to strengthening the economic and financial capacity of [TAP SGPS], [TAP] and of their capital structure, … in such a way as to contribute to the sustainability and enhancement of the companies, and to the growth of their business, and to preserve the relative weight and value of the remaining capital held by the State and the value of the put option;The submission of, and performance guarantee for, an adequate and coherent strategic plan with a view to preserving and promoting the growth of [TAP] whilst achieving the objectives defined by the government for the reprivatisation process; promoting the enhancement of its competitive position as a global air carrier operator in its current markets and in new markets; maintaining the integrity, corporate identity and independence of the TAP Group, in particular preserving the TAP trade mark and its association with Portugal and ensuring that the headquarters and effective management of the TAP Group remain in Portugal; contributing to preserving and developing the operational and commercial qualities of the TAP Group, and enhancing and developing its human resources;(d)The capacity to ensure proper compliance, in good time, with the public service obligations of [TAP], including the flight connections between the main national airports and the airports of the autonomous regions, where applicable, and the continuation and further development of the routes serving the autonomous regions, the diaspora and Portuguese-speaking countries and communities;(e)The contribution to the growth of the national economy, including maintaining and developing the current national hub as a platform of vital strategic importance in relations between Europe, Africa and Latin America;20By Decision No 32-A/2015 of 21 May 2015 (Diário da República Series I, No 98, of 21 May 2015), the Council of Ministers considered, following the first stage of the reprivatisation process, that one bid should be rejected, since it did not respect all the conditions set out in the tender specifications and that two other tenderers whose bid was, in essence, equivalent should be invited to participate in the negotiation stage, the second stage of the reprivatisation process.21By Decision No 38-A/2015 of 11 June 2015 (Diário da República Series I, No 113, of 12 June 2015), several companies belonging to the Gateway Group were selected to proceed to share purchases representing 61% of TAP SGPS’s share capital. The improved binding offer submitted by those companies was regarded as stronger in terms of respecting the selection criteria set out in Article 5 of the tender specifications, inter alia, in respect of contributing to reinforcing the economic and financial capacities of the TAP Group.22On 24 June 2015, a contract was signed, in which Parpública — Participações Públicas SGPS SA (‘Parpública’) accepted to sell 61% of TAP SGPS’s share capital to the companies of the Gateway Group for EUR 10 million. That sales contract was subject to certain conditions, compliance with which was required at the latest by 24 June 2016.23By Decision No 30/2016 of 19 May 2016 (Diário da República Series I, No 99, of 23 May 2016), the Council of Ministers took note of a Memorandum of Understanding signed on 6 February 2016 between the Portuguese State and Atlantic Gateway SGPS Lda with a view to amending the terms and conditions of the Portuguese State’s shareholding in TAP SGPS. In that memorandum, the former company accepted to sell back to Parpública sufficient shares so that the Portuguese State would hold 50% of TAP SGPS’s share capital.24As a result of that agreement, the Gateway Group and the Portuguese State hold 45% and 50%, respectively, of TAP SGPS’s share capital, the remaining 5% being held by the TAP Group’s employees. The dispute in the main proceedings and the questions referred for a preliminary ruling 25APP and others brought an action before the referring court, the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking a finding of invalidity or the annulment of Decision No 4-A/2015 of the Council of Ministers of 15 January 2015 in so far as that decision includes the tender specifications governing the reference direct sale of shares representing up to 61% of TAP SGPS’s share capital.26In support of that action, APP and others submit, first of all, that Article 5(c) of the tender specifications, in so far as it requires that the TAP Group’s headquarters and effective management be kept in Portugal, infringes Articles 49 and 54 TFEU, next, that Article 5(d) of the tender specifications, in so far it requires the purchaser of the shares to comply with public service obligations, infringes Articles 56 and 57 TFEU and Articles 16 and 17 of Directive 2006/123, and, lastly, that Article 5(e) of the tender specifications, in so far as it requires that the existing national hub be maintained and developed, falls foul of Articles 56 and 57 TFEU and of Articles 16 and 17 of that directive.27In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does EU law, in particular Articles 49 and 54 TFEU and the principles set out in those articles, in a procedure relating to the process for the indirect reprivatisation of the share capital in a publicly owned company engaged in the activity of air transport, permit the documents establishing that procedure to include the requirement to keep the headquarters and effective management of that company in the Member State where it was incorporated as a criterion for selecting the purchases proposed by the potential investors and for choosing the successful offers?(2)Does EU law, in particular Articles 56 and 57 TFEU and the principles set out in those articles, and the principles of non-discrimination, proportionality and necessity, in a procedure relating to the process for the indirect reprivatisation of the share capital in that company, permit the documents establishing that procedure to include the requirement to comply with the public service obligations on the part of the purchasing entity as a criterion for selecting the purchases proposed by the potential investors and for choosing the successful offers?(3)Does EU law, in particular Articles 56 and 57 TFEU and the principles set out in those articles, in a procedure relating to the process for the indirect reprivatisation of the share capital in that company, permit the documents establishing that procedure to include the requirement to maintain and develop the current national hub on the part of the purchasing entity as a criterion for selecting the purchases proposed by the potential investors and for choosing the successful offers?(4)As regards the activity carried on by that company whose share capital is being disposed of under the reprivatisation procedure, must it be regarded as a service in the internal market subject to the provisions of Directive [2006/123] due to the presence of the exception laid down in Article 2(2)(d) of that directive relating to services in the field of transport, and consequently, does that procedure also have to be shown to be subject to that directive?(5)If the answer to [the fourth] question is in the affirmative, do the provisions of Articles 16 and 17 of that directive, in a procedure relating to the process for the indirect reprivatisation of the share capital in that company, permit the documents establishing that procedure to include the requirement to comply with the public service obligations on the part of the purchasing entity as a criterion for selecting the purchases proposed by the potential investors and for choosing the successful offers?(6)If the answer to [the fourth] question is in the affirmative, do the provisions of Articles 16 and 17 of that directive, in a procedure relating to the process for the indirect reprivatisation of the share capital in that company, permit the documents establishing that procedure to include the requirement to maintain and develop the current national hub on the part of the purchasing entity as a criterion for selecting the purchases proposed by the potential investors and for choosing the successful offers?’ Consideration of the questions referred The fourth to sixth questions 28By its fourth to sixth questions, which it is appropriate to consider together in the first place, the referring court asks, with reference to TAP’s activity in the field of air transport services, whether Directive 2006/123 is relevant, for the purposes of answering the questions referred, in so far as those questions concern the conformity with EU law of the public service obligations and of the requirement to maintain and develop the existing national hub which were imposed under the indirect reprivatisation process of that undertaking.29In that regard, it must be found that a service activity in the air carrier industry, such as TAP’s main business, must be classified as ‘services in the field of transport’ within the meaning of Article 2(2)(d) of Directive 2006/123 read in the light of recital 21 thereof, to which that directive does not apply (see, to that effect, judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 36).30That classification is confirmed by the case-law of the Court, according to which the concept of ‘services in the field of transport’ includes not only transport services in themselves but also any service inherently linked to any physical act of moving persons or goods from one place to another by means of transport (judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 41 and the case-law cited).31Therefore, there is no need to consider the fifth and sixth questions concerning, more particularly, the compatibility with Articles 16 and 17 of Directive 2006/123 of the conditions set out in the tender specifications, which require, in carrying out TAP’s air carrier activity after the reprivatisation of that company, certain requirements relating to public service obligations and to maintaining and developing the national hub of that company.32By contrast, in so far as the Court may extract from the information provided by the referring court the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 16 July 2015, Abcur, C‑544/13 and C‑545/13,EU:C:2015:481, paragraph 34), it should be made clear that, for the purposes of assessing the compatibility with EU law of the conditions set out in the tender specifications, Regulation No 1008/2008, in so far as it establishes common rules for the operation of air services in the European Union, may be relevant.33In the light of the foregoing considerations, the answer to the fourth question is that Directive 2006/123 must be interpreted as irrelevant for the purposes of assessing the compatibility with EU law of certain requirements relating to the activities carried out by an air carrier company, imposed on the purchaser of a qualified holding in the share capital of that company, in particular of the requirement that that purchaser be required to perform public service obligations and to maintain and develop that company’s national hub. The first to third questions Preliminary observations 34By its first to third questions, which it is appropriate to consider together in the second place, the referring court asks, in essence, whether the fundamental freedoms enshrined in the Treaties are respected by certain ‘criteria’ set out in the tender specifications for choosing the purchaser to acquire shares representing up to 61% of the share capital of a holding company, under the reprivatisation process of its subsidiary which operates in the field of air transport, in particular requirements relating to the public service obligations imposed on that subsidiary, to keeping the headquarters and effective management of the group to which those companies belong in the Member State in question and to maintaining and developing the existing national hub.35In that regard, it should be noted, first of all, that, in its written observations and at the hearing before the Court, Parpública, the State-owned company which transferred those shares and owned the shares retained by the Portuguese State, claimed that, in its first to third questions, the referring court was wrong in characterising the criteria as ‘requirements’. It submits that they are merely criteria taken into account in assessing the various bids, since the potential purchaser of the shareholding is not necessarily required to undertake to fulfil those criteria in full. The Portuguese Government also questioned the binding character of the criteria.36According to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly separate. Although it is for the Court to interpret the provisions of EU law, it falls exclusively to the referring court to interpret national legislation. The Court must base itself on the interpretation of national law as described to it by the referring court (see, to that effect, inter alia, judgments of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 52, and of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 24).37Furthermore, the mandatory character of the criteria listed in the tender specifications seems to be confirmed by Article 1(1) thereof, which provides that those tender specifications ‘govern the terms and conditions for the reference direct sale of shares in the capital of [TAP SGPS], to be carried out as part of the process for the indirect reprivatisation of the share capital in [TAP]’.38It seems difficult to dispute that those criteria are capable of binding the purchaser of the shares at issue, since the criteria will, in principle, lead every tenderer participating in the reprivatisation process to undertake, having submitted a tender, to comply with all of the requirements under those criteria.39In addition, it is clear from the file before the Court that, after selecting the purchaser of the shares, agreements were entered into in which that purchaser bound itself contractually to comply with those requirements.40Next, it should be noted that the referring court requests the Court to examine the requirement in the tender specifications of maintaining the headquarters and effective management in the Member State in question in respect of the provisions of the FEU Treaty on the freedom of establishment, and the requirements of the tender specifications on the performance of the public service obligations and on the maintaining and developing of the existing national hub in respect of the provisions of the FEU Treaty on the freedom to provide services.41Those various requirements apply to operators wishing to be selected as the purchaser of the shares subject to the reprivatisation process concerned and thereby to become established in Portugal. The requirements therefore primarily affect the freedom of establishment of the tenderer, although they also have an indirect effect on the services provided by TAP.42In addition, those requirements must be assessed solely in the light of the freedom of establishment and not that of the free movement of capital.43According to the Court’s settled case-law, national legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities falls within the scope of the freedom of establishment (judgments of 13 April 2000, Baars, C‑251/98, EU:C:2000:205, paragraph 22, and of 10 June 2015, X, C‑686/13, EU:C:2015:375, paragraph 18).44In the present case, the purchase of 61% of TAP SGPS’s share capital at the end of the reprivatisation process at issue in the main proceedings appears sufficient to allow the shareholder involved to exert a definite influence on the management and control of that company and thus also over its subsidiary TAP. It seems that that would still be the case following the redefinition of the shareholders in TAP SGPS, after which that shareholding of 61% was reduced to 45%, the Portuguese State having bought back the shares necessary to increase its holding from 34% to 50%.45Lastly, as regards the relevance of Article 345 TFEU, to which Parpública and the Italian Government referred in their written observations submitted to the Court, it is indeed true that the requirements set out in the tender specifications, in so far as they frame the reprivatisation of a State-owned company belonging to one Member State alone, fall within the scope of that article.46However, according to the Court’s settled case-law, Article 345 TFEU does not mean that rules governing the system of property ownership current in the Member States are not subject to the fundamental rules of the FEU Treaty, including, inter alia, the prohibition of discrimination, freedom of establishment and the free movement of capital (judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 36 and the case-law cited). The existence of restrictions on the freedom of establishment 47First of all, as regards the requirement that the purchaser is required to perform the public service obligations at issue in the main proceedings, it must be recalled that, under Article 5(d) of the tender specifications, that requirement concerns ‘the capacity to ensure proper compliance, in good time, with the public service obligations of [TAP], including the flight connections between the main national airports and the airports of the autonomous regions, where applicable, and the continuation and further development of the routes serving the autonomous regions, the diaspora and Portuguese-speaking countries and communities’.48In that context, it is common ground that, as regards scheduled air connections between Portugal and its autonomous regions, such as the outermost regions of the Azores Islands or Madeira Island, that Member State has, in the past, imposed public service obligations on air carriers in respect of air service routes which were, in accordance with Article 16(4) of Regulation No 1008/2008, the subject of notices published in the Official Journal of the European Union. Moreover, it is clear from the file before the Court that the conformity of those obligations with the substantive and procedural requirements laid down in Articles 16 and 17 of that regulation has not been called into question.49According to the Court’s settled case-law, any national measure taken in an area which has been the subject of exhaustive harmonisation at the level of the European Union must be assessed in the light of the provisions of that harmonising measure and not in the light of the provisions of primary law (judgments of 17 November 2015, RegioPost, C‑115/14, EU:C:2015:760, paragraph 57, and of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 15 and the case-law cited).50In that regard, it must be held that, in respect of the public service obligations in the air carrier services industry, Articles 16 to 18 of Regulation No 1008/2008, interpreted in the light of recital 12 thereof, in so far as they govern the substantive and procedural conditions in detail which must be satisfied so that public service obligations may be imposed and in so far as they provide, in addition, for a procedure for reviewing those obligations after they have been imposed, amount to exhaustive harmonisation.51It is clear, in particular, from Article 16(1) of the regulation, that public service obligations can be imposed by a Member State only on certain air routes within the European Union, in particular on those connecting an airport located in the European Union and an airport in a peripheral region in its territory.52It follows that, in so far as Article 5(d) of the tender specifications merely requires the new shareholder selected as a result of the reprivatisation process at issue in the main proceedings to comply with potential public service obligations imposed on TAP in accordance with the substantive and procedural conditions laid down in Articles 16 and 17 of Regulation No 1008/2008, that national measure is in conformity with EU law, and there is no need to consider that measure in respect of primary law, in particular as regards the freedom of establishment.53Next, as regards the requirements resulting from Article 5(c) and (e) of the tender specifications for the purchaser of the shares subject to the reprivatisation process at issue in the main proceedings concerning, on the one hand, keeping the headquarters and effective management in Portugal and, on the other, maintaining and developing the existing national hub, it must be found that those national measures do not relate to a field harmonised by Regulation No 1008/2008, so that they must be assessed in the light of EU primary law, in the present case as regards the freedom of establishment.54In that regard, it must be borne in mind that, according to the Court’s settled case-law, all measures which prohibit, impede or render less attractive the exercise of freedom of establishment must be considered to be restrictions on that freedom within the meaning of Article 49 TFEU (see, inter alia, judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 46 and the case-law cited).55Both requirements at issue in the main proceedings, arising from Article 5(c) and (e) of the tender specifications, undeniably constitute restrictions on the freedom of establishment, since they prohibit, impede or render less attractive the exercise of that freedom.56Those requirements are intended to prevent, at a future time, certain decisions from being taken by TAP SGPS’s bodies at the end of the reprivatisation process and changes to the resulting share structure, in particular decisions intending to transfer the principal place of business or hub of the company concerned outside of Portugal, despite the fact that such decisions could be in the financial interests of the company.57Thus, those requirements mean restrictions on the decision-making powers normally open to the bodies of the company of a purchaser of shares representing up to 61% of TAP SGPS’s share capital, such restrictions being comparable to those which could result from the exercise by a Member State of the powers of Member State shares which confer upon it special rights, namely ‘golden shares’, intended to defend general interests (see, by analogy, judgment of 28 September 2006, Commission v Netherlands, C‑282/04 and C‑283/04, EU:C:2006:608, paragraph 30).58As regards, in particular, the requirements laid down in Article 5(c) of the tender specifications, aiming to ensure that the headquarters and effective management of the TAP Group continue to be located in Portugal, the restrictive character of those requirements cannot, contrary to what has been claimed by Parpública and the Portuguese Government, be called into question on the basis of the judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb (C‑338/09, EU:C:2010:814).59In that judgment, the Court held, inter alia, that the requirement for applicant economic operators to have a seat or permanent establishment in the Member State concerned in order to be licensed to operate a regular bus service was not contrary to EU law where it was applied after the authorisation to operate had been granted and before the business operator commenced operation of that service.60In that regard, the Court pointed out, in particular, that the requirement at issue could not logically constitute, as such, a barrier to, or restriction on, the freedom of establishment since it did not impose the slightest restriction on the freedom of economic operators established in other Member States to create agencies or other establishments in that territory (judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb, C‑338/09, EU:C:2010:814, paragraph 34).61However, the fact remains that that requirement is fundamentally different from the requirement at issue in the main proceedings, which relates to maintaining the headquarters and effective management of the TAP Group in Portugal, that is to say the principal place of business of the companies belonging to that group. That requirement — which is unlimited in time — does not require the creation of a new secondary establishment but that the principal place of business of those companies existing in the Member State concerned be maintained.62In accordance with Articles 49 and 54 TFEU, such a requirement to maintain a principal place of business in the Member State concerned constitutes a restriction to the freedom of establishment of a company incorporated under the legislation of a Member State, that is, in the present case, under Portuguese legislation. That freedom encompasses the right to transfer the principal place of business of the company to another Member State, which requires, if that transfer entails the conversion of the company into a company subject to the law of the latter Member State and the loss of its nationality of origin, compliance with the conditions for incorporation laid down in the legislation of the Member State of relocation (see, to that effect, judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraphs 33 to 35). Potential justification for the restrictions on the freedom of establishment 63The issue then arises of whether the requirements arising from Article 5(c) and (e) of the tender specifications, relating to maintaining TAP’s headquarters and effective management in Portugal and to maintaining and developing the existing national hub, respectively, which have been found to constitute restrictions to the freedom of establishment of the purchaser of the shares subject to the reprivatisation process at issue in the main proceedings, may be justified by an overriding reason in the public interest, which requires that they are appropriate for ensuring the attainment of the objective in question and do not go beyond what is necessary to attain that objective (see, to that effect, inter alia, judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 52).64In that regard, in the first place, the Court rejects the Netherlands Government’s submission that the requirement relating to maintaining TAP’s headquarters and effective management in Portugal is justified by the objective of policing compliance with the requirement to fulfil the public service obligations arising from Article 5(d) of the tender specifications.65As the Advocate General stated in point 85 of his Opinion, for the purposes of policing such compliance, there are measures less restrictive of the freedom of establishment, such as the requirement of a secondary establishment. In addition, a requirement for any air carrier company to maintain its principal place of business in a Member State on the sole ground that it operates an air connection from or to that Member State subject to a public service obligation would be manifestly disproportionate.66As regards, in the second place, the identification of overriding reasons in the public interest potentially relevant for the purposes of justifying the restrictive measures arising from Article 5(c) and (e) of the tender specifications, it is clear from the preamble to Decree-Law No 181-A/2014 that the tender specifications must take account of the fact that TAP is a company which ‘has strong ties with the country, which should be maintained, and [that] it is therefore appropriate to privilege maintaining its defining characteristic as a “flagship enterprise”’, and that the tender specifications must ensure that TAP’s reprivatisation process respects, inter alia, the ‘strategic importance of its “national hub”, as a fundamental part of the relationship between Europe, Africa and Latin America, of which TAP’s flight operations form an integral part’, also having regard to the ‘importance of domestic routes, in particular to connections between the mainland and the islands, which are fundamental to promoting territorial and social cohesion and economic development’.67Those general aims are reproduced in Article 5(c) of the tender specifications in so far as they include ‘the submission of, and performance guarantee for, an adequate and coherent strategic plan with a view to preserving and promoting the growth of [TAP] whilst achieving the objectives defined by the government for the reprivatisation process; promoting the enhancement of its competitive position as a global air carrier operator in its current markets and in new markets; maintaining the integrity, corporate identity and independence of the TAP Group, in particular preserving the TAP trade mark and its association with Portugal and ensuring that the headquarters and effective management of the TAP Group remain in Portugal; contributing to preserving and developing the operational and commercial qualities of the TAP Group, and enhancing and developing its human resources’.68The same general aims are also clear from Article 5(e) of the tender specifications, which refers to ‘the contribution to the growth of the national economy, including maintaining and developing the existing national hub as a platform of vital strategic importance in relations between Europe, Africa and Latin America’.69It is also relevant in that regard that Article 5(d) of the tender specifications refers to ‘the flight connections between the main national airports and the airports of the autonomous regions, where applicable, and [to] the continuation and further development of the routes serving the autonomous regions, the diaspora and Portuguese-speaking countries and communities’.70In that regard, it must be borne in mind that, in so far as Article 5(c) and (e) of the tender specifications refers to objectives such as preserving and promoting the growth of TAP, reinforcing the economic strength of that company, contributing to preserving and developing the operational and commercial qualities of the TAP Group and contributing to the growth of the national economy, it is settled case-law that purely economic grounds, such as, in particular, promotion of the national economy or its proper functioning, cannot serve as justification for an obstacle to one of the fundamental freedoms enshrined in the Treaties (see, inter alia, judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 72).71However, as Parpública and the Portuguese Government submitted, in essence, Article 5(c) and (e) of the tender specifications, read in conjunction with Article 5(d) thereof and with the preamble to Decree-Law No 181-A/2014, in so far as its aims to safeguard the continuation and further development of TAP’s air routes which serve third countries with particular historical, cultural and social ties to the Portuguese Republic in which Portuguese is the official language or one of the official languages, such as the Republic of Angola, the Republic of Mozambique or the Federative Republic of Brazil, relates to an overriding reason in the public interest capable justifying a restriction to the freedom of establishment.72In that regard, it must be borne in mind that the guarantee of a service of general interest may constitute an overriding reason in the public interest capable of justifying an obstacle to one of the fundamental freedoms enshrined in the Treaties (see, by analogy, judgment of 28 September 2006, Commission v Netherlands, C‑282/04 and C‑283/04, EU:C:2006:608, paragraph 38).73It follows that the relevant overriding reason in the public interest for the purposes of justifying the restrictive measures arising from Article 5(c) and (e) of the tender specifications consists of safeguarding the public interest service aimed at ensuring that there are sufficient scheduled air services to and from Portuguese-speaking third countries with which Portugal has particular historical, cultural and social ties.74In the third place, as regards whether the requirement arising from Article 5(c) of the tender specifications relating to maintaining TAP’s headquarters and effective management in Portugal may be justified, the fact remains, as pointed out by the Advocate General in point 89 of his Opinion, that that requirement is proportionate to that overriding reason in the public interest.75Subject to verification by the referring court, it is clear from the file before the Court that bilateral agreements have been entered into between the Portuguese Republic and certain third countries, including precisely those Portuguese-speaking third countries which have particular historical, cultural and social ties to the Portuguese Republic, such as the Republic of Angola, the Republic of Mozambique or the Federative Republic of Brazil, which subject TAP’s traffic rights for air routes with those countries to maintaining TAP’s principal place of business in Portugal.76Subject to verification by the referring court, it thus follows from those bilateral agreements that TAP would lose its traffic rights on routes to or from those third countries if it were to transfer its principal place of business outside of Portugal. Therefore, it is clear that a requirement such as that arising from Article 5(c) of the tender specifications, in so far as it requires that TAP’s principal place of business be maintained in that Member State, is an appropriate measure for acting upon the overriding reason in the public interest of ensuring that there are sufficient scheduled air routes to and from the Portuguese-speaking third countries concerned with which Portugal has particular historical, cultural and social ties.77In addition, that requirement does not go beyond what is necessary for that overriding reason in the public interest since moving TAP’s principal place of business outside of Portugal would, in accordance with Article 8(1) of Regulation No 1008/2008, read in conjunction with Article 4(a) of the regulation, mean losing the validity of the operating licence and of the AOC issued to TAP by the competent Portuguese authority, thereby precluding the operation of all scheduled air route services, including those to and from the Portuguese-speaking third countries concerned, it being common ground that those air routes form a substantial share of TAP’s business.78In addition, the proportionality of that requirement as regards the overriding reason in the public interest referred to in paragraph 73 above is corroborated by the fact that that requirement does not preclude TAP from creating secondary establishments, such as branches or subsidiaries outside of Portugal.79In the fourth place, the issue arises of whether the requirement under Article 5(e) of the tender specifications relating to maintaining and developing the existing national hub is justified as regards the objective of safeguarding the public interest service of ensuring that there are sufficient scheduled air route services to and from the Portuguese-speaking third countries concerned with which Portugal has particular historical, cultural and social ties.80In that regard, it has not been established that maintaining the organisational model of the air connection services of the existing national hub is necessary for the purposes of attaining the objective of air connections with the Portuguese-speaking third countries concerned. A priori it is not clear that it cannot be ruled out that that objective may be obtained by means of a different organisational model.81In any event, although it also does not seem necessarily ruled out that the model of the existing national hub may constitute a useful means of attaining that objective, the fact remains that that model applies to all air routes and not only those to and from the Portuguese-speaking third countries concerned.82It follows that the requirement for the purposes of ensuring that the existing national hub is maintained and developed goes beyond what is necessary to attain the intended objective of ties with those third countries.83In the light of all of the foregoing considerations, the answer to the first to third questions is that Article 49 TFEU must be interpreted as not precluding tender specifications governing the conditions to which a reprivatisation process of an air carrier company is subject from including:a requirement that the purchaser of the shares subject to the reprivatisation process has the capacity to fulfil the performance of the public service obligations on that air carrier company, anda requirement that the purchaser maintain that air carrier company’s headquarters and effective management in the Member State concerned, in so far as the transfer of that company’s principal place of business outside of that Member State would mean that company losing the air traffic rights conferred on it under bilateral agreements between that Member State and third countries with which that Member State has particular historical, cultural and social ties, which is for the referring court to ascertain.Article 49 TFEU must be interpreted as precluding those tender specifications from including a requirement that the purchaser of those shares ensure that the existing national hub is maintained and developed. Costs 84Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: 1. Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as irrelevant for the purposes of assessing the compatibility with EU law of certain requirements relating to the activities carried out by an air carrier company, imposed on the purchaser of a qualified holding in the share capital of that company, in particular of the requirement that that purchaser be required to perform public service obligations and to maintain and develop that company’s national hub. 2. Article 49 TFEU must be interpreted as not precluding tender specifications governing the conditions to which a reprivatisation process of an air carrier company is subject from including: a requirement that the purchaser of the shares subject to the reprivatisation process has the capacity to fulfil the performance of the public service obligations on that air carrier company, and a requirement that the purchaser maintain that air carrier company’s headquarters and effective management in the Member State concerned, in so far as the transfer of that company’s principal place of business outside of that Member State would mean that company losing the air traffic rights conferred on it under bilateral agreements between that Member State and third countries with which that Member State has particular historical, cultural and social ties, which is for the referring court to ascertain. Article 49 TFEU must be interpreted as precluding those tender specifications from including a requirement that the purchaser of those shares ensure that the existing national hub is maintained and developed. [Signatures]( *1 ) Language of the case: Portuguese. | 1aeac-ed4ff80-45e6 | EN |
Advocate General Campos Sánchez-Bordona proposes that the Court of Justice declare that a child in the legal guardianship of an EU citizen under the Algerian Kafala system cannot be classed as a ‘direct descendant’ of that citizen | 26 March 2019 ( *1 )(Reference for a preliminary ruling — Citizenship of the European Union — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Family members of a citizen of the Union — Article 2(2)(c) — ‘Direct descendant’ — Child in permanent legal guardianship under the Algerian kafala (provision of care) system — Article 3(2)(a) — Other family members — Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union — Family life — Best interests of the child)In Case C‑129/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 14 February 2018, received at the Court on 19 February 2018, in the proceedings SM v Entry Clearance Officer, UK Visa Section, in the presence of: Coram Children’s Legal Centre (CCLC), AIRE Centre, THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, A. Prechal, M. Vilaras and K. Jürimäe (Rapporteur), Presidents of Chambers, A. Rosas, E. Juhász, M. Ilešič, D. Šváby, C.G. Fernlund, N. Piçarra and L.S. Rossi, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: L. Hewlett, Principal Administrator,having regard to the written procedure and further to the hearing on 4 December 2018,after considering the observations submitted on behalf of:–SM, by T. Muman and R. de Mello, Barristers, and by L. Tang, Solicitor,Coram Children’s Legal Centre (CCLC), by M.S. Gill QC, and by N. Acharya and S. Freeman, Solicitors,AIRE Centre, by A. O’Neill QC, D. Chirico and C. Robinson, Barristers, A. Lidbetter, M. Evans, L. Nassif, C. Hall, C. Iacono, A. Thornton, M. Papadouli and A. Tidona, Solicitors, L. Van den Hende, advocaat, and N. Mole, Senior Counsel,the United Kingdom Government, by F. Shibli and R. Fadoju, acting as Agents, and by B. Kennelly QC,the Belgian Government, by M. Jacobs and L. Van den Broeck, acting as Agents, and by E. Derriks, avocate,the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,the German Government, by T. Henze and R. Kanitz, acting as Agents,the Netherlands Government, by J.M. Hoogveld and M.K. Bulterman, acting as Agents,the Polish Government, by B. Majczyna, acting as Agent,the European Commission, by E. Montaguti and M. Wilderspin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 26 February 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 2(2)(c) and Articles 27 and 35 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35).2The request has been made in proceedings between SM, an Algerian national, and the Entry Clearance Officer, UK Visa Section (‘the Entry Clearance Officer’), concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child of a national of the European Economic Area (EEA). Legal context International law The 1993 Hague Convention 3The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, signed at The Hague on 29 May 1993 (‘the 1993 Hague Convention’), was ratified or acceded to by all the Member States of the European Union.4Pursuant to Article 1(a) and (b) thereof, the purpose of that convention is, inter alia, to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law and to establish a system of cooperation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children.5Under Article 2(2) thereof, that convention ‘covers only adoptions which create a permanent parent-child relationship’. The 1996 Hague Convention 6The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (‘the 1996 Hague Convention’), was ratified or acceded to by all the Member States of the European Union.7That convention lays down rules intended to improve the protection of children in international situations and to avoid conflicts between the legal systems of the Signatory States in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.8Under Article 3(e) of that convention, measures for the protection of children may deal in particular with ‘the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution’.9Article 4(b) of that convention excludes ‘decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption’ from the scope of that convention.10Article 33 of the 1996 Hague Convention lays down the procedure to be followed, both in the child’s country of origin and in the host State, for the purposes of the international placement of that child, including in the case of ‘the provision of care by kafala’. European Union law 11Recitals 5, 6 and 31 of Directive 2004/38 are worded as follows:‘(5)The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. ...(6)In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen....(31)This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union ...’12Article 2 of that directive, entitled ‘Definitions’, provides, in point 2(c) thereof:‘For the purposes of this Directive:(2)“family member” means:(c)the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)’.13Article 3 of that directive, entitled ‘Beneficiaries’, provides:‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:(a)any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’14Article 7(2) of that directive provides:‘The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c).’15Article 27 of Directive 2004/38 sets out the general principles relating to restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health.16Article 35 of that directive, headed ‘Abuse of rights’, states:‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.’ United Kingdom law The rules on immigration 17The Immigration (European Economic Area) Regulations 2006, in the version applicable to the dispute in the main proceedings (‘the 2006 Regulations’), transposed Directive 2004/38 into United Kingdom law.18Regulation 7 of the 2006 Regulations provides:‘(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—(b)direct descendants of his, his spouse or his civil partner who are—(i)under 21; or(ii)dependants of his, his spouse or his civil partner ...’19Regulation 8 of the 2006 Regulations defines an ‘extended family member’ as follows:‘(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—the person is residing in [a country other than the United Kingdom] in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; orthe person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).’20According to the information provided by the referring court, under regulation 12(1) of the 2006 Regulations, the Entry Clearance Officer must issue an ‘EEA family permit’ to a ‘family member’ where certain conditions are satisfied. Under regulation 12(2) of those regulations, that Entry Clearance Officer may issue such a permit to an ‘extended family member’ if certain conditions are satisfied or, in any event, if he considers it appropriate to do so. The rules on adoption 21Unless the Adoption with a Foreign Element Regulations 2005 have been complied with, the bringing of a child into the United Kingdom for the purposes of his or her adoption in that country or the bringing of a child into the United Kingdom who has already been adopted in another country is punishable under Section 83 of the Adoption and Children Act 2002. Those regulations require, inter alia, a United Kingdom adoption agency to assess the suitability of persons wishing to adopt. However, that requirement does not apply to adoptions under the 1993 Hague Convention, implemented in United Kingdom law by the Adoption (Intercountry Aspects) Act 1999.22Section 66(1) of the Adoption and Children Act 2002 lists those adoptions which are recognised by the law of England and Wales as conferring the status of adopted child on a child. Kafala (provision of care) is not included in that list. The dispute in the main proceedings and the questions referred for a preliminary ruling 23Mr and Ms M are two French nationals who married in the United Kingdom in 2001. They travelled to Algeria in 2009 in order to be assessed as to their suitability to become guardians of a child under the Algerian kafala system. Following that assessment, they were deemed ‘suitable’ to take in a child under that system.24SM, who was born in Algeria on 27 June 2010, was abandoned by her biological parents at birth.25Mr and Ms M applied for guardianship of SM under the Algerian kafala system.26That application triggered a waiting period of three months, during which SM’s biological parents had the possibility of reversing their decision to abandon her, which they failed to do.27By act of the President of the tribunal de Boufarik (Boufarik Tribunal, Algeria) of 22 March 2011, SM was placed in the guardianship of Mr and Ms M, who were assigned parental responsibility under Algerian law. Under that act, Mr and Ms M undertook to ‘give an Islamic education to the child ..., keep her fit morally and physically, supplying her needs, looking after her teaching, treating her like natural parents, protect her, defend her before judicial instances [and] assume civil liability for detrimental acts’. That act authorises Mr and Ms M to obtain family allowances, subsidies and benefits, to sign any administrative and travel documents, and to travel with SM outside Algeria.28By decision of the tribunal de Tizi Ouzou (Tizi Ouzou Tribunal, Algeria) of 3 May 2011, SM’s surname, as entered on her birth certificate, was changed to Mr and Ms M’s surname.29In October 2011, Mr M returned to the United Kingdom, where he has a permanent right of residence, for professional reasons. For her part, Ms M remained in Algeria with SM.30In May 2012, SM applied for entry clearance for the United Kingdom as the adopted child of an EEA national. Her application was refused by the Entry Clearance Officer on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for intercountry adoption.31SM brought an action before the First-tier Tribunal (Immigration and Asylum Chamber) (United Kingdom). That action was dismissed by judgment of 7 October 2013. According to that tribunal, SM did not satisfy the conditions to be regarded as an adopted child under the United Kingdom rules on immigration or as a family member, an extended family member or the adopted child of an EEA national within the meaning of the 2006 Regulations.32In addition, that tribunal considered that Mr and Ms M had taken steps, in Algeria, to obtain custody of a child under the kafala system, having learned that it was easier to obtain custody of a child in that country than in the United Kingdom. That tribunal also noted that the procedure for assessing their suitability to become guardians, at the end of which they were deemed ‘suitable’ to take in a child under the Algerian kafala system, was ‘limited’.33SM brought an appeal against that judgment before the Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom). By judgment of 14 May 2014, that tribunal ruled in her favour, stating that, although she could not be regarded as a ‘family member’ of a citizen of the Union within the meaning of regulation 7 of the 2006 Regulations, she was, by contrast, an ‘extended family member’ of such a citizen within the meaning of regulation 8 thereof.34The Entry Clearance Officer brought an appeal against that judgment before the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). By judgment of 4 November 2015, that court upheld the appeal, considering, in particular, that SM was not a ‘direct descendant’ of a citizen of the Union for the purposes of Article 2(2)(c) of Directive 2004/38, given that she had not been adopted in a form recognised by United Kingdom law. In addition, that court held that SM could not come within the scope of Article 3(2)(a) of that directive as one of the ‘other family members’ of a citizen of the Union either.35SM was granted permission to appeal to the referring court, the Supreme Court of the United Kingdom.36According to the referring court, SM must, at the very least, be regarded as one of the ‘other family members’ of a citizen of the Union as referred to in Article 3(2)(a) of Directive 2004/38. That concept is sufficiently broad to cover a child in respect of whom a citizen of the Union has parental responsibility under the law of the child’s country of origin, even if there is no biological or adoptive link between the child and that citizen. SM is a dependent and a member of the household comprising Mr and Ms M in Algeria.37However, that court is of the view that Article 3(2)(a) of that directive applies only if SM does not have the right to enter the United Kingdom as a ‘direct descendant’ of a citizen of the Union as referred to in Article 2(2)(c) thereof.38In that regard, the referring court questions whether a child placed under a guardianship system, such as the Algerian kafala system, falls to be described as a ‘direct descendant’ for the purposes of Article 2(2)(c) of Directive 2004/38.39According to the referring court, a positive answer to that question could be derived from point 2.1.2 of the communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38 (COM(2009) 313 final), which includes ‘minors in custody of a permanent legal guardian’ in the definition of a ‘direct descendant’.40Such an answer could also be supported by the fact that, since there is no reference in Article 2(2)(c) of Directive 2004/38 to the legislation of the Member States, the concept of a ‘direct descendant’ should be interpreted autonomously, uniformly and in line with the objectives of that directive. However, the free movement of citizens of the Union could be hindered if Member States were free to recognise children in the Algerian kafala system as direct descendants.41Having said that, the referring court also observes that an autonomous interpretation of that concept need not necessarily be broad and that an interpretation whereby a child placed under the Algerian kafala system would be regarded as a ‘direct descendant’ could lead to the placing of children in households which, according to the legislation of the host Member State, would not be regarded as suitable for hosting children. Such an interpretation could also give rise to a risk of exploitation, abuse and trafficking of children, which the 1993 Hague Convention seeks to prevent and deter.42The referring court therefore questions whether the right of entry to the territory of the host Member State of a citizen of the Union of a child placed under the Algerian kafala system may be restricted pursuant to Articles 27 and 35 of Directive 2004/38 where the child is, or where there is a risk that he or she may be, a victim of exploitation, abuse or trafficking. In addition, it questions whether, for the purposes of applying Article 2(2)(c) of that directive, a Member State may verify that the best interests of the child were taken into account when that child was placed in guardianship.43In those circumstances, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under kafala or some equivalent arrangement provided for in the law of his or her country of origin, a ‘direct descendant’ within the meaning of Article 2(2)(c) of Directive 2004/38?Can other provisions in the Directive, in particular Articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?(3)Is a Member State entitled to enquire, before recognising a child who is not the consanguineous descendant of [a citizen of the Union] as a direct descendant under Article 2(2)(c), into whether the procedure for placing the child in the guardianship or custody of that [citizen of the Union] was such as to give sufficient consideration to the best interests of that child?’ Consideration of the questions referred The first question 44By its first question, the referring court asks, in essence, whether the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 is to be interpreted as including a child who has been placed in the permanent legal guardianship of one or more citizens of the Union under Algerian kafala.45As a preliminary point, it is apparent from the evidence in the file submitted to the Court that, as the Advocate General noted in points 36 to 38 of his Opinion, under Algerian law kafala is where an adult undertakes to assume responsibility for the care, education and protection of a child, in the same way a parent would for their child, and to assume legal guardianship of that child. Unlike adoption, which is prohibited by Algerian law, the placing of a child under kafala does not mean that the child becomes the guardian’s heir. In addition, kafala comes to an end when the child attains the age of majority and may be revoked at the request of the biological parents or the guardian.46All the governments who have filed written observations emphasise that the concept of a ‘direct descendant’ referred to in Article 2(2)(c) of Directive 2004/38 requires there to be a parent-child relationship, either biological or adoptive, between the child and the citizen of the Union. According to those governments, that concept cannot therefore include a child placed under the Algerian kafala system, given that that guardianship system does not create such a relationship between the child and its guardian.47By contrast, SM, Coram Children’s Legal Centre (CCLC), AIRE Centre and the European Commission are of the view that the concept of a ‘direct descendant’ may include a child in respect of whom a citizen of the Union has assumed permanent legal guardianship, such as Algerian kafala. They argue that such an interpretation is necessary, in essence, in order to preserve, in the best interests of that child, the family life which he or she has with his or her guardian.48In that regard, it should be borne in mind that, under Article 3(1) thereof, Directive 2004/38 is to apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in Article 2(2) of that directive who accompany or join them.49Those family members of the citizen of the Union include, inter alia, under Article 2(2)(c) of Directive 2004/38, his or her ‘direct descendants’ who are under the age of 21 or are dependants.50That provision makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of a ‘direct descendant’. In those circumstances, the need for a uniform application of EU law and the principle of equality require that the terms of that provision must normally be given an independent and uniform interpretation throughout the European Union (see, to that effect, judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 32).51In addition, Directive 2004/38 does not contain any definition of the concept of a ‘direct descendant’ for the purposes of Article 2(2)(c) thereof. In those circumstances, according to the settled case-law of the Court, in interpreting that provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraph 49).52In that regard, it should be noted that the concept of a ‘direct descendant’ commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person. Where there is no parent-child relationship between the citizen of the Union and the child concerned, that child cannot be described as a ‘direct descendant’ of that citizen for the purposes of Directive 2004/38.53Although that concept primarily focuses on the existence of a biological parent-child relationship, it should nonetheless be borne in mind that, according to settled case-law, the aim of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and that one of the objectives of that directive is to strengthen that right (judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 35, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 18). In view of those objectives, the provisions of Directive 2004/38, including Article 2(2) thereof, must be construed broadly (see, to that effect, judgments of 16 January 2014, Reyes, C‑423/12, EU:C:2014:16, paragraph 23, and of 10 July 2014, Ogieriakhi, C‑244/13, EU:C:2014:2068, paragraph 40).54Therefore it must be considered that the concept of a ‘parent-child relationship’ as referred to in paragraph 52 above must be construed broadly, so that it covers any parent-child relationship, whether biological or legal. It follows that the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 must be understood as including both the biological and the adopted child of such a citizen, since it is established that adoption creates a legal parent-child relationship between the child and the citizen of the Union concerned.55By contrast, that requirement for a broad interpretation cannot justify an interpretation, such as that which is apparent from point 2.1.2 of Communication COM(2009) 313 final, whereby a child placed in the legal guardianship of a citizen of the Union is included in the definition of a ‘direct descendant’ for the purposes of Article 2(2)(c) of Directive 2004/38.56Given that the placing of a child under the Algerian kafala system does not create a parent-child relationship between the child and its guardian, a child, such as SM, who is placed in the legal guardianship of citizens of the Union under that system cannot be regarded as a ‘direct descendant’ of a citizen of the Union for the purposes of Article 2(2)(c) of Directive 2004/38.57That being said, such a child does fall, as was emphasised by the referring court, under the definition of one of the ‘other family members’ referred to in Article 3(2)(a) of Directive 2004/38.58Under that provision, Member States are, in accordance with their national legislation, to facilitate entry and residence for ‘any other family members ... who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence’.59The words used in that provision are thus capable of covering the situation of a child who has been placed with citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those citizens assume responsibility for its care, education and protection, in accordance with an undertaking entered into on the basis of the law of the child’s country of origin.60As follows from recital 6 of Directive 2004/38, the objective of Article 3(2)(a) thereof is to ‘maintain the unity of the family in a broader sense’ by facilitating entry and residence for persons who are not included in the definition of ‘family member’ of a Union citizen contained in Article 2(2) of that directive but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds (judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 32).61According to the case-law of the Court, Article 3(2) of Directive 2004/38 imposes an obligation on the Member States to confer a certain advantage on applications submitted by the third-country nationals referred to in that article, compared with applications for entry and residence of other third-country nationals (see, to that effect, judgments of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 21, and of 12 July 2018, Banger, C‑89/17, EU:C:2018:570, paragraph 31).62Thus, the Member States must, in accordance with that provision, make it possible for the persons envisaged therein to obtain a decision on their application that is founded on an extensive examination of their personal circumstances, taking account of the various factors that may be relevant, and, in the event of refusal, is justified by reasons (see, to that effect, judgments of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraphs 22 and 23, and of 12 July 2018, Banger, C‑89/17, EU:C:2018:570, paragraphs 38 and 39).63It is true that each Member State has a wide discretion as regards the selection of the factors to be taken into account, provided that their legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ used in Article 3(2) of Directive 2004/38 and which do not deprive that provision of its effectiveness (see, to that effect, judgments of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 24, and of 12 July 2018, Banger, C‑89/17, EU:C:2018:570, paragraph 40).64However, that discretion must, having regard to recital 31 of Directive 2004/38, be exercised in the light of and in line with the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, by analogy, judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 79 and 80 and the case-law cited).65In that regard, Article 7 of the Charter recognises the right to respect for private and family life. As is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed by Article 7 thereof have the same meaning and the same scope as those guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, to that effect, judgments of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 53, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 49).66It is apparent from the case-law of the European Court of Human Rights that the actual relationship which a child placed under the kafala system maintains with its guardian may fall under the definition of family life, having regard to the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child (see, to that effect, ECtHR, 16 December 2014, Chbihi Loudoudi and Others v. Belgium, CE:ECHR:2014:1216JUD005226510, § 78). According to that case-law, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms protects the individual against arbitrary action by the public authorities and requires those authorities, where the existence of a family tie has been established, to enable that tie to be developed and to establish legal safeguards that render possible the child’s integration in his family (see, to that effect, ECtHR, 4 October 2012, Harroudj v. France, CE:ECHR:2012:1004JUD004363109, § 40 and 41, and ECtHR, 16 December 2014, Chbihi Loudoudi and Others v. Belgium, CE:ECHR:2014:1216JUD005226510, § 88 and 89).67Article 7 of the Charter must, moreover, be read in conjunction with the obligation to take into consideration the best interests of the child, which are recognised in Article 24(2) thereof (see, to that effect, judgments of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 58; of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 54; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 70).68Accordingly, in order to comply with those provisions when exercising their discretion, it is for the competent national authorities, when implementing the obligation to facilitate entry and residence for the other family members laid down in Article 3(2)(a) of Directive 2004/38, to make a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned (see, by analogy, judgments of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81; of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 85; and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 41).69That assessment must take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.70In the context of that assessment, it is also necessary to take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking. Such risks cannot, however, be assumed in the light of the fact that the procedure for placement under the Algerian kafala system is based on an assessment of the suitability of the adult and of the interests of the child which is less extensive than the procedure carried out in the host Member State for the purposes of an adoption or the placement of a child or in the light of the fact that the procedure provided for in the 1996 Hague Convention has not been applied because that convention was not ratified by the third country concerned. Such facts must, on the contrary, be weighed against the other relevant elements of fact, such as those set out in paragraph 69 above.71In the event that it is established, following the assessment of the elements referred to in paragraphs 69 and 70 above, that the child placed under the Algerian kafala system and its guardians, who are citizens of the Union, are called to lead a genuine family life and that that child is dependent on its guardians, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence as one of the other family members of the citizens of the Union for the purposes of Article 3(2)(a) of Directive 2004/38, read in the light of Article 7 and Article 24(2) of the Charter, in order to enable the child to live with its guardians in their host Member State.72This applies a fortiori where, as a result of a refusal to grant the child placed under the Algerian kafala system a right of entry and residence in the host Member State of its guardians, who are citizens of the Union, those guardians are in fact prevented from living together in that Member State because one of them is required to remain, with the child, in that child’s third country of origin in order to care for the child.73In the light of all of the foregoing, the answer to the first question referred is as follows:the concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38 must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them;however, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State. The second question 74By its second question, the referring court seeks, in essence, to ascertain whether Articles 27 and 35 of Directive 2004/38 are to be interpreted as meaning that, in the event that there is a risk that a child placed under the Algerian kafala system may be subject to abuse, exploitation or trafficking, that child may be refused the right of entry or residence as a family member of a citizen of the Union in that citizen’s host Member State.75It is apparent from the request for a preliminary ruling in the present case that that question is raised in the event that a child, such as SM, placed in the legal guardianship of a citizen of the Union under Algerian kafala falls under the definition of a ‘direct descendant’ of that citizen for the purposes of Article 2(2)(c) of Directive 2004/38, which in principle provides it with an automatic right of entry and residence in that citizen’s host Member State under Article 7(2) of that directive. However, it follows from the answer to the first question that such a child cannot fall under that definition.76In those circumstances, there is no need to answer the second question put by the referring court. The third question 77In the light of the answer to the first question, there is no need to answer the third question. Costs 78Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them. However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State. LenaertsSilva de LapuertaArabadjievPrechalVilarasJürimäeRosasJuhászIlešičŠvábyFernlundPiçarraRossiDelivered in open court in Luxembourg on 26 March 2019.A. Calot EscobarRegistrarK. LenaertsPresident( *1 ) Language of the case: English. | 5e925-01916dd-4272 | EN |
The Organic production logo of the European Union cannot be placed on meat derived from animals that have been slaughtered in accordance with religious rites without first being stunned | 26 February 2019 ( *1 )(Reference for a preliminary ruling — Article 13 TFEU — Animal welfare — Regulation (EC) No 1099/2009 — Protection of animals at the time of killing — Particular methods of slaughter prescribed by religious rites — Regulation (EC) No 834/2007 — Articles 3 and 14(1)(b)(viii) — Compatibility with organic production — Regulation (EC) No 889/2008 — First paragraph of Article 57 — Organic production logo of the European Union)In Case C‑497/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles, France), made by decision of 6 July 2017, received at the Court on 10 July 2017, in the proceedings Œuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation, Bionoor SARL, Ecocert France SAS, Institut national de l’origine et de la qualité (INAO), THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, F. Biltgen, K. Jürimäe and C. Lycourgos, Presidents of Chambers, J. Malenovský, E. Levits, L. Bay Larsen, D. Šváby (Rapporteur), C. Vajda and S. Rodin, Judges,Advocate General: N. Wahl,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 19 June 2018,after considering the observations submitted on behalf of:–Œuvre d’assistance aux bêtes d’abattoirs (OABA), by A. Monod, avocat,Bionoor SARL, by N. Gardères, avocat,Ecocert France SAS, by D. de Laforcade, avocat,the French Government, by D. Colas, S. Horrenberger and E. de Moustier, acting as Agents,the Greek Government, by G. Kanellopoulos and A. Vasilopoulou, acting as Agents,the Norwegian Government, by A. Dalheim Jacobsen, T. Bjerre Leming and D. Sørlie Lund, acting as Agents,the European Commission, by A. Bouquet, A. Lewis and B. Eggers, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 20 September 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 13 TFEU, Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1), Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Regulation No 834/2007 (OJ 2008 L 250, p. 1), as amended by Regulation (EU) No 271/2010 of 24 March 2010 (OJ 2010 L 84, p. 19), (‘Regulation No 889/2008’) and Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ 2009 L 303, p. 1).2The request has been made in proceedings between the association Œuvre d’assistance aux bêtes d’abattoirs (‘OABA’) and the ministre de l’Agriculture et de l’Alimentation (Minister for Agriculture and Food; ‘the Minister for Agriculture’), Bionoor SARL, Ecocert France SAS (‘Ecocert’) and the Institut national de l’origine et de la qualité (‘INAO’) in relation to an application from OABA for the prohibition of the advertising and marketing of beef products bearing the brand ‘Tendre France’, certified ‘halal’ and showing the indication ‘organic farming’ (‘the “organic farming” indication’). Legal context EU law Regulation No 834/2007 3Recitals 1 and 3 of Regulation No 834/2007 state:‘(1)Organic production is an overall system of farm management and food production that combines best environmental practices, a high level of biodiversity, the preservation of natural resources, the application of high animal welfare standards and a production method in line with the preference of certain consumers for products produced using natural substances and processes. The organic production method thus plays a dual societal role, where it on the one hand provides for a specific market responding to a consumer demand for organic products, and on the other hand delivers public goods contributing to the protection of the environment and animal welfare, as well as to rural development.…(3)The [EU] legal framework governing the sector of organic production should pursue the objective of ensuring fair competition and a proper functioning of the internal market in organic products, and of maintaining and justifying consumer confidence in products labelled as organic. It should further aim at providing conditions under which this sector can progress in line with production and market developments.’4Article 1 of that regulation, headed ‘Aim and scope’, provides:‘1. This Regulation provides the basis for the sustainable development of organic production while ensuring the effective functioning of the internal market, guaranteeing fair competition, ensuring consumer confidence and protecting consumer interests.It establishes common objectives and principles to underpin the rules set out under this Regulation concerning:(a)all stages of production, preparation and distribution of organic products and their control;(b)the use of indications referring to organic production in labelling and advertising.3. This Regulation shall apply to any operator involved in activities, at any stage of production, preparation and distribution, relating to the products set out in paragraph 2.4. This Regulation shall apply without prejudice to other [provisions of EU law] or national provisions, in conformity with [EU] law concerning products specified in this Article, such as provisions governing the production, preparation, marketing, labelling and control, including legislation on foodstuffs and animal nutrition.’5Article 2 of that regulation, headed ‘Definitions’, provides:‘For the purposes of this Regulation, the following definitions shall apply:“organic production” means the use of the production method compliant with the rules established in this Regulation, at all stages of production, preparation and distribution;“stages of production, preparation and distribution” means any stage from and including the primary production of an organic product up to and including its storage, processing, transport, sale or supply to the final consumer, and where relevant labelling, advertising, import, export and subcontracting activities;(i)“preparation” means the operations of preserving and/or processing of organic products, including slaughter and cutting for livestock products, and also packaging, labelling and/or alterations made to the labelling concerning the organic production method;…’6Article 3 of that regulation sets out the objectives of organic production in the following terms:‘Organic production shall pursue the following general objectives:establish a sustainable management system for agriculture that:(iv)respects high animal welfare standards and in particular meets animals’ species-specific behavioural needs;(c)aim at producing a wide variety of foods and other agricultural products that respond to consumers’ demand for goods produced by the use of processes that do not harm the environment, human health, plant health or animal health and welfare.’7Article 5 of Regulation No 834/2007, headed ‘Specific principles applicable to farming’, states, in point (h) thereof, that organic farming is to be based on the specific principle of ‘the observance of a high level of animal welfare respecting species-specific needs’.8Article 14 of that regulation, the subject of which is ‘livestock production rules’, provides, in paragraph 1:‘In addition to the general farm production rules laid down in Article 11, the following rules shall apply to livestock production:with regard to husbandry practices and housing conditions:(viii)any suffering, including mutilation, shall be kept to a minimum during the entire life of the animal, including at the time of slaughter;9Article 25 of that regulation, concerning ‘organic production logos’, states:‘1. The [organic production logo of the EU] may be used in the labelling, presentation and advertising of products which satisfy the requirements set out under this Regulation.The [organic production logo of the EU] shall not be used in the case of in-conversion products and food as referred to in Article 23(4)(b) and (c).2. National and private logos may be used in the labelling, presentation and advertising of products which satisfy the requirements set out under this Regulation.3. The Commission shall, in accordance with the procedure referred to in Article 37(2), lay down specific criteria as regards presentation, composition, size and design of the [organic production logo of the EU].’ Regulation No 889/2008 10Recital 10 of Regulation No 889/2008 states that one of the priorities of organic farming is to ‘serve a high level of animal welfare’.11Article 57 of that regulation, headed ‘Organic production logo of the European Union ’, provides that:‘In accordance with Article 25(3) of Regulation [No 834/2007], the organic production logo of the European Union (hereinafter “Organic logo of the EU”) shall follow the model set out in Part A of Annex XI to this Regulation.’The Organic logo of the EU shall only be used if the product concerned is produced in accordance with the requirements of Regulation [No 2092/91] and its implementing regulations or Regulation [No 834/2007] and the requirements of this Regulation.’ Regulation No 1099/2009 12Recitals 2, 4, 18, 20, 24 and 43 of Regulation No 1099/2009 state:‘(2)Killing animals may induce pain, distress, fear or other forms of suffering to the animals even under the best available technical conditions. Certain operations related to the killing may be stressful and any stunning technique presents certain drawbacks. Business operators or any person involved in the killing of animals should take the necessary measures to avoid pain and minimise the distress and suffering of animals during the slaughtering or killing process, taking into account the best practices in the field and the methods permitted under this Regulation. Therefore, pain, distress or suffering should be considered as avoidable when business operators or any person involved in the killing of animals breach one of the requirements of this Regulation or use permitted practices without reflecting the state of the art, thereby inducing by negligence or intention, pain, distress or suffering to the animals.(4)Animal welfare is an EU value that is enshrined in the Protocol (No 33) on protection and welfare of animals annexed to the [EC Treaty] … The protection of animals at the time of slaughter or killing is a matter of public concern that affects consumer attitudes towards agricultural products. In addition, improving the protection of animals at the time of slaughter contributes to higher meat quality and indirectly has a positive impact on occupational safety in slaughterhouses.(18)Derogation from stunning in case of religious slaughter taking place in slaughterhouses was granted by [Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing (OJ 1993 L 340, p. 21)]. Since [EU] provisions applicable to religious slaughter have been transposed differently depending on national contexts and considering that national rules take into account dimensions that go beyond the purpose of this Regulation, it is important that derogation from stunning animals prior to slaughter should be maintained, leaving, however, a certain level of subsidiarity to each Member State. As a consequence, this Regulation respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union.(20)Many killing methods are painful for animals. Stunning is therefore necessary to induce a lack of consciousness and sensibility before, or at the same time as, the animals are killed. Measuring the lack of consciousness and sensibility of an animal is complex and needs to be performed under scientifically approved methodology. Monitoring through indicators, however, should be carried out to evaluate the efficiency of the procedure under practical conditions.(24)Depending on how they are used during the slaughtering or killing process, some stunning methods can lead to death while avoiding pain and minimising distress or suffering for the animals. Other stunning methods may not lead to death and the animals may recover their consciousness or sensibility during subsequent painful procedures. Such methods should, therefore, be completed by other techniques that lead to certain death before the recovery of the animals. It is, therefore, essential to specify which stunning methods need to be completed by a killing method.(43)Slaughter without stunning requires an accurate cut of the throat with a sharp knife to minimise suffering. In addition, animals that are not mechanically restrained after the cut are likely to endure a slower bleeding process and, thereby, prolonged unnecessary suffering. Animals of bovine, ovine and caprine species are the most common species slaughtered under this procedure. Therefore, ruminants slaughtered without stunning should be individually and mechanically restrained.’13Article 2 of Regulation No 1099/2009, headed ‘Definitions’, states:(f)“stunning” means any intentionally induced process which causes loss of consciousness and sensibility without pain, including any process resulting in instantaneous death;(g)“religious rite” means a series of acts related to the slaughter of animals and prescribed by a religion;14Article 3 of that regulation, headed ‘General requirements for killing and related operations’, provides in paragraph 1:‘Animals shall be spared any avoidable pain, distress or suffering during their killing and related operations.’15Article 4 of that regulation, which concerns ‘stunning methods’, states:‘1. Animals shall only be killed after stunning in accordance with the methods and specific requirements related to the application of those methods set out in Annex I. The loss of consciousness and sensibility shall be maintained until the death of the animal.The methods referred to in Annex I which do not result in instantaneous death (hereinafter referred to as simple stunning) shall be followed as quickly as possible by a procedure ensuring death such as bleeding, pithing, electrocution or prolonged exposure to anoxia.4. In the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of paragraph 1 shall not apply provided that the slaughter takes place in a slaughterhouse.’ French law 16Article L. 641-13 of the code rural et de la pêche maritime (Rural and Maritime Fishing Code), in the version applicable to the dispute in the main proceedings, provides:‘The “organic farming” indication can be used in respect of processed and unprocessed agricultural products satisfying the requirements under [EU] law for organic production and the labelling of organic products or, where appropriate, the conditions established in technical specifications approved by order of the ministry or ministries concerned at the request of [INAO].’ The dispute in the main proceedings and the question referred for a preliminary ruling 17On 24 September 2012, OABA sent to the Minister for Agriculture an application requesting that he take measures to end the advertising and marketing of minced beef patties under the ‘Tendre France’ brand, certified ‘halal’ and bearing the ‘organic farming’ indication, the latter being the subject of Article L. 641-13 of the Rural and Maritime Fishing Code and issued by Ecocert, a private-law certification body operating on behalf of and under the authority of INAO. On the same date, OABA requested that INAO prohibit the use of the ‘organic farming’ indication for beef and veal derived from animals slaughtered without first being stunned.18Those applications having been implicitly dismissed, OABA brought an action by application of 23 January 2013 before the Conseil d’État (Council of State, France) alleging misuse of powers.19By judgment of 20 October 2014, the Conseil d’État (Council of State) held, inter alia, first, with regard to OABA’s application for annulment of the implicit refusal by the Minister of Agriculture and INAO to prohibit the use of the ‘organic farming’ indication for products containing beef and veal derived from animals slaughtered without first being stunned, that EU law defined exhaustively the rules relating to the organic farming of cattle without reference to the adoption of implementing legislation by Member States and without such legislation being necessary in order for that law to be fully effective. Therefore, the French legislature is not competent to enact national provisions reiterating, clarifying or supplementing EU law. Consequently, the Conseil d’État (Council of State) rejected the form of order sought by OABA.20Second, the Conseil d’État (Council of State) found that OABA’s application for annulment of Ecocert’s implicit refusal to take measures to end the advertising and marketing of products under the ‘Tendre France’ brand, certified ‘halal’ and bearing the ‘organic farming’ indication, in accordance with Regulation No 834/2007, could not be referred to it as a court of first instance from which no appeal lies. Consequently, it remitted that aspect of the case to the tribunal administratif de Montreuil (Administrative Court, Montreuil, France).21By judgment of 21 January 2016, the tribunal administratif de Montreuil (Administrative Court, Montreuil) dismissed that application.22OABA brought an appeal against that judgment before the referring court, the cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles, France). In support of that appeal, it claims that the ‘organic farming’ indication must not be placed on products derived from animals that have been slaughtered without first being stunned, as that slaughtering method does not comply with the ‘high animal welfare standards’ established in Articles 3 and 5 of Regulation No 834/2007.23In addition, it submits that, although Article 4(4) of Regulation No 1099/2009 establishes a derogation from the principle of stunning prior to slaughter in the context of the ritual killing of livestock, that derogation is included only in pursuance of the objectives of health and equal respect for religious beliefs and traditions.24The certification issued by Ecocert to meat certified as ‘halal’ derived from animals slaughtered without first being stunned also constituted a breach of the principle of consumer confidence in organic products.25The Minister for Agriculture, Bionoor, Ecocert and INAO all claim that OABA’s application should be dismissed.26First, the Minister for Agriculture submits that neither Regulation No 834/2007 nor Regulation No 889/2008 explicitly preclude a derogation, in accordance with Article 4(4) of Regulation No 1099/2009, from the rule requiring animals first to be stunned in the particular context of ritual killing.27Second, Bionoor argues that there is no incompatibility, either at an EU law or national law level, between the certification ‘halal’ and the ‘organic farming’ indication, since a requirement that animals be slaughtered after first being stunned is tantamount to an additional condition which is not expressly provided for under positive law.28In addition, while EU law does establish the principle that animals are to be stunned before being slaughtered, it is possible to derogate therefrom in pursuance of the freedom to practise one’s religion.29Third, both Ecocert and INAO argue that it cannot be inferred from the objectives of Regulation No 834/2007, including the objective of ensuring ‘high animal welfare standards’, that the principle of organic production is incompatible with ritual killing intended to guarantee the freedom to practise one’s religion.30Further, the principle of consumer confidence was not infringed, since those using the ‘organic farming’ indication were fully entitled to do so.31The referring court notes that no provision in Regulations Nos 834/2007, 889/2008 or 1099/2009 expressly defines the method or methods for the slaughtering of animals that would fulfil the objectives of animal welfare and reduction of animal suffering associated with organic production.32Accordingly, the matter of how to answer the claim that the ‘organic farming’ indication is not to be used for meat derived from animals that have been ritually slaughtered without pre-stunning, which is decisive for the outcome of the dispute in the main proceedings, raises a serious difficulty in the interpretation of EU law.33In those circumstances, the cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must the applicable rules of [EU] law, deriving from, inter alia:Article 13 [TFEU],Regulation [No 834/2007], the detailed rules for the implementation of which are laid down by [Regulation No 889/2008], and[Regulation No 1099/2009]be interpreted as permitting or prohibiting approval of the use of the European “organic farming” label in relation to products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Regulation [No 1099/2009]?’ Consideration of the question referred 34As a preliminary point, it should be noted that, when the referring court and the parties to the main proceedings make reference to the European ‘organic farming’ label and the ‘organic farming’ indication respectively, they in fact intend to refer to the Organic logo of the EU for the purposes of Article 25 of Regulation No 834/2007 and Article 57 of Regulation No 889/2008.35Accordingly, it is appropriate to consider that, by its question, the referring court asks, in essence, whether Regulation No 834/2007, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as authorising the placing of the Organic logo of the EU on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Regulation No 1099/2009, in particular Article 4(4) thereof.36In that regard, it should be noted that recital 1 of Regulation No 834/2007 states that organic production, which is an overall system of farm management and food production, involves ‘the application of high animal welfare standards’, while recital 10 of Regulation No 889/2008 acknowledges that animal welfare is ‘a priority in organic livestock farming’. Article 3(a)(iv) and (c) of Regulation No 834/2007 also provides that organic production seeks, inter alia, to ‘establish a sustainable management system for agriculture that … respects high animal welfare standards’ and to ‘[produce] a wide variety of foods and other agricultural products that respond to consumers’ demand for goods produced by the use of processes that do not harm … animal … welfare’. Article 5(h) of that regulation again states that organic farming involves ‘the observance of a high level of animal welfare respecting species-specific needs’.37The obligation to keep animal suffering to a minimum, as established in Article 14(1)(b)(viii) of Regulation No 834/2007, helps to give concrete expression to the objective of ensuring the observance of a high level of animal welfare.38By declaring on several occasions its desire to observe a high level of animal welfare in organic farming, the EU legislature intended to highlight that this method of agricultural production is characterised by the observance of enhanced standards with regard to animal welfare in all locations and at all stages of production where it is possible further to improve that welfare.39In accordance, in particular, with Article 1(3) of Regulation No 834/2007, that regulation is to apply to any operator involved in activities, at any stage of production, preparation and distribution, relating to the agricultural products set out in paragraph 2 of that provision. Article 2(i) of that regulation states that ‘preparation’ includes, inter alia, the slaughter of animals.40In that regard, that regulation merely states in Article 14(1)(b)(viii) that ‘any suffering, including mutilation, shall be kept to a minimum during the entire life of the animal, including at the time of slaughter’.41It is true that no provision of Regulation No 834/2007 or Regulation No 889/2008 expressly defines the method or methods for the slaughtering of animals that are most appropriate to minimise animal suffering and, consequently, to give concrete expression to the objective of ensuring a high level of animal welfare.42However, Regulation No 834/2007 cannot be read without reference to Regulation No 1099/2009.43First, Regulation No 1099/2009 governs animal slaughter specifically.44Second, the protection of animal welfare is the main objective pursued by Regulation No 1099/2009, as is clear from the title of the regulation and from recital 2 thereof, and such protection is as required by Article 13 TFEU, pursuant to which, in formulating and implementing the European Union’s policies, the European Union and the Member States are to pay full regard to the welfare requirements of animals (see, to that effect, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraphs 63 and 64).45In that regard, Regulation No 1099/2009 contributes to ‘improving the protection of animals at the time of slaughter’ and encourages ‘stunning methods [that] can lead to death while avoiding pain and minimising distress or suffering for the animals’, as is set out in recitals 4 and 24 respectively.46In addition, under Article 3 of Regulation No 1099/2009, ‘animals shall be spared any avoidable pain, distress or suffering during their killing’. That general requirement applicable to the killing of animals is given particular concrete expression in Article 4(1) of that regulation, which provides, first, that ‘animals shall only be killed after stunning’ and, second, that ‘the loss of consciousness and sensibility shall be maintained until the death of the animal’.47Thus, Article 4(1) of Regulation No 1099/2009, read in conjunction with recital 20 of that regulation, lays down the principle that an animal should be stunned prior to its death and goes so far as to establish this as an obligation. As the Advocate General stated, in essence, in point 43 of his Opinion, scientific studies have shown that pre-stunning is the technique that compromises animal welfare the least at the time of killing.48While it is true that Article 4(4) of Regulation No 1099/2009, read in the light of recital 18 thereof, permits the practice of ritual slaughter as part of which an animal may be killed without first being stunned, that form of slaughter, which is authorised only by way of derogation in the European Union and solely in order to ensure observance of the freedom of religion (see, to that effect, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraphs 55 to 57), is insufficient to remove all of the animal’s pain, distress and suffering as effectively as slaughter with pre-stunning, which, in accordance with Article 2(f) of that regulation, read in the light of recital 20 thereof, is necessary to cause the animal to lose consciousness and sensibility in order significantly to reduce its suffering.49In that regard, it should be noted that, while recital 43 of Regulation No 1099/2009 states that slaughter without pre-stunning requires an accurate cut of the throat with a sharp knife to ‘minimise’ the animal’s suffering, the use of that technique does not allow the animal’s suffering to be kept to ‘a minimum’ within the meaning of Article 14(1)(b)(viii) of Regulation No 834/2007.50Therefore, contrary to what is claimed by both the French Government and the defendants in the main proceedings in their written observations, the particular methods of slaughter prescribed by religious rites that are carried out without pre-stunning and that are permitted by Article 4(4) of Regulation No 1099/2009 are not tantamount, in terms of ensuring a high level of animal welfare at the time of killing, to slaughter with pre-stunning which is, in principle, required by Article 4(1) of that regulation.51It should also be noted that recital 3 of Regulation No 834/2007 lays down the objective of ‘maintaining and justifying consumer confidence in products labelled as organic’. In that regard, it is important to ensure that consumers are reassured that products bearing the Organic logo of the EU have actually been obtained in observance of the highest standards, in particular in the area of animal welfare.52Having regard to the findings above, the answer to the question referred is that Regulation No 834/2007, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as not authorising the placing of the Organic logo of the EU on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Regulation No 1099/2009, in particular Article 4(4) thereof. Costs 53Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as not authorising the placing of the organic production logo of the European Union, referred to in the first paragraph of Article 57 of Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Regulation No 834/2007, as amended by Regulation (EU) No 271/2010 of 24 March 2010, on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, in particular Article 4(4) thereof. [Signatures]( *1 ) Language of the case: French. | 79607-08597bc-4fd7 | EN |
The General Court annuls the Commission’s decision concerning tax exemptions granted by Belgium by means of rulings | 20 September 2023 ( *1 )(State aid – Aid scheme put into effect by Belgium – Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering recovery of the aid granted – Tax ruling – Taxable profit – Excess profit exemption – Advantage – Selectivity – Adverse effect on competition – Recovery)In Case T‑131/16 RENV, Kingdom of Belgium, represented by C. Pochet and M. Jacobs, acting as Agents, and by M. Segura and M. Clayton, lawyers,applicant,supported by Ireland, represented by M. Browne, A. Joyce, D. O’Reilly and J. Quaney, acting as Agents, and by P. Gallagher, M. Collins and C. Donnelly, Senior Counsel, and B. Doherty and D. Fennelly, Barristers-at-Law,intervener,v European Commission, represented by B. Stromsky, P.-J. Loewenthal and F. Tomat, acting as Agents,defendant,THE GENERAL COURT (Second Chamber, Extended Composition),composed of A. Marcoulli, President, S. Frimodt Nielsen, V. Tomljenović (Rapporteur), R. Norkus and W. Valasidis, Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written part of the procedure,having regard to the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741),further to the hearing on 8 February 2023,gives the following Judgment 1By its action under Article 263 TFEU, the Kingdom of Belgium seeks the annulment of Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61; ‘the contested decision’). I. Background to the dispute 2The facts of the dispute and the legal background were set out by the General Court in paragraphs 1 to 28 of the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), and by the Court of Justice in paragraphs 1 to 24 of the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741). For the purposes of the present proceedings, they may be summarised as follows.3By an advance ruling issued by the ‘service des décisions anticipées’ (Advance Ruling Commission) of the service public fédéral des finances belge (Belgian Federal Public Service for Finance) under Article 185(2)(b) of the Code des impôts sur les revenus 1992 (Income Tax Code 1992; ‘the CIR 92’), read in conjunction with Article 20 of the loi du 24 décembre 2002 modifiant le régime des sociétés en matière d’impôts sur les revenus et instituant un système de décision anticipée en matière fiscale (Law of 24 December 2002 amending the corporate income tax system and establishing an advance tax ruling system) (Moniteur belge, 31 December 2002, p. 58817; ‘the Law of 24 December 2002’), Belgian resident companies that were part of a multinational group and Belgian permanent establishments of foreign resident companies that were part of a multinational group could reduce their tax base in Belgium by deducting what was considered to be ‘excess’ profit from the profit which they had recorded. Under that system, part of the profit made by the Belgian entities benefiting from an advance ruling was not taxed in Belgium. According to the Belgian tax authorities, that excess profit arose from the synergies, economies of scale or other benefits resulting from membership of a multinational group and, accordingly, was not attributable to the Belgian entities in question.4Following an administrative procedure that was initiated on 19 December 2013 with a letter by which the European Commission requested the Kingdom of Belgium to provide information on the system of excess profit tax rulings, which were based on Article 185(2)(b) of the CIR 92, the Commission adopted the contested decision on 11 January 2016.5By the contested decision, the Commission found that the excess profit exemption scheme that was based on Article 185(2)(b) of the CIR 92, pursuant to which the Kingdom of Belgium had issued advance rulings to Belgian entities of multinational groups of undertakings, granting those entities an exemption in respect of part of their profit, constituted a State aid scheme giving its beneficiaries a selective advantage, for the purposes of Article 107(1) TFEU, that was incompatible with the internal market.6Thus, the Commission argued, principally, that the scheme at issue granted beneficiaries of the advance rulings a selective advantage, since the excess profit exemption applied by the Belgian tax authorities was a departure from the ordinary Belgian corporate income tax system. In the alternative, the Commission found that the excess profit exemption could confer a selective advantage on beneficiaries of the advance rulings, in so far as that exemption was not in line with the arm’s length principle.7Having found that the scheme at issue had been put into effect in breach of Article 108(3) TFEU, the Commission ordered that the aid thus granted be recovered from its beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision. A. The original judgment 8Following the adoption of the contested decision, the Kingdom of Belgium and several companies identified by that decision or which had benefited from an advance ruling under the scheme at issue brought actions for the annulment of that decision.9By the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91; ‘the original judgment’), in the first place, the General Court rejected as unfounded the pleas in law alleging, in essence, that the Commission had misused its powers in relation to State aid and encroached upon the Kingdom of Belgium’s exclusive jurisdiction in the field of direct taxation.10In the second place, the General Court held that, in this case, the Commission had incorrectly found that there was an aid scheme, in breach of Article 1(d) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), and, consequently, the General Court annulled the contested decision without considering it necessary to examine the other pleas that had been put forward against it. B. The judgment on appeal 11Following the appeal brought against the original judgment, the Court of Justice delivered its judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741; ‘the judgment on appeal’).12In the judgment on appeal, the Court of Justice held that the original judgment was vitiated by errors of law in so far as it had been held that the Commission had wrongly concluded that there was an aid scheme in this case.13On the basis of the errors identified by the Court of Justice, the original judgment was set aside.14In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice decided to give final judgment on certain pleas in law where it considered that the state of the proceedings was such as to permit it to do so, namely those concerning the Commission’s encroachment upon the exclusive jurisdiction of the Kingdom of Belgium in the field of direct taxation, and those relating to the existence of an aid scheme.15Thus, first of all and like the General Court, the Court of Justice rejected the pleas relating to the Commission’s encroachment upon the exclusive jurisdiction of the Kingdom of Belgium in the field of direct taxation.16Next, the Court of Justice concluded that the excess profit exemption scheme could be considered an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589, and that, therefore, the pleas in law relating to the existence of an aid scheme had to be rejected as being unfounded.17Lastly, with regard to the other pleas for annulment relied on by the Kingdom of Belgium, the Court of Justice considered that the state of the proceedings was not such as to permit final judgment to be given, and referred the case back to the General Court in order for it to rule on those pleas. II. Procedure and forms of order sought 18Following the judgment on appeal and in accordance with Article 216(1) of the Rules of Procedure of the General Court, the present case was assigned to the Second Chamber (Extended Composition) of the General Court on 20 October 2021.19In accordance with Article 217(1) of the Rules of Procedure, the parties lodged statements of written observations within the time limits prescribed. Supplementary statements of written observations were also lodged by the main parties in accordance with Article 217(3) of the Rules of Procedure.20The Kingdom of Belgium claims that the General Court should:–annul the contested decision;in the alternative, annul Articles 1 and 2 of the contested decision;order the Commission to pay the costs.21Ireland claims that the General Court should annul the contested decision, as requested by the Kingdom of Belgium.22The Commission contends that the General Court should:dismiss the action;order the Kingdom of Belgium to pay the costs. III. Law 23In support of its action, the Kingdom of Belgium raises five pleas in law. Following the judgment on appeal, in which the Court of Justice ruled on the first two pleas in law, the first of which related to the Commission’s encroachment upon the exclusive jurisdiction of the Kingdom of Belgium, and the second, to the existence of an aid scheme, the General Court must give a new ruling on the third to fifth pleas, the third relating to the incorrect classification of the excess profit exemption as State aid within the meaning of Article 107(1) TFEU, the fourth, to the incorrect identification of the beneficiaries of the alleged aid, and the fifth, to breach of the principles of legality and of the protection of legitimate expectations, in that recovery of the alleged aid was ordered erroneously. A. Plea in law alleging infringement of Article 107 TFEU and a manifest error of assessment, in that the Commission considered that the excess profit system constituted a State aid measure 24The Kingdom of Belgium submits, in essence, that the fact that the excess profit exemption, as a consistent administrative practice, constitutes a scheme does not mean that it can be concluded that it fulfils all the criteria laid down in Article 107(1) TFEU for a measure to qualify as State aid. Thus, in support of that plea, the Kingdom of Belgium puts forward arguments, in several parts and sub-parts, by which it challenges the Commission’s findings in relation to those criteria set out in Article 107(1) TFEU, that is to say, the financing of the scheme at issue through State resources, the existence of a selective advantage and a distortion of competition.25The Commission contends that the plea put forward by the Kingdom of Belgium should be rejected. 1. The financing of the scheme at issue through State resources 26The Kingdom of Belgium, supported in that regard by Ireland, submits, in essence, that a State can only renounce tax revenue if it is entitled to collect the corresponding contributions. In the present case, the excess profit corresponds to the profit generated by the corporate groups concerned and cannot, therefore, be attributed to the Belgian entities. For that reason, that profit does not fall within the tax jurisdiction of the Kingdom of Belgium, which would not be entitled to tax it.27It should be recalled that it is settled case-law that the definition of ‘aid’ is more general than that of a subsidy, given that it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the term, are similar in character and have the same effect as them. Accordingly, a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU (see judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 71 and 72 and the case-law cited).28First, in recital 114 of the contested decision, the Commission claimed that the scheme at issue involved the exemption of excess profit, which constituted a reduction of tax for the undertakings benefiting from that scheme and, therefore, a loss of tax revenue that would otherwise have been available to the Kingdom of Belgium. Therefore, contrary to the Kingdom of Belgium’s contention, the Commission did in fact identify the State resources involved in the alleged aid scheme, namely the tax revenue which would have been available to the Kingdom of Belgium, according to the Commission, in the absence of that scheme.29Secondly, under Article 185(1) of the CIR 92, the total amount of the recorded profit of resident companies is taxable in Belgium. Accordingly, that profit must be regarded as falling within the tax jurisdiction of the Kingdom of Belgium even if it may be adjusted, specifically under the Belgian tax rules applicable, such as Article 185(2)(b) of the CIR 92.30Thirdly, in so far as the present case concerns tax charge reductions that were granted by the Advance Ruling Commission, admittedly in accordance with an administrative practice, but only in response to a request made by the beneficiary, it cannot be maintained that the exempted profit was, fundamentally, profit that was not taxable in Belgium. In fact, in the absence of a request in that regard, that profit would have been taxed in Belgium. Accordingly, the Kingdom of Belgium cannot maintain that that profit does not fall within its tax jurisdiction.31Fourthly, contrary to Ireland’s contention, it must be noted that the reason why the Commission found that State resources were involved in the present case is precisely that, under the ordinary system of taxation of corporate profits in Belgium, which includes Article 185(1) of the CIR 92, the total amount of profit recorded by resident companies is, fundamentally, taxable in Belgium. Thus, it is by taking into account the choice made by the Belgian legislature, in the exercise of the tax jurisdiction of the Kingdom of Belgium, that the Commission was able to conclude that, to the extent that the excess profit was not taxed, when it was fundamentally taxable profit, such non-taxation resulted in a loss of resources that belonged to that State.32In the light of the above, the Court must reject the arguments of the Kingdom of Belgium, supported by Ireland, challenging the Commission’s conclusion as to the financing of the scheme at issue through State resources. 2. The existence of a selective advantage granted by the scheme at issue 33The Kingdom of Belgium disputes the Commission’s findings concerning the existence of an advantage granted by the scheme at issue and its selectivity. More specifically, as regards selectivity, in reliance on the case-law concerning assessment for the purposes of classifying a tax measure as ‘selective’, the Kingdom of Belgium challenges the Commission’s identification of the reference system, that is to say, the ordinary or ‘normal’ tax system applicable, its finding that the scheme at issue constitutes a derogation from that reference system, and its rejection of the Kingdom of Belgium’s justification for the scheme, based on the nature and general scheme of the Belgian tax system.34In this case, it is appropriate to begin by examining the Kingdom of Belgium’s arguments challenging the identification of the reference system against which the existence or non-existence of an advantage must be assessed, as well as the possible selectivity of such an advantage. The Court will then go on to consider the Kingdom of Belgium’s arguments challenging the Commission’s findings in relation to both the existence of an advantage and the selective nature of that advantage because of the existence of a derogation from the reference system and, also, in relation to the lack of justification based on the nature and general scheme of the Belgian tax system. (a) Identification of the reference system 35The Kingdom of Belgium submits, in essence, that the Commission erred in identifying the reference system, because it failed to take into account the fact that that system also included the excess profit scheme. The Kingdom of Belgium further maintains that the Commission erred in law by invoking Article 24 of the CIR 92, relating to the taxable income of natural persons, which is not, as regards the determination of taxable profit, entirely applicable to companies that belong to an international group.36Ireland submits that the Commission did not take into account the rules applicable in Belgium, although the reference system cannot extend beyond the national tax system and each State has absolute discretion to define the tax base within its system. Accordingly, it is not relevant how the profits from a transaction would be treated in other tax systems.37It must be recalled that the determination of the reference system is of particular importance in the case of tax measures, since the existence of an economic advantage for the purposes of Article 107(1) TFEU may be established only when compared with ‘normal’ taxation. Thus, determination of the set of undertakings which are in a comparable factual and legal situation depends on the prior definition of the legal regime in the light of whose objective it is necessary, where applicable, to examine whether the factual and legal situation of the undertakings favoured by the measure in question is comparable with that of those which are not (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 69 and the case-law cited).38In that context, it has been held that the determination of the reference system, which must be carried out following an exchange of arguments with the Member State concerned, must follow from an objective examination of the content, the structure and the specific effects of the applicable rules under the national law of that State (see judgment of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 62 and the case-law cited).39In addition, it is apparent from settled case-law that, while the Member States must thus refrain from adopting any tax measure liable to constitute State aid that is incompatible with the internal market, the fact remains that outside the spheres in which EU tax law has been harmonised, it is the Member State concerned which determines, by exercising its own competence in the matter of direct taxation and with due regard for its fiscal autonomy, the characteristics constituting the tax, which define, in principle, the reference system or the ‘normal’ tax regime, from which it is necessary to analyse the condition relating to selectivity. This includes, in particular, the determination of the basis of assessment and the taxable event (see judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraphs 65 and 73 and the case-law cited).40It follows that only the national law applicable in the Member State concerned must be taken into account in order to identify the reference system for direct taxation, that identification being itself an essential prerequisite for assessing not only the existence of an advantage, but also whether it is selective in nature.41Furthermore, in order to determine whether a tax measure has conferred a selective advantage on an undertaking, it is for the Commission to carry out a comparison with the tax system normally applicable in the Member State concerned, following an objective examination of the content, the structure and the specific effects of the applicable rules under the national law of that State. Parameters and rules external to the national tax system at issue cannot therefore be taken into account in the examination of the existence of a selective tax advantage within the meaning of Article 107(1) TFEU and for the purposes of establishing the tax burden that should normally be borne by an undertaking, unless that national tax system makes explicit reference to them (see, to that effect, judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraphs 92 and 96).42In the present case, the Commission set out in recitals 121 to 129 of the contested decision its position concerning the reference system.43Thus, in recitals 121 and 122 of the contested decision, the Commission stated that the reference system was the ordinary system of taxation of corporate profits under the general Belgian corporate income tax system, which had as its objective the taxation of profit of all companies subject to tax in Belgium. The Commission noted that the Belgian corporate income tax system applied to companies resident in Belgium as well as to Belgian branches of non-resident companies. Under Article 185(1) of the CIR 92, companies resident in Belgium were liable to corporate income tax on the total amount of their profit, unless a double taxation treaty applied. Moreover, under Articles 227 and 229 of the CIR 92, non-resident companies were only taxable on specific Belgium-sourced income. The Commission also stated that, in both cases, Belgian corporate income tax was payable on the total profit, which was established according to the rules on calculating profit as defined in Article 24 of the CIR 92. Under Article 185(1) of the CIR 92, read in conjunction with Articles 1, 24, 183, 227 and 229 of the CIR 92, the total profit was calculated as corporate income, minus deductible expenses which were typically recorded in the accounts, so that the profit actually recorded formed the starting point for calculating the total taxable profit, without prejudice to the subsequent application of upward and downward adjustments provided for by the Belgian corporate income tax system.44In recitals 123 to 128 of the contested decision, the Commission explained that the excess profit exemption scheme applied by the Belgian tax authorities was not an inherent part of the reference system.45More specifically, in recital 125 of the contested decision, the Commission found that that exemption was not prescribed by any provision of the CIR 92. Article 185(2)(a) of the CIR 92 allowed the Belgian tax administration to make a unilateral primary adjustment of a company’s profits where transactions or arrangements with associated companies were concluded on terms that differed from arm’s length conditions. By contrast, Article 185(2)(b) of the CIR 92 provided for the possibility of making downward adjustments of a company’s profit from an intra-group transaction or arrangement, subject to the additional condition that the profit to be adjusted had to have been included in the profit of the foreign counterparty to that transaction or arrangement.46In addition, in recital 126 of the contested decision, the Commission recalled that the objective of the Belgian corporate income tax system was to tax corporate taxpayers on their actual profits, irrespective of their legal form or size and of whether or not they formed part of a multinational group of undertakings.47Furthermore, in recital 127 of the contested decision, the Commission noted that, for the purposes of determining taxable profit, integrated multinational group companies were required to set the prices they applied to their intra-group transactions instead of those prices being dictated by the market, which is why Belgian tax law contained certain special provisions applicable to groups, which were generally aimed at putting non-integrated companies and economic entities structured in the form of groups on an equal footing.48In recital 129 of the contested decision, the Commission concluded that the reference system to be taken into consideration was the Belgian corporate income tax system, which had as its objective the taxation of profits of all companies resident or operating through a permanent establishment in Belgium in the same manner. That system included the applicable adjustments under the Belgian corporate income tax system, which determined the company’s taxable profit for the purpose of levying Belgian corporate income tax.49It should be noted at the outset that the parties are agreed on the starting point: that the ordinary Belgian corporate income tax system constitutes the reference system.50However, the Kingdom of Belgium takes issue with the Commission’s view of the scope of that ordinary system, as regards the determination of taxable profit, the relevance of Article 24 of the CIR 92, the possibility of adjusting the profits recorded by taxable companies and the question as to whether or not that system includes the excess profit exemption scheme applied by the Belgian tax authorities. (1) Taking national law into account 51As a preliminary point, it must be noted that, for the purpose of establishing what the ordinary or ‘normal’ tax system applicable in Belgium is, the Commission relied on the legal provisions applicable, in particular the CIR 92, as is apparent from paragraphs 42 to 48 above. Indeed, on the basis of the information provided by the Kingdom of Belgium in the context of the administrative procedure, the Commission described the legislative framework applicable and set out, in particular in recitals 23 to 28 of the contested decision, the Belgian corporate income tax system, as laid down by the CIR 92. Specifically, as stated in paragraph 43 above, the Commission expressly referred to Articles 1, 24, 183 and 185 of the CIR 92.52It follows that, contrary to Ireland’s contention, for the purpose of identifying the reference system, the Commission relied on the tax rules applicable in Belgium. (2) The determination of taxable corporate profits and the relevance of Article 24 of the CIR 92 53With regard to the Kingdom of Belgium’s arguments challenging the findings of the Commission in relation to the determination of taxable corporate profits in Belgium and the relevance of Article 24 of the CIR 92, it must be recalled that, in recital 122 of the contested decision, the Commission indicated that the total profit was established according to the rules for profit determination laid down in the provisions on calculating taxable profit as defined in Article 24 of the CIR 92.54Article 24 of the CIR 92 provides that the taxable income of industrial, commercial and agricultural undertakings includes all income from entrepreneurial activities such as profit from ‘all the operations handled by those undertakings or through their intermediation’ as well as profit from ‘all increases in value of their assets … or decrease in value of their liabilities … when that profit has been realised and registered in the accounts’.55It follows that the taxable profit, for the purposes of the application of the CIR 92, consists, fundamentally, of all profits recorded by undertakings subject to taxation in Belgium, since those profits constitute the starting point for calculating that tax.56It is true that Article 24 of the CIR 92 forms part of Title II of that code, which concerns taxation of natural persons, and is within Chapter II thereof, which concerns the tax base; more specifically, it is included in Section IV, Subsection I, of that chapter, which relates to taxable income. However, according to Article 183 of the CIR 92, which concerns the corporate tax base, ‘the income subject to or exempted from corporate income tax is, by its nature, the same as that envisaged by the personal income tax of natural persons[,] the taxable amount [being] fixed according to the rules applicable to profit’. That provision makes no distinction as regards companies that are part of multinational groups of undertakings.57Accordingly, so far as taxation of corporate profit is concerned, including for the purposes of establishing the tax base, the CIR 92 refers back to the provisions covering the taxation of income of natural persons.58In those circumstances, the Kingdom of Belgium’s arguments challenging the Commission’s reliance on Article 24 of the CIR 92 for the purpose of determining taxable corporate profits in Belgium, in the context of its examination of the normal taxation of companies in Belgium, must be rejected. (3) The possibility of making adjustments to the profit recorded by taxable companies 59The Kingdom of Belgium claims that the Commission failed to take into account the fact that recorded profits merely formed the starting point for calculating taxable profit.60In that regard, it must be noted that it is apparent from the information provided by the Commission in recital 123 of the contested decision that it took into consideration the fact that the basis for calculating taxable profit was the total profit recorded by the entity in question, which was subject to the downward and upward adjustments provided for by the Belgian corporate income tax system.61More specifically, the Commission noted in recital 125 of the contested decision that the upward and downward adjustments laid down in Article 185(2)(a) and (b) of the CIR 92 were special tax provisions applicable to situations in which the conditions agreed for a transaction or an arrangement differed from those that would have been agreed between independent companies.62Therefore, contrary to what is claimed by the Kingdom of Belgium, the Commission did take into account the fact that, in the tax system applicable in Belgium, specifically as regards the taxable base for the taxation of corporate profit, it was possible to make upward and downward adjustments to the profits recorded. For the same reasons, the Kingdom of Belgium’s claims that the Commission disregarded the fact that there was a difference in the Belgian tax system between the accounting profit and the taxable profit cannot be upheld. (4) The non-inclusion of the excess profit scheme in the reference system 63The Kingdom of Belgium submits that the Commission incorrectly excluded the excess profit scheme from the reference system.64In the first place, it should be pointed out that the Commission did not exclude Article 185(2)(b) of the CIR 92 from the reference system. However, it did find that the excess profit scheme applied by the Belgian tax authorities was not laid down by that provision and, therefore, did not form part of the reference system. Thus, contrary to the Kingdom of Belgium’s contention, there is no contradiction between the conclusion regarding the existence of an aid scheme based on Article 185(2)(b) of the CIR 92 and the finding that the excess profit scheme does not form part of the reference system.65In the second place, in order to determine whether the Commission correctly concluded that the excess profit scheme was not provided for by Article 185(2)(b) of the CIR 92, it is necessary to examine, on the one hand, the scope of that provision and, on the other, the excess profit scheme as applied by the Belgian tax authorities. (i) The scope of Article 185(2) of the CIR 92 66It must be noted that the Commission based its analysis of Article 185(2) of the CIR 92 on the wording of that provision and the texts that accompanied its entry into force. In recitals 29 to 38 of the contested decision, the Commission described in detail, first, the text of Article 185(2) of the CIR 92, introduced by the loi du 21 juin 2004, modifiant le [CIR 92] et la loi du 24 décembre 2002 (Law of 21 June 2004 modifying the CIR 92 and the Law of 24 December 2002) (Moniteur belge, 9 July 2004, p. 54623; ‘the Law of 21 June 2004’); secondly, the explanatory memorandum to the draft of that law, presented to Belgium’s Chamber of Representatives by the Belgian Government on 30 April 2004 (‘the Memorandum to the Law of 21 June 2004’); and, thirdly, the circular of 4 July 2006 concerning Article 185(2) of the CIR 92 (‘the Circular of 4 July 2006’).67In its arguments in the context of the present action, the Kingdom of Belgium itself relied on those texts, which are part of the case file.68First of all, in the version applicable to the present case, Article 185(2) of the CIR 92, to which reference is made in recital 29 of the contested decision, is worded as follows:‘Without prejudice to the second paragraph, for two companies that are part of a multinational group of associated companies and in respect of their reciprocal cross-border relationships:…(b)when profit is included in the profit of one company which is already included in the profit of another company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the profit of the first company is adjusted in an appropriate manner.The first paragraph applies by way of advance ruling without prejudice to the application of the Convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (90/436) of 23 July 1990 or of a Convention for the avoidance of double taxation.’69Next, the Memorandum to the Law of 21 June 2004, referred to in recital 34 of the contested decision, states that Article 185(2)(b) of the CIR 92 provides for an appropriate correlative adjustment in order to avoid or undo a (potential) double taxation, and that a correlative adjustment should be made only if the tax administration or the Advance Ruling Commission considers both the principle and the amount of the primary adjustment to be justified.70Moreover, the Memorandum to the Law of 21 June 2004 makes clear that that provision does not apply if the profit made in the partner State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied, since the Belgian tax authorities are not obliged to accept the consequences of an arbitrary or unilateral adjustment in the partner State.71Lastly, the Circular of 4 July 2006, referred to in recital 38 of the contested decision, reiterates that such a downward adjustment does not apply in cases where the primary upward adjustment in another tax jurisdiction is exaggerated. That circular, moreover, largely reproduces the text of the Memorandum to the Law of 21 June 2004, in that it recalls that the corresponding downward adjustment is informed by the arm’s length principle, that its objective is to avoid or undo a (potential) double taxation and that it must be made in an appropriate manner, that is, that the Belgian tax authorities can make that adjustment only if both the principle and the amount of that adjustment are justified.72Accordingly, it is apparent from the wording of Article 185(2)(b) of the CIR 92 that the downward adjustment is envisaged in the context of cross-border relationships between two associated companies and that it must be a correlative adjustment, in the sense that it is applicable only if the profit that is to be adjusted is already included in the profit of the other company and the profit so included is profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies.73In that regard, it should be recalled that the Kingdom of Belgium itself asserted, in paragraph 95 of the application, that Article 185(2) of the CIR 92 was designed to determine the profits of a Belgian entity that are taxable in Belgium and those falling outside its jurisdiction, on the basis of an allocation of those profits between the Belgian entity and the associated companies involved in the intra-group cross-border relationships in question.74That finding is confirmed both by the Memorandum to the Law of 21 June 2004 and by the Circular of 4 July 2006, which make clear that both the principle and the amount of the correlative adjustment must be appropriate and that that adjustment should not be made if the profit made in another State is increased in such a way that it is greater than the profit that would have been obtained had the arm’s length principle been applied. Those texts indicate that the downward adjustment provided for by Article 185(2)(b) of the CIR 92 requires a correlation between the profit adjusted downwards in Belgium and profit included in another group company established in another State. (ii) The excess profit scheme 75The Commission describes the excess profit scheme, as applied by the Belgian tax authorities, in recitals 13 to 22 of the contested decision. In addition, in recitals 39 to 42 of the contested decision, the Commission took into account the replies given by the Belgian Minister for Finance on 13 April 2005, 11 April 2007 and 6 January 2015 to parliamentary questions on the application of Article 185(2)(b) of the CIR 92. Those replies explain the administrative practice of the Belgian tax authorities relating to excess profit.76It is apparent from those replies that, in the context of the excess profit scheme applied by the Belgian tax authorities, the downward adjustment of profit enabling that excess profit to be deducted from the tax base was not conditional upon the exempted profit having been included in the profit of another company and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. The Kingdom of Belgium confirmed that aspect of the scheme at issue at the hearing.77It is, moreover, apparent from the explanations given by the Kingdom of Belgium, as set out in particular in recitals 15 to 20 of the contested decision, that the exemption applied by the Belgian tax authorities under the scheme at issue was based on an exemption percentage, calculated on the basis of a hypothetical average profit for the Belgian entity, obtained using a profit level indicator derived from a comparison with the profit of comparable standalone companies and fixed as a point in the interquartile range of the chosen profit level indicator of a set of comparable standalone companies. That exemption percentage would have been applicable for a number of years, that is to say, during the period of validity of the advance ruling. Thus, the resulting starting point for the taxation of Belgian entities was not the full profit actually recorded, within the meaning of Articles 1, 24, 183 and Article 185(1) of the CIR 92, to which the adjustments provided for by law in the case of groups of undertakings would have been applied under Article 185(2) of the CIR 92; rather, it was a hypothetical profit that disregarded the total profit made by the Belgian entity in question and the adjustments provided for by law.78Furthermore, the fact that the objective of that provision is to avoid potential double taxation, as the Kingdom of Belgium emphasised, cannot eliminate the condition expressly laid down, relating to the fact that the profit to be adjusted must already have been included in the profit of another company and that that profit is profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. Indeed, it is precisely where the profit of a Belgian entity is already included in the profit of another company, established in another State, that the possibility of double taxation can arise. (iii) Conclusion on the non-inclusion of the excess profit scheme in the reference system 79It follows from the above that, while Article 185(2)(b) of the CIR 92 requires, for the purposes of a downward adjustment, that the profit to be adjusted should already have been included in the profit of another company and be profit which should have been made by that other company if the conditions agreed between the two companies had been those which would have been agreed between independent companies, the excess profit scheme was applied by the Belgian tax authorities without those conditions being taken into consideration.80Accordingly, contrary to the Kingdom of Belgium’s contention, the Commission was right to find that the excess profit exemption applied by the Belgian tax authorities under the scheme at issue did not form part of the reference system.81In those circumstances, the Court must reject all of the arguments of the Kingdom of Belgium challenging the Commission’s identification of the reference system in the contested decision. (b) The existence of an advantage as a result of the scheme at issue 82The Kingdom of Belgium complains, in essence, that the Commission did not separately assess whether the excess profit system entailed the grant of an economic advantage to the beneficiaries. The Kingdom of Belgium also submits that the Commission did not consider or determine what tax advantage was gained by Belgian entities belonging to an international group in comparison with other competing standalone companies. (1) Identification of the advantage granted by the scheme at issue 83As a preliminary point, as noted in paragraphs 45 to 47 above, it should be recalled that, in recital 125 of the contested decision, the Commission indicated that the excess profit exemption applied by the Belgian tax authorities was not provided for by the Belgian corporate income tax system. Furthermore, in recital 126 of the contested decision, the Commission highlighted the fact that that exemption was calculated in disregard of the total profit actually recorded by the Belgian entity and the adjustments provided for by law. In recital 127 of the contested decision, it stated that although the Belgian system contained certain special provisions applicable to groups, these were aimed at putting integrated multinational group entities and standalone entities on an equal footing.84In that context, in recital 133 of the contested decision, the Commission indicated that, under the Belgian corporate income tax system, corporate entities resident or operating through a permanent establishment in Belgium were taxed on their profit actually recorded, not on a hypothetical level of profit, which was why the excess profit exemption conferred an advantage on Belgian group entities benefiting from the scheme at issue.85In recital 135 of the contested decision, the Commission recalled the case-law according to which an economic advantage may be granted through a reduction in an undertaking’s tax burden and, in particular, through a reduction in the tax base or in the amount of tax due. Thus it found that, in the present case, the scheme at issue allowed corporate beneficiaries of advance rulings to reduce their tax liability by deducting a so-called ‘excess’ profit from their profit that was actually recorded. That excess profit was determined by estimating the hypothetical average profit of comparable standalone undertakings, so that the difference between the profit actually recorded and that hypothetical average profit was then translated into an exemption percentage underpinning the calculation of the tax base agreed for the five years of the advance ruling’s application. In so far as that tax base, thus determined on the basis of the advance rulings granted under the scheme at issue, was lower than it would have been had those advance rulings not been issued, an advantage would have arisen.86In those circumstances, it should be noted that the contested decision discloses the factors which the Commission took into account in considering the existence of an advantage. The recitals highlighted, notably in paragraphs 83 to 85 above, make it possible to understand that the advantage identified by the Commission consisted in the non-taxation of the excess profit of corporate beneficiaries, and in the taxation of their profit calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, in accordance with advance rulings under the scheme at issue. According to the Commission, such taxation represented a lowering of the tax burden of the beneficiaries of the scheme, in comparison with the burden that would have arisen from normal taxation, under the Belgian corporate income tax system, which would have covered all profits actually recorded, after applying the adjustments provided for by law. (2) The joint analysis by the Commission of the criteria of advantage and selectivity 87At the outset, it should be borne in mind that selectivity and advantage are two separate criteria. So far as advantage is concerned, the Commission must show that the measure improves the financial situation of the recipient (see, to that effect, judgment of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 15). However, so far as selectivity is concerned, the Commission must show that the advantage does not benefit other undertakings that are in a factual and legal situation comparable to that of the recipient in the light of the objective of the reference system (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49).88In that regard, according to the case-law, the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings (judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59).89It must however be stated that, according to the case-law of the Court of Justice, those two criteria may be examined together as a ‘third condition’ laid down in Article 107(1) TFEU, requiring there to be a ‘selective advantage’ (see, to that effect, judgment of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 32).90In the contested decision, the Commission’s reasoning with regard to the advantage is set out in its analysis of the existence of a selective advantage, that is, in Section 6.3, entitled ‘Existence of a selective advantage’. In that context, as has just been noted in paragraphs 83 to 85 above, the Commission did indeed consider the advantage criterion. Next, the actual analysis of the selectivity of that advantage is set out in recitals 136 to 141 of the contested decision, under Section 6.3.2.1, so far as concerns the reasoning as to selectivity put forward by the Commission as part of its principal case, based on the existence of a derogation from the general Belgian corporate income tax system. Moreover, selectivity is also analysed in recitals 152 to 170 of the contested decision, under Section 6.3.2.2, so far as concerns the Commission’s subsidiary line of reasoning as to selectivity, based on the existence of a derogation from the arm’s length principle.91Accordingly, the fact that, in terms of form, the analysis of advantage was included in a section that also covers the examination of selectivity does not reveal a failure to carry out a substantive examination of both concepts, in so far as the existence of an advantage, on the one hand, and the existence of its selective nature, on the other, are in fact assessed (see, to that effect, judgment of 24 September 2019, Netherlands and Others v Commission, T‑760/15 and T‑636/16, EU:T:2019:669, paragraph 129). (3) The existence of an advantage favouring the beneficiaries of the scheme at issue 92It should be noted that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 40 and the case-law cited, and judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 21).93In the case of tax measures, the very existence of an advantage may be established only when compared with ‘normal’ taxation (judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56). Therefore, such measures confer an economic advantage on their recipients if the measures mitigate the burdens normally included in the budget of an undertaking and, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect (judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 22).94Consequently, in order to determine whether there is a tax advantage, the position of the recipient as a result of the application of the measure at issue must be compared with the recipient’s position in the absence of that measure, and under the normal rules of taxation (see judgment of 24 September 2019, Netherlands and Others v Commission, T‑760/15 and T‑636/16, EU:T:2019:669, paragraph 147 and the case-law cited).95Furthermore, in the case of an aid scheme, the Commission need only demonstrate that the tax scheme at issue is such as to favour its beneficiaries, by ascertaining that the scheme, taken as a whole, is, given its particular characteristics, capable of resulting, at the time of its adoption, in the tax liability being lower than it would have been if the general tax regime had been applied (see judgment of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 63 and the case-law cited).96In the present case, as indicated in paragraphs 83 to 86 above, the Commission noted in recitals 125 to 127 and 133 to 135 of the contested decision that, following the advance rulings issued under the scheme at issue, the Belgian entities that were part of a multinational group and that had requested it had been able to reduce their corporate tax liability in Belgium, by deducting from their tax base a percentage of their profit, as ‘excess’ profit, for the five years of the advance rulings’ validity.97First of all, it is not disputed that the scheme at issue was designed as a system which consisted in the non-taxation of part of the profit recorded by Belgian entities that were part of a multinational group. Also undisputed is the fact that, under Article 2 of the Law of 21 June 2004, it is only through an advance ruling issued by the Advance Ruling Commission in response to a request made by the Belgian entities concerned that part of the profit of those entities could be classified as excess profit under Article 185(2)(b) of the CIR 92 and that the exemption percentage in question could be applied to the tax base of those entities, so that only part of that tax base was taxed.98Next, it should be recalled that it is apparent from Article 185(1) of the CIR 92 that resident companies in Belgium are to be taxed on the total amount of their profit. Furthermore, it is apparent from Article 24 of the CIR 92, as examined in paragraph 54 above, that the starting point for the taxable profit of undertakings is all the profit realised or registered in the accounts.99Lastly, as indicated in paragraphs 66 to 74 above, it is apparent from Article 185(2)(b) of the CIR 92 that the tax base can be adjusted downwards where the profit of the company in question is already included in the profit of another company of the same group and it is profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies.100Consequently, under the normal rules of taxation in Belgium, Belgian entities were taxed on all of their profit, as registered in their accounts, subject to any adjustments, such as that provided for in Article 185(2)(b) of the CIR 92. However, in so far as the scheme at issue consisted in an exemption of ‘excess’ profit for which, as noted in paragraph 80 above, no provision was made in Article 185(2)(b) of the CIR 92, that scheme was capable of resulting in a reduction of the tax which the entities that requested those rulings would otherwise have had to pay, pursuant to the rules on corporate income tax in Belgium.101In the circumstances, the Commission cannot be criticised for having found that the tax scheme at issue was such as to favour its beneficiaries, in so far as that scheme, taken as a whole and given its particular characteristics, was capable of resulting in the tax liability being lower than it would have been if the normal rules of corporate taxation in Belgium had been applied.102None of the other arguments of the Kingdom of Belgium and Ireland is such as to call that finding into question.103First, as regards the Kingdom of Belgium’s argument that the Commission did not determine what tax advantage the Belgian entities belonging to an international group benefited from in comparison with other competing standalone companies, it must be borne in mind, as is apparent from the case-law cited in paragraph 94 above, that the concept of ‘economic advantage’ means that the position of the recipient as a result of the application of the measure at issue must be compared with the recipient’s position in the absence of that measure and under the normal rules of taxation. Thus, in its analysis of the advantage, the Commission was not required to compare the position of the beneficiaries of the advance rulings with that of standalone undertakings. Furthermore, contrary to the Kingdom of Belgium’s contention, when considering whether there was an advantage that had been conferred by an aid scheme, the Commission was not required to carry out an analysis of the individual situation of each beneficiary or to calculate the gap between the tax burden of the Belgian entities which had obtained an advance ruling and the tax burden which they would have had to bear in the absence of such rulings (see, to that effect, judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63 and the case-law cited).104Secondly, as regards the argument challenging the Commission’s finding that the advantage flowed from the gap between the taxable profit, based on the arm’s length principle arising from Article 107 TFEU, accepted by the Commission, and the taxable profit determined in accordance with the arm’s length principle as laid down by Belgian legislation, it should be noted that it is only in the context of the analysis of the selectivity of the scheme at issue that the Commission considered, in the alternative, the extent to which that scheme derogated from the arm’s length principle. That argument is, therefore, entirely irrelevant in the context of the examination of the Commission’s assessment of the existence of an advantage.105Thirdly, Ireland submits that advance rulings simply apply the law to the facts of each request and, therefore, that they do not place the taxpayer in a better economic position than that taxpayer would otherwise have been in. In that regard, it should be noted that, admittedly, under Article 20 of the Law of 24 December 2002, the Belgian Federal Public Service for Finance determines by means of advance rulings any request relating to the application of the tax laws to a particular situation or transaction which has not yet had tax effects and, under Article 2 of the Law of 21 June 2004, Article 185(2)(b) of the CIR 92 may be applied only by an advance ruling. However, the excess profit scheme was not provided for by Article 185(2)(b) of the CIR 92; rather, the Advance Ruling Commission implemented the scheme at issue in practice, by departing from the conditions laid down by that provision. In that context, on the basis of requests for advance rulings, the Advance Ruling Commission validated the calculation of excess profit proposed in those requests and determined the exemption percentage that could be applied by the Belgian entities in question during the period of validity of the advance rulings. Consequently, the advance rulings covered by the scheme at issue cannot be considered simply to apply the law to the facts in respect of each request.106In those circumstances, the Court must reject the arguments of the Kingdom of Belgium concerning a manifest error of assessment as regards the finding that there is an advantage as a result of the scheme at issue. (c) The selective nature of the advantage as a result of a derogation from the reference system that differentiates between operators who are in a comparable situation 107The Kingdom of Belgium claims, in essence, that the Commission made an error of assessment by concluding that the excess profit system conferred a selective advantage on its beneficiaries in that it constituted a derogation from the reference system, which is understood as being the general Belgian corporate income tax system.108First, the Kingdom of Belgium submits that the excess profit scheme is based on Article 185(2)(b) of the CIR 92, a provision which is part of the Belgian corporate income tax system, and, therefore, that that scheme cannot be regarded as derogating from the reference system as accepted by the Commission.109Secondly, the Kingdom of Belgium submits that the excess profit exemption scheme does not lead to unequal treatment of companies in a comparable factual and legal situation, given the objective of the reference system.110In that regard, it must be noted that, according to the case-law, in examining the selectivity of a tax measure, after first identifying and examining the common or ‘normal’ tax regime applicable in the Member State concerned, that is to say, the reference system, it is necessary, secondly, to assess and determine whether any advantage granted by the tax measure at issue may be selective by demonstrating that the measure derogates from that common regime inasmuch as it differentiates between economic operators who, in the light of the objective assigned to the tax system of the Member State concerned, are in a comparable factual and legal situation (see judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 49 and the case-law cited).111In the contested decision (Section 6.3.2.1), the Commission found, principally, that the Belgian excess profit exemption scheme conferred a selective advantage on its beneficiaries by derogating from the general Belgian corporate income tax system, in so far as that system provided for companies to be taxed on their total profit, that is, their profit actually recorded, not on a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law.112Thus, the Commission concluded, in recital 136 of the contested decision, that Article 185(2)(b) of the CIR 92, on which the Kingdom of Belgium relied as the basis for the scheme at issue, did not have the meaning or effect suggested by that scheme and accordingly that that scheme constituted, rather, a derogation from the general rule under Belgian tax law according to which profit actually recorded is taxed. The Commission also pointed out that that scheme was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.113The Commission then went on, in recitals 137 to 141 of the contested decision, to develop its reasons for considering that the scheme at issue differentiated between operators who, in the light of the objective assigned to the Belgian tax system, were in a comparable legal and factual situation. (1) The existence of a derogation from the reference system 114It should be recalled at the outset that what the Commission regarded as not forming part of the reference system and thus derogating from it is the excess profit scheme, that is to say, the downward adjustment, as applied by the Belgian tax authorities to a certain part of the taxable profit, referred to as the ‘excess’.115However, as indicated in paragraphs 79 and 80 above, in the light of the wording of Article 185(2)(b) of the CIR 92, the downward adjustment of the taxable profit is conditional on the profit of a given company that is to be deducted having already been included in the profit of another company, and that profit being profit which should have been made by that other company if the conditions agreed between them had been those which would have been agreed between independent companies. By contrast, the Belgian tax authorities’ practice of making a unilateral downward adjustment without the need to establish that the profit that is to be adjusted has already been included in the profit of another company and that it is profit which would have been made by that other company if the relevant transactions had been between independent companies is not provided for in Article 185(2)(b) of the CIR 92.116In fact, contrary to the Kingdom of Belgium’s contention and as the Court of Justice confirmed in the judgment on appeal, even though the tax rulings formally invoked Article 185(2)(b) of the CIR 92, the excess profit exemption scheme, which the Commission classified as a State aid scheme, was based on the Belgian tax authorities’ consistent administrative practice. As has just been established in paragraph 115 above, that practice differed from what was provided for in Article 185(2)(b) of the CIR 92.117Accordingly, the Commission was right to find that the excess profit exemption, as applied by the Belgian tax authorities, constituted a derogation from the reference system accepted by the Commission, that is to say, the ordinary Belgian corporate income tax system, which included, in particular, Article 185(2)(b) of the CIR 92, as has been noted in paragraph 64 above. (2) Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable situation 118As regards the Commission’s finding that the scheme at issue differentiates between the beneficiaries of the exemptions and other operators who are in a comparable situation, it should be noted that, in recitals 138 to 140 of the contested decision, the Commission put forward three alternative grounds for its conclusion. It is appropriate to examine each of these in turn, for the sake of completeness. (i) Different treatment of beneficiaries forming part of a multinational group of undertakings 119In recital 138 of the contested decision, the Commission asserted that the scheme was selective because it was only open to entities that were part of a multinational group of undertakings.120It is true that Article 185(2)(b) of the CIR 92 is intended to apply to integrated multinational group companies. However, as the Kingdom of Belgium argues, the purpose of Article 185(2) of the CIR 92 is precisely to put associated and unrelated undertakings on an equal footing.121In that regard, as stated in paragraph 49 above, it must be recalled that the objective of the ordinary Belgian corporate income tax system, as is apparent from recital 129 of the contested decision, is the taxation of all the taxable profits of entities subject to Belgian corporate income tax, whether they are standalone entities or form part of a multinational group of undertakings. In addition, as stated in paragraph 54 above, according to the normal rules of taxation in Belgium, the starting point for the taxable profit of undertakings is all the profit realised or registered in their accounts.122By contrast, the excess profit exemption applied by the Belgian tax authorities, in so far as it derogates from Article 185(2) of the CIR 92, granted a tax reduction to the beneficiaries concerned, on the ground that they were part of a multinational group of undertakings, by allowing them to deduct part of their recorded profit from their tax base, without that exempted profit having been included in the profit of another group company.123Therefore, entities forming part of a multinational group which benefited under the scheme at issue from an excess profit exemption, in the form of an exemption percentage calculated on the basis of a hypothetical average profit that disregarded the total profit made by those companies and the adjustments provided for by law, would be treated differently from other entities, whether standalone or forming part of a group of undertakings, which would have been taxed in accordance with the normal Belgian rules of corporate income tax on their total profit actually recorded, where appropriate, in the case of integrated entities, after adjustment pursuant to Article 185(2)(b) of the CIR 92 under the conditions laid down in that provision.124Accordingly, the Commission cannot be criticised for having stated that the entities forming part of a multinational group which benefited from the excess profit exemption pursuant to the scheme at issue, as an adjustment which is not as such provided for by law, were treated differently from other entities in Belgium that did not benefit from it, although those entities were in a comparable factual and legal situation, in the light of the objective of the ordinary Belgian corporate income tax system, which is the taxation of all taxable profits of all companies resident or operating through a permanent establishment in Belgium. (ii) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium 125In recital 139 of the contested decision, the Commission stated that the scheme at issue was selective in so far as it was not open to companies that may have decided not to make investments, create employment or centralise activities in Belgium. The Commission noted that Article 20 of the Law of 24 December 2002 made the adoption of advance rulings conditional on the existence of a situation or of a transaction that had not had tax consequences and that an advance ruling was necessary in order to benefit from the excess profit exemption.126The Commission also noted that, in the sample of advance rulings granting an excess profit exemption that it had analysed, each ruling contained references to substantial investments, centralisation of activities or the creation of employment in Belgium. Accordingly, it found that the ‘new situation’ requirement that was a prerequisite for requests for advance rulings by which requesting parties sought to benefit from the excess profit exemption resulted in multinational groups that amended their business model by establishing new operations in Belgium being treated differently from any other economic operators, including multinational groups, that continued to operate under their existing business models in Belgium.127In that regard, it should be recalled that, in paragraphs 142 to 144 of the judgment on appeal, the Court of Justice confirmed that the choice of a sample consisting of 22 advance rulings, issued in 2005, 2007, 2010 and 2013, was appropriate and sufficiently representative.128It should also be noted that Article 20 of the Law of 24 December 2002 defines an ‘advance ruling’ as the legal act by which the Federal Public Service for Finance determines, in accordance with the applicable provisions, how the law will apply to a particular situation or transaction that has not yet had tax consequences. Moreover, Article 22 of that law makes clear that an advance ruling cannot be issued, in particular, when the request concerns situations or transactions identical to those having already had tax consequences as regards the requesting party.129Admittedly, it cannot be inferred from the provisions referred to in paragraph 128 above that the making of investments, creation of employment or centralisation of activities in Belgium is explicitly required as a condition for obtaining an advance ruling.130However, it is apparent from the sample of advance rulings analysed by the Commission in the contested decision that those rulings were in fact granted following requesting parties’ proposals to invest, to relocate certain operations or to create a certain number of jobs in Belgium. Indeed, the three examples described in footnote 80 to the contested decision, in which the parties requesting the advance rulings in question described their plans for investment and for recentralisation of activities in Belgium, show that, in practice, the condition for the issue of an advance ruling, that there should be a situation that had not had tax consequences, was satisfied by investments, by the centralisation of activities or by the creation of employment in Belgium.131In that regard, it should be borne in mind that, in the present case, it is precisely the administrative practice of the Belgian tax authorities – consisting in exempting profits by advance rulings – that has been considered to derogate from what is provided for in Article 185(2)(b) of the CIR 92. As a result of those advance rulings, their beneficiaries obtained an advantage consisting in a reduction in their tax base, because of the exemption of ‘excess’ profit. By contrast, entities that did not amend their business model in order to create new tax situations – which, in the light of that practice, consisted systematically in investments, centralisation of activities or creation of employment in Belgium – and therefore did not request an advance ruling were taxed on all of their taxable profits. Consequently, the scheme at issue resulted in companies that were in a comparable factual and legal situation being treated differently, in the light of the objective of the ordinary Belgian corporate income tax system.132In those circumstances, the Commission cannot be criticised for having stated, in recital 139 of the contested decision, that the system at issue was selective because it was not open to companies that had decided not to make investments, centralise activities or create employment in Belgium. (iii) Different treatment in comparison with undertakings that are part of a small group 133In the present case, the Commission stated, in recital 140 of the contested decision, that the scheme at issue was selective since only Belgian entities forming part of a large or medium-sized multinational group could effectively benefit from the excess profit exemption.134Indeed, in recital 140 of the contested decision, the Commission indicated that only entities belonging to a sufficiently large multinational group had an incentive to obtain an advance ruling, given that it was only within large corporate groups that synergies, economies of scale and other benefits were likely to generate a significant profit that would justify the request for an advance ruling. The Commission also noted that the process for obtaining such a ruling required a detailed request presenting the new situation that justified the exemption together with excess profit studies, which was more cumbersome for small corporate groups than for large corporate groups.135In that regard, it is not disputed that, within the sample of 22 advance rulings under the scheme at issue that was reviewed by the Commission, as described in recital 65 of the contested decision, and which was considered appropriate and representative in paragraphs 142 to 144 of the judgment on appeal, none of those rulings concerned entities belonging to small groups of undertakings.136Furthermore, as indicated in recital 66 of the contested decision, it is undisputed that, during the administrative procedure, following that finding by the Commission on the basis of the sample of 22 advance rulings and in response to a request by the Commission to that effect, the Kingdom of Belgium was unable to substantiate its claim that the exemption had also been granted to undertakings belonging to small corporate groups.137Consequently, in the light of the administrative practice referred to by the Commission, it is undertakings forming part of large and medium-sized groups that relied on the excess profit exemption scheme, to the exclusion of undertakings forming part of a small corporate group.138That finding cannot be called into question by the Kingdom of Belgium’s arguments. Contrary to what is claimed by the Kingdom of Belgium, it is apparent from the case-law that the fact that only one operator took advantage of a State measure is not sufficient to establish the selective nature of that measure, since that may result from, inter alia, lack of interest on the part of any other operator (see, to that effect, judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 91). As it is, it is apparent from the circumstances of the case that the Commission did indeed conclude on the basis of an appropriate and representative sample that the advance rulings had been systematically issued in respect of undertakings forming part of large or medium-sized groups.139In those circumstances, the Commission cannot be criticised for having stated, in recital 140 of the contested decision, that the system at issue was selective because it was not open to undertakings that were part of a small group.140In any event, even if the Commission had erred in relying on that ground relating to different treatment in comparison with undertakings forming part of a small group, that would not affect the validity of the other two grounds put forward by the Commission, which have been examined, respectively, in paragraphs 119 to 124 and 125 to 132 above. (3) Conclusion on the Commission’s primary line of reasoning 141In the light of the above, the Commission did not err in stating, after setting out its primary line of reasoning, that the excess profit exemption scheme derogated from the ordinary Belgian corporate income tax system. Moreover, the Commission did not err when it pointed out that that scheme was not available to all entities in a similar legal and factual situation in the light of the objective of the Belgian corporate income tax system, which was to tax the profits of all companies subject to tax in Belgium.142In those circumstances, it is not necessary to examine the merits of the Kingdom of Belgium’s arguments against the subsidiary line of reasoning with regard to selectivity which the Commission set out in Section 6.3.2.2 of the contested decision. (d) Whether there is any justification based on the nature and general scheme of the Belgian tax system 143The Kingdom of Belgium submits, in essence, that the general Belgian corporate income tax system has as its objective the taxation of profit of all companies subject to tax in Belgium, excluding profits which fall outside its jurisdiction. The exemption of the latter is therefore aimed at avoiding potential double taxation. Accordingly, even if the excess profit exemption scheme is selective, it would be justified by the nature and general scheme of the tax system.144It should be noted that, in recitals 173 to 181 of the contested decision, the Commission concluded, in essence, that the Kingdom of Belgium had not been able to establish that the measures at issue actually served the purpose of avoiding double taxation. According to the Commission, in so far as Article 185(2)(b) of the CIR 92 provided for a downward adjustment of a company’s profit if it had been included in the profit of another company, the exemption applied by the Belgian tax authorities, without it being necessary to prove that the excess profit to be exempted had been included in the tax base of another company, could not be justified by the general scheme of the system. Thus, the Commission concluded that the unilateral exemption at issue did not address situations of double taxation in a necessary and proportionate manner.145In that regard, it must be noted that, according to the case-law, a measure which constitutes an exception to the application of the general tax system may be justified if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system. In that context, it is necessary to distinguish between, on the one hand, the objectives attributed to a particular tax regime and which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives. Thus, tax exemptions which are the result of an objective that is unrelated to the tax system of which they form part cannot circumvent the requirements under Article 107(1) TFEU (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 64, 65, 69 and 70).146In the present case, it has been determined, notably in paragraph 115 above, that the excess profit exemption applied by the Belgian tax authorities was not conditional on it being demonstrated that that profit had been included in the profit of another company. Nor was that excess profit required actually to have been taxed in another State. Accordingly, it must be held that the measures at issue were not conditional on there being a situation of actual or possible double taxation.147In those circumstances, it cannot be maintained that the excess profit exemption, as applied by the Belgian tax authorities, was intended to avoid either actual or possible double taxation. Therefore, the Commission was right to conclude that such an exemption did not address situations of double taxation in a necessary and proportionate manner.148That conclusion cannot be called into question by the Kingdom of Belgium’s arguments to the effect that the general scheme of the Belgian tax system allows only profits falling within its jurisdiction to be taxed. As has been established in paragraphs 114 to 117 above, the Belgian tax authorities’ exemption of excess profit was not provided for by the ordinary Belgian corporate income tax system. Consequently, notwithstanding its exemption under the scheme at issue, that profit was, fundamentally, taxable in Belgium under that system, and it cannot therefore be considered not to fall within the tax jurisdiction of the Kingdom of Belgium.149In the light of the above, the Court must reject the arguments of the Kingdom of Belgium alleging that the Commission incorrectly found that there was no justification based on the nature and general scheme of the Belgian tax system, as well as all of the arguments by which the Kingdom of Belgium takes issue with the Commission’s conclusion that the scheme at issue was capable of granting a selective advantage to its beneficiaries. 3. The existence of a distortion of competition 150By this part of its case, the Kingdom of Belgium seeks a declaration that the Commission incorrectly found that there was a distortion of competition as a result of the measures at issue.151In recitals 187 and 188 of the contested decision, the Commission pointed out that the scheme at issue granted a selective advantage to its beneficiaries as well as to the multinational groups to which they belonged and that that advantage had led to a reduction of charges that should normally be borne by the beneficiaries in the course of their business operations. Therefore, the Commission found that the scheme at issue constituted operating aid for its beneficiaries and for the multinational groups to which they belonged. Accordingly, the Commission concluded that the scheme at issue distorted or threatened to distort competition and was liable to affect intra-Union trade.152In that regard, reference should be made to the case-law concerning the condition relating to distortion of competition, according to which, in principle, aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition (judgment of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraph 66).153In particular, the case-law states that any grant of aid to an undertaking pursuing its activities in the internal market is liable to cause distortion of competition and affect trade between Member States (see judgment of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and T‑69/06 RENV II, EU:T:2016:227, paragraph 113 and the case-law cited).154First, in the present case, as has been held in paragraphs 100 and 101 above, the exemption of excess profits of companies benefiting from advance rulings, as provided for by the measures at issue, constituted an advantage which placed those companies in a more favourable economic position than they would have been in had an advance ruling not been issued.155Secondly, it has been held in paragraph 141 above that, in so far as those measures derogated from the reference system, they represented an advantage available only to the beneficiaries of advance rulings and, therefore, were selective.156Thirdly, it must be noted that the excess profits exempted under the measures at issue came from Belgian entities that were part of multinational groups engaging in transactions with other group companies, established in other States. Consequently, in the present case, the aid in question necessarily resulted in a distortion of competition within the internal market. The excess profit exemption system was liable to alter the activities of those Belgian entities and of the companies within the groups of undertakings concerned, in particular in terms of investments, location of business operations and creation of employment, as well as the flow of intra-group transactions. As it is, within those groups of undertakings, such decisions were liable to be taken in such a way that the Belgian entity would make profits that would subsequently be exempt in Belgium. Such a dynamic was therefore liable to distort competition within the internal market.157In those circumstances, the Commission cannot be criticised for having found that the aid granted under the scheme at issue was liable to affect trade between the Member States and to distort or threaten to distort competition.158Accordingly, the arguments put forward by the Kingdom of Belgium in the context of the fourth part of the third plea in law, relating to the non-existence of any distortion of competition in the present case, must be rejected. 4. Conclusion on the plea in law alleging infringement of Article 107 TFEU and a manifest error of assessment of the scheme at issue as a State aid measure 159It is apparent from the findings in paragraphs 32, 81, 106, 141, 149 and 157 above that the Commission did not make an error of law or a manifest error of assessment in the contested decision when it concluded that the scheme at issue was financed through State resources, that the reference system was the ordinary system of taxation of corporate profits and that it did not cover the excess profit exemption applied by the Belgian tax authorities, that the scheme at issue granted its beneficiaries a selective advantage, which was not justified by the nature or general scheme of the Belgian tax system, and that that scheme had resulted in a distortion of competition.160Accordingly, the plea in law alleging infringement of Article 107 TFEU and a manifest error of assessment, in that the Commission considered that the excess profit system constituted a State aid measure, must be rejected. B. Plea in law alleging an error of assessment by the Commission regarding the identification of the beneficiaries of the alleged aid 161The Kingdom of Belgium argues that the Commission made an error of assessment in identifying, as beneficiaries of the alleged aid scheme, both the Belgian entities that had obtained advance rulings and the multinational groups to which they belonged.162163In the present case, the Commission indicated, in recital 183 of the contested decision, that the Belgian entities that had obtained an advance ruling enabling them to deduct profit considered to be excess profit, for the purpose of determining their taxable profit, were the beneficiaries of the State aid at issue.164In addition, in recital 184 of the contested decision, the Commission recalled that, in matters of State aid, separate legal entities could be considered to form one economic unit, which was capable of being considered to be the beneficiary of the aid. It thus found that, in the present case, the Belgian entities benefiting from the aid at issue had operated as central entrepreneurs for the benefit of other entities within their corporate groups which they often controlled. It also noted that the Belgian entities were, in turn, controlled by the entity managing the corporate group as a whole. The Commission thus inferred from this that the multinational group as a whole could be seen as the beneficiary of the aid measure.165Moreover, in recital 185 of the contested decision, the Commission stated that it was the group as a whole, irrespective of the fact that it was organised in different legal entities, that would have taken the decision to centralise certain activities in Belgium and to make the necessary investments there in order to benefit from advance rulings.166Thus, in recital 186 of the contested decision, it concluded that, in addition to the Belgian entities that had been allowed to benefit from the scheme at issue, the multinational groups to which those entities belonged had to be considered beneficiaries of the aid scheme within the meaning of Article 107(1) TFEU.167First of all, it must be recalled that in a decision which concerns an aid scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see, to that effect, judgments of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraphs 89 and 91; of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63; and of 13 June 2019, Copebi, C‑505/18, EU:C:2019:500, paragraphs 28 to 33).168In addition, according to established case-law, the Commission has a broad discretion when it is called upon to determine, in the context of the application of State aid provisions, whether, for the purposes of the application of those provisions in particular, separate legal entities form an economic unit (see, to that effect, judgments of 16 December 2010, AceaElectrabel Produzione v Commission, C‑480/09 P, EU:C:2010:787, paragraph 63, and of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 314).169Thus, it has been held that the Commission was entitled to consider, for the purpose of assessing the beneficiaries of State aid and the appropriate conclusions to be drawn from a decision ordering recovery of that aid, that there was an economic unit among a number of separate legal entities, in particular where they were linked by a relationship of control (see, to that effect, judgments of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 11, and of 16 December 2010, AceaElectrabel Produzione v Commission, C‑480/09 P, EU:C:2010:787, paragraph 64).170In recitals 184 to 186 of the contested decision, the Commission highlighted the fact that, in the context of the scheme at issue, there were links of control between the Belgian entity and the other entities of the group to which they belonged. Thus, the Commission noted the fact that the Belgian entity performed core functions for other entities of the group, which were often controlled by that entity. Moreover, the Commission pointed out that the decisions within the multinational corporate groups regarding the arrangements that gave rise to the exemptions in question, namely the centralisation of activities in Belgium or investments made in Belgium, were taken by entities within the group and were necessarily taken by those which controlled the group. Furthermore, it is apparent from the Kingdom of Belgium’s description of the excess profit scheme, as set out in particular in recital 14 of the contested decision, that the excess profit exempted was supposedly generated by synergies and economies of scale as a result of the Belgian entities’ membership of a multinational corporate group.171It follows that, in the contested decision, the Commission highlighted elements that supported its conclusion that there were, in principle, links of control within the multinational corporate groups to which the Belgian entities that had obtained advance rulings belonged. In view of those elements of the scheme at issue, it cannot be concluded that the Commission exceeded the limits of its discretion when it found that those groups constituted an economic unit with those entities, benefiting from State aid under that scheme, within the meaning of Article 107(1) TFEU.172In the light of the above considerations, the plea alleging that the Commission made an error of assessment in identifying the aid beneficiaries must be rejected. C. Plea in law, in the alternative, alleging breach of the general principle of legality and of Article 16(1) of Regulation 2015/1589 in so far as the Commission ordered the recovery of the alleged aid 173The Kingdom of Belgium submits that the principle of legal certainty requires that its application must be combined with that of the principle of legality. In that regard, it claims that the recovery ordered under the contested decision does not have any basis in law and, therefore, is contrary to the principle of legality and Article 16(1) of Regulation 2015/1589.174The Kingdom of Belgium claims, in essence, first, that the contested decision fails to provide adequate reasons for the identification, as beneficiaries, of the multinational groups to which the Belgian entities belong and for the determination of the amounts to be recovered; and, secondly, breach of the principles of legal certainty and legality as a result of the recovery ordered to be made from those groups.175As regards the complaints relating to the failure to state reasons, it should be noted that, according to the case-law cited in paragraph 167 above, in decisions which concern aid schemes, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary for the Member States to look at the individual situation of each undertaking concerned. However, the Commission’s decision must be supported by sufficient grounds to permit its implementation by the national authorities.176In the present case, as stated in paragraph 163 above, it should be noted that, in recital 183 of the contested decision, the Commission identified the beneficiaries of the aid at issue as being the Belgian entities that had deducted excess profit from their taxable profit pursuant to an advance ruling. In addition, as stated in paragraphs 164 to 166 above, in recitals 184 to 186 of the contested decision, the Commission indicated the reasons for its conclusion that there was an economic unit that was formed by those Belgian entities and the associated companies within the groups to which they belonged, in the light of the case-law.177Moreover, as regards the amounts to be recovered, it must be noted that, in recitals 207 to 211 of the contested decision, the Commission provided explanations as to the method of calculating the aid to be recovered. Thus, the Commission indicated that it was necessary to calculate the amount of the tax which should have been paid if the excess profit exemption had not been granted, taking into account the amount of tax saved as a consequence of all advance rulings delivered to the beneficiary concerned and the cumulated interest on that amount calculated as from the moment the aid was granted, that is to say, the date on which the tax saved would have been due in each tax year in the absence of the advance ruling. In addition, information was included on making the adjustments corresponding to the various deductions applicable. Lastly, it was noted that the amount to be recovered could be further refined subsequently in correspondence between the Kingdom of Belgium and the Commission.178It follows that the Commission provided explanations enabling the Kingdom of Belgium to look at the individual situation of each undertaking concerned as regards the beneficiaries from which the aid was to be recovered and the amount to be recovered. In addition, in the light of the complaints put forward in the context of the present action and the above considerations, it must be held that the Commission has provided sufficient explanations to enable the Kingdom of Belgium to ascertain the reasons for the Commission’s decision and the General Court to exercise its power of review.179With regard to the alleged breach of the principles of legal certainty and legality, the Kingdom of Belgium relies on the fact that aid was ordered to be recovered from the multinational groups to which the Belgian entities that had obtained an advance ruling belonged, when only those Belgian entities could have benefited from the exemptions in question.180In that regard, it is sufficient to recall the considerations set out in paragraphs 163 to 170 above and the conclusion drawn in paragraph 171 above, according to which the Commission was right to find that the multinational groups to which the Belgian entities belonged constituted an economic unit with those entities benefiting from State aid under that scheme within the meaning of Article 107(1) TFEU.181In the light of the above considerations, the Court must reject the fifth plea relied on by the Kingdom of Belgium, alleging breach of the general principle of legality and of Article 16(1) of Regulation 2015/1589, in so far as the Commission ordered the recovery of aid granted under the scheme at issue.182Since none of the pleas put forward by the Kingdom of Belgium is well founded, the action must be dismissed in its entirety. IV. Costs 183In accordance with Article 219 of the Rules of Procedure, in decisions of the General Court given after its decision has been set aside and the case referred back to it, the General Court is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Given that, in the judgment on appeal, the Court of Justice reserved the costs, it is for the General Court to decide also on the costs relating to the appeal proceedings.184Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs incurred by the Commission in the original proceedings before the General Court in Case T‑131/16 and in the present proceedings following referral in Case T‑131/16 RENV, in accordance with the form of order sought by the Commission.185As regards the costs relating to the appeal proceedings, in view of the fact that those proceedings concerned the original judgment in Joined Cases T‑131/16 and T‑263/16, the Kingdom of Belgium must be ordered to pay one half of the costs incurred by the Commission in the appeal proceedings in Case C‑337/19 P.186Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. Ireland shall therefore bear its own costs.On those grounds,hereby: 1. Dismisses the action; 2. Orders the Kingdom of Belgium to bear its own costs and to pay those incurred by the European Commission, comprising those incurred in the original proceedings before the General Court in Case T‑131/16, those incurred in the present proceedings following referral in Case T‑131/16 RENV, and one half of those incurred in the appeal proceedings in Case C‑337/19 P; 3. Orders Ireland to bear its own costs. MarcoulliFrimodt NielsenTomljenovićNorkusValasidisDelivered in open court in Luxembourg on 20 September 2023.V. Di BucciRegistrarM. van der WoudePresidentTable of contentsI. Background to the disputeA. The original judgmentB. The judgment on appealII. Procedure and forms of order soughtIII. LawA. Plea in law alleging infringement of Article 107 TFEU and a manifest error of assessment, in that the Commission considered that the excess profit system constituted a State aid measure1. The financing of the scheme at issue through State resources2. The existence of a selective advantage granted by the scheme at issue(a) Identification of the reference system(1) Taking national law into account(2) The determination of taxable corporate profits and the relevance of Article 24 of the CIR 92(3) The possibility of making adjustments to the profit recorded by taxable companies(4) The non-inclusion of the excess profit scheme in the reference system(i) The scope of Article 185(2) of the CIR 92(ii) The excess profit scheme(iii) Conclusion on the non-inclusion of the excess profit scheme in the reference system(b) The existence of an advantage as a result of the scheme at issue(1) Identification of the advantage granted by the scheme at issue(2) The joint analysis by the Commission of the criteria of advantage and selectivity(3) The existence of an advantage favouring the beneficiaries of the scheme at issue(c) The selective nature of the advantage as a result of a derogation from the reference system that differentiates between operators who are in a comparable situation(1) The existence of a derogation from the reference system(2) Whether there is differentiation, as a result of the derogation from the reference system, between economic operators who are in a comparable situation(i) Different treatment of beneficiaries forming part of a multinational group of undertakings(ii) Different treatment in comparison with undertakings that have not made investments, created employment or centralised activities in Belgium(iii) Different treatment in comparison with undertakings that are part of a small group(3) Conclusion on the Commission’s primary line of reasoning(d) Whether there is any justification based on the nature and general scheme of the Belgian tax system3. The existence of a distortion of competition4. Conclusion on the plea in law alleging infringement of Article 107 TFEU and a manifest error of assessment of the scheme at issue as a State aid measureB. Plea in law alleging an error of assessment by the Commission regarding the identification of the beneficiaries of the alleged aidC. Plea in law, in the alternative, alleging breach of the general principle of legality and of Article 16(1) of Regulation 2015/1589 in so far as the Commission ordered the recovery of the alleged aidIV. Costs( *1 ) Language of the case: English. | 5e753-7d5ddcf-4f78 | EN |
A national law cannot invalidate, by a retroactive, general and automatic rule, credit agreements concluded with foreign lenders which were not authorised to provide credit services in that Member State | 14 February 2019 ( *1 )(Reference for a preliminary ruling — Articles 56 and 63 TFEU — Freedom to provide services — Free movement of capital — National legislation providing that credit agreements featuring international elements concluded with a non-authorised lender are invalid — Regulation (EU) No 1215/2012 — Article 17(1) — Credit agreement concluded by a natural person with a view to the provision of tourist accommodation services — Concept of ‘consumer’ — Article 24, point 1 — Exclusive jurisdiction in matters relating to rights in rem in immovable property — Action for invalidity of a credit agreement and seeking the removal from the land register of the entry of a security interest)In Case C‑630/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Općinski sud u Rijeci — Stalna služba u Rabu (Municipal Court of Rijeka, Permanent Division, Island of Rab, Croatia), made by decision of 6 November 2017, received at the Court on 9 November 2017, in the proceedings Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen, THE COURT (Second Chamber),composed of K. Lenaerts, President of the Court, acting as President of the Second Chamber, A. Prechal, C. Toader (Rapporteur), A. Rosas and M. Ilešič, Judges,Advocate General: E. Tanchev,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 5 September 2018,after considering the observations submitted on behalf of:–Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen, by D. Malnar, M. Mlinac, P.G. Baučić, P. Novak, M. Sabolek, E. Garankić and A. Đureta, odvjetnici, and T. Borić, profesor,the Croatian Government, by T. Galli, acting as Agent,the European Commission, by M. Heller, L. Malferrari and M. Mataija, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 14 November 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Articles 56 TFEU and 63 TFEU, Article 4(1), Article 17, Article 24, point 1 and Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).2The request has been made in proceedings between Ms Anica Milivojević, domiciled in Croatia, and Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen (‘Raiffeisenbank’), a company incorporated under Austrian law, concerning an action brought by Ms Milivojević, for a declaration of invalidity of a credit agreement concluded with Raiffeisenbank and of a notarised deed related to the creation of a mortgage taken out to guarantee the debt arising out of that contract and the removal of that security from the land register. Legal context European Union law 3Recitals 6, 15 and 18 of Regulation No 1215/2012 state:‘(6)In order to attain the objective of free circulation of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding and directly applicable.…(15)The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. …(18)In relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for.’4Article 4(1) of that regulation provides:‘Subject to this regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’5Article 8(4) of that regulation is worded as follows:‘A person domiciled in a Member State may also be sued:(4)in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Member State in which the property is situated.’6Under Article 17(1) of that regulation:‘In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section ...’7Article 18(1) and (2) of Regulation No 1215/2012 provides as follows:‘1. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.2. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.’8In accordance with the provisions of Article 19 of that regulation:‘The provisions of this section may be departed from only by an agreement:(1)which is entered into after the dispute has arisen;(2)which allows the consumer to bring proceedings in courts other than those indicated in this Section; or(3)which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State.’9Under the first paragraph of Article 24, point 1, of the regulation:‘The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.’10Under Article 25(1) and (4) of the regulation:‘1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. …4. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24.’11Governing the application ratione temporis of Regulation No 1215/2012, Article 66(1) thereof provides:‘This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015.’ Croatian law Law of obligations 12Article 322 of the Zakon o obveznim odnosima (Law of obligations), in the version applicable to the main proceedings (Narodne novine, br. 78/2015) (‘the Law of obligations’) provides:‘(1) Any agreement contrary to the Constitution of the Republic of Croatia, the mandatory rules of law or morality shall be null and void, unless the purpose of the rule infringed refers to another legal consequence or as otherwise provided by law in specific cases.(2) If only one of the parties to a given contract is prohibited from concluding that contract, the contract is nonetheless valid, unless the law stipulates otherwise in specific cases, and the party which has infringed a statutory prohibition shall be bound to bear the consequences thereof.’13Under Article 323(1) of that law:‘When a contract is null and void, each contracting party shall be bound to give restitution to the other party of everything it has received by virtue of the null and void contract and, if that is not possible or if the nature of that which was executed precludes restitution, an appropriate pecuniary indemnity must be provided, which is to be fixed as a function of the price in place on the date on which the judicial decision is rendered, unless the law stipulates otherwise.’ Law on consumer credit 14The Zakon o potrošačkom kreditiranju (Law on consumer credit, Narodne novine, br. 75/2009; ‘Law on consumer credit’) entered into force on 1 January 2010. Article 29(1) of that Law states that, subject to certain exceptions, it does not apply to credit agreements concluded before its entry into force.15That Law was amended by the Zakon o izmjeni i dopunama Zakona o potrošačkom kreditiranju (Law amending and supplementing the Law on consumer credit, Narodne novine, br. 102/2015; ‘the Law on consumer credit, as amended’).16Article 19j of the Law on consumer credit, as amended, entitled ‘Nullity of contracts and effects of invalidity’, reads as follows:‘(1) Where the credit agreement was concluded by a creditor or credit intermediary who does not hold the authorisation required for the provision of consumer credit services or to act as a credit intermediary to consumers, the contract shall be null and void.(2) Where what was received must be returned in accordance with paragraph 1 of this article, the consumer shall pay interest on the amount received, with effect from the day on which the decision declaring the invalidity becomes final.’17In accordance with Article 19 of the Law on consumer credit, as amended, entitled ‘Jurisdiction’:‘(1) In the context of disputes relating to a credit agreement, the action brought by a consumer against the other party to the contract may be brought before either the courts of the State in which the other party to the contract has its registered office or, irrespective of the registered office of the other party, before the courts for the place where the consumer is domiciled.(2) Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.…’ Law on the invalidity of credit agreements featuring international elements 18Article 1, entitled ‘Subject matter of the law’, of the Zakon o ništetnosti ugovora o kreditu s međunarodnim obilježjima sklopljenih u Republici Hrvatske s neovlaštenim vjerovnikom (Law on the invalidity of credit agreements featuring international elements concluded in the Republic of Croatia with an non-authorised lender, Narodne novine, br. 72/2017; ‘the Law on the invalidity of credit agreements featuring international elements’) provides:‘(1) This law shall apply to credit agreements featuring international elements which have been concluded in the Republic of Croatia between debtors and non-authorised lenders …(2) The present law shall also apply to other legal acts established in the Republic of Croatia between debtors and non-authorised lenders that are consequential upon a credit contract featuring international elements referred to in the first paragraph of the present article or which are based on such a contract.’19Under Article 2 of that Law, entitled ‘Definitions’:‘For the purpose of the present law, the term:“debtor” shall refer to any physical or moral person to whom a credit has been granted by virtue of a credit contract featuring international elements, or any person who acts in the interest of a person to whom such a credit has been granted as a co-debtor, debtor creditor, co-debtor creditor, or guarantor;“non-authorised lender” shall refer to any moral person who has agreed to provide a credit to a debtor pursuant to a credit contract featuring international elements, and whose statutory seat is situated outside of the Republic of Croatia at the date of the contract featuring international elements and who proposes or supplies credit services in the Republic of Croatia, even though such a lender does not satisfy the conditions required by regulation for the supply of such services, and more precisely, it does not have the authorisations and/or approval of the competent authorities of the Republic of Croatia;“credit agreement featuring international elements” means any credit agreement, loan agreement or other agreement by which an non-authorised lender grants the debtor a certain sum of money and by which the debtor undertakes to pay the agreed interest and to reimburse the amount used within the time limit and in the manner agreed.’20Under the heading ‘Invalidity of credit agreements’, Article 3 of that Law provides:‘(1) Credit contracts featuring international elements which have been concluded in the Republic of Croatia between debtors and non-authorised lenders shall be null and void.(2) By way of derogation from paragraph 1 of this article, invalidity cannot be claimed where a contract has been performed in full.’21Article 4 of that Law, entitled ‘Invalidity of other legal acts’, provides:‘Any notarised act of a notary established on the basis of, or having a link with, an invalid contract within the meaning of Article 3 of the present law shall be null and void.22Article 7 of the Law on the cancellation of credit agreements featuring international elements, governing the ‘Effects of invalidity’, provides:‘Each contracting party shall be bound to give restitution to the other party of everything it has received by virtue of the invalid contract and, if that is not possible or if the nature of that which was executed precludes restitution, an appropriate pecuniary indemnity must be provided, which shall be fixed as a function of the price in place on the date on which the judicial decision is rendered.’23Article 8 of that Law lays down the rules of jurisdiction as follows:‘(1) In the framework of litigation concerning credit contracts featuring international elements, in the sense of the present law, an action initiated by the debtor against an non-authorised lender can be brought either before the courts of the State on the territory of which the non-authorised lender has its seat (whatever the seat of the non-authorised lender) or before the courts of the place where the debtor has his domicile or his seat.(2) The action instituted against the debtor by the non-authorised lender, in the sense of paragraph 1 of the present article, can only be brought before the courts of the State on the territory on which the debtor has his domicile or seat. The law applicable to null and void contracts in the sense of the present law is, exclusively, the law of Croatia and the court seised of an action concerning the invalidity of such a contract will apply the present law to such an action, without examining if there exist presumptions for the application of the law of the place of the conclusion of the contract by virtue of other legislative instruments.’24Article 10 of that law is drafted in the following terms:‘(1) Credit contracts featuring international elements, in the sense of the present law, which have been concluded in the Republic of Croatia, before the entry into force of the present law, between debtors and non-authorised lenders, shall be null and void from the date of their conclusion, resulting in the effects indicated in Article 7 of this law.(2) Other legal acts established in the Republic of Croatia, before the entry into force of the present law, between debtors and non-authorised lenders, which follow from a credit contract featuring international elements referred to in paragraph 1 of Article 1 of this law which are founded on such a contract, shall be null and void from the date of their establishment, entailing the effects set out in Article 7 of this law.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 25On 23 April 2015, Ms Milivojević brought a claim before the referring court, the Općinski sud u Rijeci — Stalna služba u Rabu (Municipal Court of Rijeka, Permanent Division, Island of Rab, Croatia) against Raffeisenbank for a declaration of invalidity of the credit agreement concluded by the parties on 5 January 2007, in the amount of EUR 47000 (‘the agreement at issue’) as well as of the notarised act relating to the creation of a mortgage taken out as a guarantee for the debt arising from that agreement and the removal from the land register of that security.26In support of her action, Ms Milivojević has relied on the provisions of Article 322(1) of the Law on obligations, under which a contract contrary to the Constitution of the Republic of Croatia, mandatory rules of law or morality, is null and void.27Although it is common ground in the main proceedings that Raiffeisenbank was a ‘non-authorised lender’ within the meaning of Article 2 of the Law on the invalidity of contracts featuring international elements, that is to say a lender established in another Member State has not been duly authorised by Hrvatska narodna banka (Croatian National Bank) to grant credit in Croatia, the referring court observes that the parties disagree on certain factual circumstances relating, in particular, to the place of the conclusion of the agreement at issue. While Raiffeisenbank submits that that agreement was concluded in Austria, Ms Milivojević claims that it was concluded in Croatia.28As is apparent from the order for reference, Ms Milivojević claimed to have concluded the agreement at issue via an intermediary to whom she paid a commission, with a view to extending and renovating her house, to create apartments to be let. It also appears from that order that it cannot be ruled out that part of the loan was used for private purposes. Ms Milivojević stated, furthermore, that she intended to repay the loan using the profits from that activity.29It is also apparent from the documents before the Court that the agreement at issue contained a clause conferring jurisdiction on either the Austrian courts or the courts of the debtor’s domicile.30The oral procedure was closed on 3 January 2017.31However, following the entry into force on 14 July 2017 of the Law on the invalidity of credit agreements featuring international elements, by order of 10 August 2017, the oral procedure was reopened.32The referring court considers that if the agreement at issue was concluded in Croatia, it could now be invalid on the basis of the provisions of that legislation, having regard to its retroactive application.33Accordingly, that court is doubtful, firstly, as to the compatibility of the Law on the invalidity of credit agreements featuring international elements with Articles 56 and 63 TFEU, in so far as that legislation is liable to prejudice the freedom of Raiffeisenbank to provide financial services. That court doubts whether the objectives put forward by the Croatian Government in support of the retroactive application of that law could justify such a prejudice.34The referring court also observes that the Law on consumer credit, as interpreted by the Vrhovni sud (Supreme Court, Croatia), cannot justify a finding of invalidity of credit agreements concluded before the entry into force of that law, as amended, namely 30 September 2015.35In that regard, the referring court states that following a meeting between the President of the Civil Chamber of the Vrhovni sud (Supreme Court) and the Presidents of the Civil Chambers of the Županijski sudovi (County Courts, Croatia) held on 11 and 12 April 2016, the Vrhovni sud (Supreme Court) decided, by a document dated 12 April 2016, that:‘3.1. (jurisdiction)In the context of disputes relating to the invalidity of credit agreements concluded between Croatian natural person applicants (consumers) and foreign legal entities (banks) in which the question of jurisdiction is settled after 1 July 2013, the competent Croatian court shall always be that which is determined by the provisions of Article 16 of Regulation [(EC) No 44/2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)] and Article 17 of Regulation [No 1215/2012].3.2. (Invalidity of the agreement)Although foreign institutions which did not hold the authorisation required to provide such services in the Republic of Croatia were precluded from concluding such agreements, those agreements are not null and void, since that consequence was not provided for by the Law on banks or by the Law on credit institutions before 30 September 2015, the date on which that consequence was enacted [following the entry into force of the Law on consumer credit, as amended].’36Secondly, the referring court has doubts as to various aspects connected with its international jurisdiction to hear the main proceedings, in the light of Regulation No 1215/2012. In that regard, that court states that it can, under the provisions of the Croatian Code of Civil Procedure, check its competence at that stage of the proceedings before it.37That court has doubts as to the compatibility of Article 8 of the Law on the invalidity of credit agreements featuring international elements with the rules of jurisdiction laid down in Regulation No 1215/2012. It is also unsure as to whether, having regard to the case-law of the Court, in particular in the judgments of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337), and of 20 January 2005, Gruber (C‑464/01, EU:C:2005:32), the agreement at issue could be classified as a ‘consumer contract’ and whether the dispute in the main proceedings falls within the rules of exclusive jurisdiction for actions in rem, under Article 24, point 1, of that regulation.38In those circumstances, the Općinski sud u Rijeci — Stalna služba u Rabu (Municipal Court of Rijeka, Permanent Division, Island of Rab) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Must Articles 56 and 63 [TFEU] be interpreted as precluding the provisions of the Law on invalidity of credit agreements featuring international elements concluded in the Republic of Croatia with an non-authorised lender, in particular the provisions of Article 10 of that law, which provides for the invalidity of credit agreements and other legal acts that are consequential upon the credit agreement concluded between a debtor (within the meaning of Article 1 and the first indent of Article 2 of that law) and an non-authorised lender (within the meaning of the second indent of Article 2 of that law) or are based on such an agreement, even if they were concluded before the entry into force of that law, that invalidity taking effect from the moment the contract was entered into, with the result that each of the contracting parties is obliged to return to the other party everything received by it on the basis of the void contract and, when that is impossible or when the nature of the action taken is incompatible with restoration, adequate pecuniary compensation must be paid, based on the prices in force on the date of delivery of the judicial decision?Must [Regulation No 1215/2012], in particular Articles 4(1) and 25 thereof, be interpreted as precluding the provisions of Article 8(1) and (2) of the Law on invalidity of credit agreements featuring international elements concluded in the Republic of Croatia with an non-authorised lender, in which it is laid down that, in disputes relating to credit agreements featuring international elements within the meaning of that law, the debtor may sue an non-authorised lender either before the courts of the State in which the latter has its registered office or, irrespective of where the non-authorised lender has its registered office, before the courts of the place where the debtor is domiciled or has his registered office, whereas an non-authorised lender, within the meaning of that law, may commence proceedings against the debtor only in the courts of the State in which the latter is domiciled or has his registered office?Is it a consumer contract within the meaning of Article 17(1) of Regulation No 1215/2012 and of the legal acquis of the European Union if the recipient of the loan is a natural person who has concluded a credit agreement in order to invest in holiday apartments with the aim of carrying on the business of offering tourists private board and lodging in his property?Must Article 24(1) of Regulation No 1215/2012 be interpreted as meaning that jurisdiction is enjoyed by the courts of the Republic of Croatia to hear and determine proceedings seeking a declaration of invalidity of a credit agreement and of the corresponding memoranda of guarantee, together with cancellation of the registration of a mortgage in the Land Registry, when, in order to guarantee performance of the obligations under the credit agreement, that mortgage was secured upon immovable property of the debtor situated within the Republic of Croatia?’ Consideration of the questions referred The jurisdiction of the Court to answer the first question 39The Croatian Government submits that the Court does not have jurisdiction to examine the first question in so far as the agreement at issue was concluded on 5 January 2007, namely before the accession of the Republic of Croatia to the European Union on 1 July 2013. The Court has no jurisdiction to reply to a question on the interpretation of EU law referred by a court of a Member State where the factual circumstances to which EU law applies occurred before the accession of that Member State to the European Union. At the hearing, that government also claimed that the agreement was terminated during 2012.40In that regard, it should be noted, in the first place, that the referring court entertains doubts, in the context of the first question, as to the compatibility with Articles 56 and 63 TFEU of the Law on invalidity of credit agreements featuring international elements, adopted after the accession of the Republic of Croatia to the European Union. By reason of its retroactive effect, that legislation is applicable to the main proceedings and affects credit agreements concluded before the accession and other legal acts consequent upon such agreements.41In the second place, while it is true that the credit agreement at issue was concluded prior to that accession and although it was allegedly terminated before it, a fact which is not stated in the request for a preliminary ruling, it is apparent, however, from that request that some of the effects connected with that agreement and the legal acts consequent upon it, in particular the registration of the mortgage of which Ms Milivojević seeks the annulment, continue to make themselves felt.42As follows from Article 2 of the Act concerning the conditions of access of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21), the provisions of the original Treaties, in particular Articles 56 TFEU and 63 TFEU, are binding on the Republic of Croatia from the date of its accession, with the result that they apply to the future effects of situations arising prior to its accession (see, by analogy, judgment of 29 January 2002, Pokrzeptowicz-Meyer, C‑162/00, EU:C:2002:57, paragraph 50).43It follows from the foregoing that the arguments put forward by the Croatian Government to contest the jurisdiction of the Court to hear the first question must be rejected, since, although the agreement at issue which forms the subject matter of the main proceedings was concluded before the accession of the Republic of Croatia to the European Union, the fact remains that that question relates, in the present case, to a question of interpretation of EU law the answer to which is capable of calling into question the compatibility with EU law of national legislation adopted by that Member State after that date, which also has legal effects on that agreement after that accession. Admissibility of the first to third questions 44Raiffeisenbank and the Croatian Government contend that the first question is hypothetical in nature since it asserts that it has not been established that the Law on the invalidity of credit agreements featuring international elements is applicable to the main proceedings.45The Croatian Government has also alleged that the second and third questions are inadmissible, taking the view that the provisions of law to which the referring court refers in its questions, namely Article 4(1) and Article 17(1) of Regulation No 1215/2012, could no longer be relied upon once Raiffeisenbank has appeared before that court. With regard to Article 25 of that regulation, that government claims that it is not apparent from the request for a preliminary ruling that the parties concluded an agreement conferring jurisdiction.46As regards the first question, it is appropriate to note that although, at the current stage of the proceedings before it, the referring court has not yet settled the factual question of the determination of the place in which the agreement at issue was concluded, a question essential to the application of the Law on the invalidity of credit agreements featuring international elements, in accordance with Article 3 of that law, that fact does not restrict its power to assess at what stage of those proceedings it is necessary, for the requirements of those proceedings, for it to request a preliminary ruling from the Court (see, to that effect, judgments of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 41, and of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 31), the choice of the most opportune moment to do so being in its exclusive competence (see, to that effect, judgment of 15 March 2012, Sibilio, C‑157/11, not published, EU:C:2012:148, paragraph 31).47As regards the second and third questions, it should be recalled that, according to the settled case-law of the Court, in the context of the cooperation between the Court and national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 42 and the case-law cited).48It is also settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 42 and the case-law cited). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it and to understand the reasons for the referring court’s view that it needs answers to those questions in order to rule in the dispute before it (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 22 and the case-law cited). However, contrary to the Croatian Government’s submissions, it does not appear that the issue raised in the second and third questions is hypothetical.49In those circumstances, it must be held that the first to third questions are admissible. The first question 50By its first question, the referring court asks, in essence, whether Article 56 TFEU and Article 63 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which has the effect, inter alia, that credit agreements and legal acts based on such agreements concluded in that Member State between debtors and creditors established in another Member State, who do not hold a licence issued by the competent authorities of the first Member State to operate in that State, are null and void from the date on which they were concluded, even if they were concluded before the entry into force of that legislation. The relevant freedom of movement 51Since the question referred for a preliminary ruling concerns both Article 56 TFEU and Article 63 TFEU, it is necessary to establish, as a preliminary point, whether, and if so, to what extent, national legislation such as that at issue in the main proceedings is liable to affect the exercise of the freedom to provide services and/or the free movement of capital.52In the present case, it is apparent from the order for reference that the Law on the invalidity of credit agreements featuring international elements concerns financial services provided by credit institutions whose registered office is established outside Croatian territory and which do not hold licences and/or approvals from the competent Croatian authorities provided for to that end by national law.53In that regard, the Court has already held that such operations of a grant of credit on a commercial basis relate, in principle, both to the freedom to provide services within the meaning of Articles 56 TFEU et seq. and to the free movement of capital within the meaning of Articles 63 TFEU et seq. (judgment of 22 November 2018, Vorarlberger Landes- und Hypothekenbank, C‑625/17, EU:C:2018:939, paragraph 23 and the case-law cited).54Where a national measure relates to both the freedom to provide services and the free movement of capital, it is necessary to consider to what extent the exercise of those fundamental freedoms is affected and whether, in the circumstances of the main proceedings, one of them prevails over the other. The Court will, in principle, examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443, paragraph 70 and the case-law cited).55In so far as, in the main proceedings, the Law on the invalidity of credit agreements featuring international elements provides for the invalidity of any agreement concluded in Croatia by an non-authorised lender whose registered office is outside that Member State, such a legal regime affects the access to financial services on the Croatian market of economic operators established in other Member States which do not satisfy the conditions required by that legislation and particularly affects the freedom to provide services. Since the restrictive effects of those rules on the free movement of capital are merely an inevitable consequence of the restriction imposed on the provision of services (judgment of 3 October 2006, Fidium Finanz, C‑452/04, EU:C:2006:631, paragraph 48 and the case-law cited), it is not necessary to examine the compatibility of that decision in the light of Articles 63 TFEU et seq.56In consequence, the question referred must be examined only in the light of Article 56 TFEU et seq. relating to the freedom to provide services, in the light of the premiss that the agreement at issue was concluded in Croatia, a factual aspect which it is, however, for the referring court to verify. Article 56 TFEU 57In that regard, it is clear from the settled case-law of the Court that the freedom to provide services under Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services established in other Member States, but also the abolition of any restriction — even if it applies without distinction to national providers of services and to those from other Member States — which is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State where he lawfully provides similar services (judgment of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 35 and case-law cited).58It also follows from the case-law of the Court that the business of a credit institution, consisting of granting credit, constitutes a service within the meaning of Article 56 TFEU (judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443, paragraph 72 and the case-law cited).59It is apparent from the request for a preliminary ruling that, in the Croatian legal order, the invalidity of credit agreements concluded with a non-authorised lender is laid down by both the Law on consumer credit, as amended, and the Law on the invalidity of credit agreements featuring international elements. However, the scope of those two laws is not identical, that of the latter being more extensive in so far as, as is clear from Article 1(1) thereof, it applies to all credit agreements, including those concluded for business purposes. By contrast, the Law on consumer credit, as amended, applies only to agreements concluded by consumers.60As is also apparent from the order for reference, from 1 July 2013, the date of accession of the Republic of Croatia to the European Union, to 30 September 2015, the date of entry into force of the Law on consumer credit, as amended, that invalidity is effective only in respect of credit agreements concluded by non-authorised lenders with their registered office outside the Republic of Croatia, by virtue of the retroactive application of the Law on the invalidity of credit agreements featuring international elements.61Indeed, it follows from the interpretation of the Law on consumer credit, as amended, provided by the Vrhovni sud (Supreme Court), that the rule that consumer credit agreements concluded with an non-authorised lender are invalid does not apply, on the basis of that law, retroactively to situations arising prior to its entry into force, that is to say before 30 September 2015.62Consequently, to the extent that the Law on the invalidity of credit agreements featuring international elements establishes a derogation for certain financial services based on the fact that the service provider has its registered office in a Member State other than that in which the service is provided, it must be concluded that the Croatian law directly discriminated against creditors established outside the Republic of Croatia until 30 September 2015, the date from which the invalidity of the credit agreements concluded with an non-authorised lender was extended to agreements with creditors established in that Member State.63From that date, since the invalidity regime was applicable without distinction to all creditors, the Law on the invalidity of credit agreements featuring international elements constitutes, for that period, a restriction on the exercise of the freedom to provide services.64Indeed, as is apparent from the case-law of the Court, the concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States (judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443 paragraph 75 and the case-law cited). In the present case, the Law on the invalidity of credit agreements featuring international elements makes access to the Croatian financial services market for creditors based outside Croatia subject to their obtaining an authorisation issued by the Croatian Central Bank and thus makes the access to that market less attractive, so that it undermines the freedom guaranteed by Article 56 TFEU.65It is therefore necessary to examine, in the first place, whether the objectives which formed the basis of the adoption of that law can justify a derogation from Article 52 TFEU and, in the second place, whether that law is justified by overriding reasons of public interest provided, if that is the case, that it is suitable for securing the attainment of the objectives which it pursues and does not go beyond what is necessary in order to attain it see, to that effect, judgment of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 37 and the case-law cited).66With regard, first of all, to the period between the date of accession of the Republic of Croatia to the European Union and 30 September 2015, it follows from the case-law of the Court that, to the extent that the restrictive legislation at issue in the main proceedings is directly discriminatory, it is justified only by reasons of public order, public security or public health, provided for in Article 52 TFEU, to which Article 62 TFEU refers (see, to that effect, inter alia, judgments of 9 September 2010, Engelmann, C‑64/08, EU:C:2010:506, paragraph 34; of 22 October 2014, Blanco and Fabretti, C‑344/13 and C‑367/13, EU:C:2014:2311, paragraph 38; and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 26),67Recourse to such justification presupposes the existence of a genuine, sufficiently serious threat affecting one of the fundamental interests of society (judgment of 21 January 2010, Commission v Germany, C‑546/07, EU:C:2010:25, paragraph 49 and the case-law cited).68As is clear from the written observations and oral argument presented by the Croatian Government, the Law on the invalidity of credit agreements featuring international elements was adopted to protect a large number of Croatian citizens who had concluded agreements with lenders operating without having been duly authorised by the Croatian Central Bank. In that regard, the Croatian Government stated that, over the period between 2000 and 2010, approximately 3000 credit agreements were concluded by non-authorised creditors, in a total amount of approximately EUR 360 million. That legislation was adopted as a last resort, after several legislative acts, adopted before it, had tried in vain to remedy the consequences of such agreements, which justifies its retroactive application. That legislation thus seeks to maintain public order, the reputation and proper functioning of the financial sector, protection of the weaker party and, in particular, consumers’ rights.69In the light of the objectives pursued by the national legislation at issue in the main proceedings, it must be noted that, although the Croatian Government relies upon the concept of public order, it does not put forward any convincing argument which could be based on that concept which, as has already been pointed out in paragraph 67 of this judgment, presupposes the existence of a genuine, sufficiently serious threat affecting one of the fundamental interests of society, since economic considerations are not, furthermore, capable of justifying a derogation from Article 52 TFEU (see, by analogy, judgment of 21 January 2010, Commission v Germany, C‑546/07, EU:C:2010:25, paragraph 51).70Next, it is necessary to examine to what extent the restrictions which the regime of invalidity at issue entails are capable of being justified by overriding reasons in the public interest within the meaning of the case-law cited in paragraph 64 of this judgment, for the period from 30 September 2015.71In that regard, it should be noted that the overriding reasons of general interest relied on by the Republic of Croatia, include ones already accepted in the case-law of the Court, namely professional rules intended to protect recipients of services (judgment of 25 July 1991, Collectieve Antennevoorziening Gouda, C‑288/89, EU:C:1991:323, paragraph 14), the good reputation of the financial sector (judgment of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraph 44) and consumer protection (judgment of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 38).72Nonetheless, it must also be recalled that the reasons which may be relied on by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State and precise evidence enabling its arguments to be substantiated. Thus, if a Member State wishes to rely on an objective that is capable of justifying an obstacle to the free movement of capital arising from a national restrictive measure, it is under a duty to supply the court called upon to rule on that question with all the evidence capable of enabling that court to be satisfied that that measure does indeed fulfil the requirements arising from the principle of proportionality (see, by analogy, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 85).73In the absence of such evidence, it must be held that the Law on the invalidity of credit agreements featuring international elements clearly goes beyond what is necessary to achieve the objectives it seeks to pursue, since, through a general, automatic and retroactive rule, it provides for the invalidity of all credit agreements featuring international elements concluded with non-authorised lenders, with the exception of those which have been performed in full.74Furthermore, it should be noted, as does the European Commission, that other measures less prejudicial to the freedom to provide services, could have been adopted in order to permit a check of the legality of the credit agreements and the protection of the weaker party, namely, in particular, rules enabling the competent authorities to intervene, on the basis of a notification or on their own initiative, in the event of unfair commercial practices or infringement of consumers’ rights.75In the light of all the foregoing considerations, the answer to the first question is that Article 56 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which has the effect, inter alia, that credit agreements and legal acts based on those agreements concluded in that Member State between debtors and creditors established in another Member State who do not hold an authorisation, issued by the competent authorities of the first Member State, to operate in that State, are invalid from the date on which they were concluded, even if they were concluded before the entry into force of that legislation. The second question 76By its second question, the referring court asks, in essence, whether Article 4(1) and Article 25 of Regulation No 1215/2012 preclude legislation of a Member State, such as that at issue in the main proceedings, which, in the context of disputes concerning credit agreements featuring international elements falling within the scope of that regulation, allows debtors to bring an action against non-authorised lenders either before the courts of the State on the territory of which those lenders have their registered office, or before the courts of the place where the debtors have their domicile or registered office and restricts jurisdiction to hear actions brought by those creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether the debtors are consumers or professionals.77As a preliminary point, it should be noted that Regulation No 1215/2012 applies to actions brought after 10 January 2015. Since the action at issue in the main proceedings was brought on 23 April 2015 and concerned, having regard to the legal relationship between the parties to the main proceedings, the basis and conditions for its exercise, civil and commercial matters within the meaning of Article 1(1) of that regulation, its provisions apply in the present case.78As is apparent from the order for reference, Article 8(1) and (2) of the Law on the invalidity of credit agreements featuring international elements gives the debtor the right to choose between the courts of the State in which the non-authorised lender has its registered office and those of his own domicile, while the creditor must apply to the courts of the debtor’s domicile.79Under Article 1(1) of the Law on the invalidity of credit agreements featuring international elements, that law applies to such agreements concluded in Croatia between debtors and non-authorised lenders, without taking account of the status of the debtor, whether he is a consumer or a professional.80In so far as Article 8(1) and (2) of that law also applies to disputes between professionals, it must be noted that it departs from the general rule of jurisdiction laid down in Article 4(1) of Regulation No 1215/2012, that is to say, the defendant’s domicile, in that it extends the scope of more protective jurisdictional rules, laid down as an exception in Article 18(1) of that regulation in favour only of consumers, to all debtors.81It is appropriate to recall that, in the scheme of Regulation No 1215/2012, the jurisdiction of the courts of the Member State within the territory of which the defendant is domiciled is the general principle. It is only by way of derogation from that principle that that regulation provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another Member State (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 27). Accordingly, the fact that a Member State provides in its national legislation for rules of jurisdiction which derogate from that general principle, which are not provided for in another provision of that regulation, runs counter to the system instituted by that regulation and, more particularly, by Article 4 thereof.82Article 25 of Regulation No 1215/2012 recognises, under certain conditions, the legitimacy of agreements on jurisdiction concluded by the parties to determine the court of a Member State having jurisdiction to hear disputes arising or which may arise in connection with a particular legal relationship. In that regard, it should be observed that it follows from Articles 17 to 19 of Regulation No 1215/2012 that jurisdiction to hear a dispute concerning a consumer contract is determined, in principle, by the same rules, and, in accordance with Article 25(4) of that regulation, a jurisdiction clause can apply to such a contract only to the extent that it is not contrary to the provisions of Article 19 of that regulation.83It appears from the wording of Article 8 of the Law on the invalidity of credit agreements featuring international elements, which is, however, a matter for the referring court to ascertain, that the rules of jurisdiction which it introduces apply, notwithstanding the fact that agreements on jurisdiction which meet the requirements laid down by Article 25 of Regulation No 1215/2012 would have been made freely.84In the light of those considerations, the answer to the second question is that Article 4(1) and Article 25 of Regulation No 1215/2012 preclude legislation of a Member State, such as that at issue in the main proceedings, which, in the context of disputes concerning credit agreements featuring international elements which fall within the scope of that regulation, allows debtors to bring an action against non-authorised lenders either before the courts of the State in which they have their registered office or before the courts of the place where the debtors have their domicile or head office and restricts jurisdiction to hear actions brought by creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether they are consumers or professionals. The third question 85By its third question, the referring court asks, in essence, whether Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services can be regarded as a ‘consumer’ within the meaning of that provision.86It is appropriate, first of all, to recall that, in accordance with the settled case-law of the Court, the concepts used in Regulation No 1215/2012, in particular those which appear in Article 17(1) of the regulation, must be interpreted independently, by reference principally to the general scheme and objectives of the regulation, in order to ensure that it is applied uniformly in all the Member States (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 28).87The notion of a ‘consumer’ for the purposes of Articles 17 and 18 of Regulation No 1215/2012 must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain transactions and as an economic operator in relation to others (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 29 and the case-law cited).88In consequence, only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual’s own needs in terms of private consumption, are covered by the special rules laid down by the regulation to protect the consumer as the party deemed to be the weaker party. Such protection is, however, unwarranted in the case of contracts for the purpose of a trade or professional activity (judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 30 and the case-law cited).89That specific protection is also unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character (judgment of 3 July 1997, Benincasa, C‑269/95, EU:C:1997:337, paragraph 17).90It follows that the special rules of jurisdiction in Articles 17 to 19 of Regulation No 1215/2012 apply, in principle, only where the contract is concluded between the parties for the purpose of a use other than a trade or professional one of the relevant goods or services (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 31 and the case-law cited).91As regards, more particularly, a person who concludes a contract for a dual purpose, partly for use in his professional activity and partly for private matters, the Court has held that he could rely on those provisions only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the transaction in respect of which the contract was concluded, considered in its entirety (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 32 and the case-law cited).92It is in the light of those principles that it is for the referring court to determine whether, in the case before it, Ms Milivojević can be described as a ‘consumer’, within the meaning of Article 17(1) of Regulation No 1215/2012. For that purpose, the national court should take into consideration not only the content, nature and purpose of the contract, but also the objective circumstances in which it was concluded (judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 47).93In that regard, the referring court can take into consideration the fact that Ms Milivojević states that she concluded the credit agreement at issue for renovation of her house, in order, inter alia, to create flats for rent, without, however, excluding the fact that part of the sum borrowed was used for private purposes. In those circumstances, it follows from the case-law cited in paragraph 91 above that Ms Milivojević can be considered to have concluded the agreement at issue as a consumer only if the link between that contract and the professional activity in the form of tourist accommodation services is so marginal and negligible that it appears clearly that that contract was concluded essentially for private purposes.94Having regard to those considerations, the answer to the third question is that Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services cannot be regarded as a ‘consumer’ within the meaning of that provision, unless, in the light of the context of the transaction, regarded as a whole, for which the contract has been concluded, that contract has such a tenuous link to that professional activity that it appears clear that the contract is essentially for private purposes, which is a matter for the referring court to ascertain. The fourth question 95By its fourth question, the referring court asks, in essence, whether the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must be interpreted as meaning that an action ‘relating to rights in rem in immovable property’ within the meaning of that provision, constitutes an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement and for the removal from the land register of the mortgage on a building.96It follows from the wording of the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 that the courts of the Member State in which the property is situated have exclusive jurisdiction to hear and determine actions in matters relating to rights in rem in immovable property, without taking account of the domicile of the parties.97As follows from the settled case-law of the Court, an independent definition must be given in EU law to the phrase ‘in proceedings which have as their object rights in rem in immovable property’, in order to ensure its uniform application in all the Member States (see, to that effect, judgments of 3 April 2014, Weber, C‑438/12, EU:C:2014:212, paragraph 40, and of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 23).98The Court has also held that the provisions of the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must not be given a wider interpretation than is required by their objective. Those provisions have the effect of depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, of resulting in their being brought before a court which is not that of the domicile of any of them (see, to that effect, judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 28).99Furthermore, the Court has stated that the exclusive jurisdiction of the courts of the Contracting State in which the property is situated does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of that regulation and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 30 and the case-law cited).100It is important to note that, according to the settled case-law of the Court, the difference between a right in rem and a right in personam lies in the fact that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 31 and the case-law cited).101In the present case, with regard to the claims seeking a declaration of the invalidity of the agreement at issue and of the notarised deed related to the creation of a mortgage, it is clear that they are based on a right in personam which can be claimed only against the defendant. Therefore, those claims do not fall within the scope of the exclusive jurisdiction rule contained in Article 24, point 1, of Regulation No 1215/2012.102However, with regard to the request for removal from the land register of the registration of a mortgage, it must be noted that the mortgage, once duly constituted in accordance with the procedural and substantive rules laid down by the relevant national legislation, is a right in rem which has effects erga omnes.103Such an application, seeking the enforcement of powers arising from a right in rem, falls under the exclusive jurisdiction of the courts of the Member State in which the property is situated, pursuant to the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 41).104It should be added that, in the light of that exclusive jurisdiction of the court of the Member State in which the immovable property is situated to the request for removal from the land register for the registration of mortgages, that court also has a non-exclusive jurisdiction based on related actions, pursuant to Article 8(4) of Regulation No 1215/2012, to hear claims seeking annulment of the credit agreement and the notarised deed related to the creation of that mortgage, to the extent that these claims are brought against the same defendant and are capable, as is apparent from the material in the file available to the Court, of being joined.105In the light of those considerations the answer to the fourth question is that the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must be interpreted as meaning that an action ‘relating to rights in rem in immovable property’ within the meaning of that provision, constitutes an action for the removal from the land register of the mortgage on a building, but that an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement does not fall within that concept. Costs 106Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Second Chamber) hereby rules: 1. Article 56 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which has the effect, inter alia, that credit agreements and legal acts based on those agreements concluded in that Member State between debtors and creditors established in another Member State who do not hold an authorisation, issued by the competent authorities of the first Member State, to operate in that State, are invalid from the date on which they were concluded, even if they were concluded before the entry into force of that legislation. 2. Article 4(1) and Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude legislation of a Member State, such as that at issue in the main proceedings, which, in the context of disputes concerning credit agreements featuring international elements which fall within the scope of that regulation, allows debtors to bring an action against non-authorised lenders either before the courts of the State in which they have their registered office or before the courts of the place where the debtors have their domicile or head office and restricts jurisdiction to hear actions brought by creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether they are consumers or professionals. 3. Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services cannot be regarded as a ‘consumer’ within the meaning of that provision, unless, in the light of the context of the transaction, regarded as a whole, for which the contract has been concluded, that contract has such a tenuous link to that professional activity that it appears clear that the contract is essentially for private purposes, which is a matter for the referring court to ascertain. 4. The first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must be interpreted as meaning that an action ‘relating to rights in rem in immovable property’ within the meaning of that provision, constitutes an action for the removal from the land register of the mortgage on a building, but that an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement does not fall within that concept. [Signatures]( *1 ) Language of the case: Croatian. | 56ea6-f7283be-4943 | EN |
Under EU law it is not necessary that a person pursue an activity as an employed person in a Member State in order to be entitled to family benefits in respect of his children living in another Member State | 7 February 2019 ( *1 )(Reference for a preliminary ruling — Social security — Regulation (EC) No 883/2004 — Article 67 — Application for family benefits submitted by a person who has ceased to pursue an activity as an employed person in the competent Member State but continues to reside there — Entitlement to family benefits for family members resident in another Member State — Eligibility conditions)In Case C‑322/17,REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 15 May 2017, received at the Court on 30 May 2017, in the proceedings Eugen Bogatu v Minister for Social Protection, THE COURT (Third Chamber),composed of M. Vilaras, President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský (Rapporteur), L. Bay Larsen, M. Safjan and D. Šváby, Judges,Advocate General: P. Mengozzi,Registrar: C. Strömholm, Administrator,having regard to the written procedure and further to the hearing on 6 June 2018,after considering the observations submitted on behalf of:–Mr Bogatu, by C. Stamatescu, Solicitor, and D. Shortall, Barrister-at-Law,the Minister for Social Protection, by M. Browne, C. Keane and A. Morrissey, acting as Agents, and by M.D. Finan, Barrister-at-Law, and R. Mulcahy, Senior Counsel,the United Kingdom Government, by C. Crane and S. Brandon, acting as Agents, and by K. Apps, Barrister,the European Commission, by D. Martin and J. Tomkin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 October 2018,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Articles 11(2) and 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).2The request has been made in the context of a dispute between Mr Eugen Bogatu and the Minister for Social Protection (Ireland) (‘the Minister’) concerning the decision by which the Minister refused to pay Mr Bogatu family benefits for a portion of the period covered by his application. Legal context 3Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’), was repealed on 1 May 2010, the date on which Regulation No 883/2004 became applicable.4Article 2 of Regulation No 1408/71, headed ‘Persons covered’, stated in paragraph 1:‘This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States …, as well as to the members of their families …’5Article 73 of that regulation, headed ‘Employed or self-employed persons the members of whose families reside in a Member State other than the competent State’, provided, in particular:‘An employed … person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, …’6Article 2 of Regulation No 883/2004, headed ‘Persons covered’, states in paragraph 1:‘This Regulation shall apply to nationals of a Member State …, as well as to the members of their families …’7Article 11 of that regulation, which is headed ‘General rules’ and falls in Title II, headed ‘Determination of the legislation applicable’, states, in particular, in paragraph 2:‘For the purposes of this Title, persons receiving cash benefits because or as a consequence of [an] activity as an employed … person shall be considered to be pursuing the said activity. …’8Article 67 of that regulation, which is headed ‘Members of the family residing in another Member State’ and is part of Chapter 8, which is headed ‘Family benefits’, under Title III, headed ‘Special provisions concerning the various categories of benefits’, states:‘A person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his/her family members residing in another Member State, as if they were residing in the former Member State. …’9Article 68 of that regulation, which is headed ‘Priority rules in the event of overlapping’ and is part of the same chapter, provides, in particular:‘1. Where, during the same period and for the same family members, benefits are provided for under the legislation of more than one Member State the following priority rules shall apply:(a)in the case of benefits payable by more than one Member State on different bases, the order of priority shall be as follows: firstly, rights available on the basis of an activity as an employed or self-employed person, secondly, rights available on the basis of receipt of a pension and finally, rights obtained on the basis of residence;…’ The dispute in the main proceedings and the questions referred for a preliminary ruling 10Mr Bogatu is a Romanian national who has lived in Ireland since 2003. He is the father of two children who live in Romania.11Mr Bogatu pursued an activity as an employed person in Ireland between 26 May 2003 and 13 February 2009, the date on which he lost his job. Since then, he has received, in turn, a contributory unemployment benefit (from 20 February 2009 to 24 March 2010), then a non-contributory unemployment benefit (from 25 March 2010 to 4 January 2013) and finally a sickness benefit (from 15 January 2013 to 30 January 2015).12On 27 January 2009, he submitted a further claim in respect of family benefits.13By letters of 12 January 2011 and 16 January 2015, the Minister notified Mr Bogatu of his decision to approve that claim, except with regard to the period from 1 April 2010 to 31 January 2013. The Minister also notified Mr Bogatu that the reason for his refusal in respect of that period was that, during that period, Mr Bogatu did not fulfil any of the conditions needing to be satisfied in order to be entitled to family benefits for his children residing in Romania, since he was neither pursuing an activity as an employed person in Ireland nor receiving a contributory benefit there.14In his claim before the High Court (Ireland), Mr Bogatu does not dispute any of the facts on which the Minister has based his refusal, but claims that the Minister is relying on a misinterpretation of EU law.15In that regard, he submits, inter alia, that Article 67 of Regulation No 883/2004 must be interpreted in the same way as Article 73 of Regulation No 1408/71, from which it followed that any person insured in a Member State under a social security scheme applicable to employees was entitled to the corresponding family benefits for family members resident in another Member State, even if that person had ceased to pursue an activity as an employed person and was not receiving a contributory benefit.16The Minister argues in response that Article 67 of Regulation No 883/2004 cannot be interpreted in the same way as Article 73 of Regulation No 1408/71. Unlike the second of those articles, which applied to any ‘employed person’, the first uses the neutral word ‘person’. In addition, that word should itself be interpreted in the light of Article 11(2) of Regulation No 883/2004, which had no equivalent in Regulation No 1408/71, and from which it is apparent that a person who is no longer pursuing an activity as an employed person can continue to be considered to pursue that activity only if they receive cash benefits because or as a consequence of that activity as an employed person.17In its order for reference, the High Court points out, first, that it is not in dispute that Ireland is competent for the grant of family benefits to Mr Bogatu within the meaning of Article 67 of Regulation No 883/2004. Second, it notes that it is not generally necessary under Irish law that, either at the time of his application for family benefits or prior thereto, a person pursues or has pursued an activity as an employed person in Ireland in order to be entitled to those benefits, and that, in the specific case of a person in a situation such as that of Mr Bogatu, such entitlement is dependant only upon the satisfaction of the condition relating to the age of the child to which that person’s application to receive those benefits refers. Third, it explains that, in the present case, Mr Bogatu is entitled to receive family benefits under Irish law, subject to the implementation of Regulation No 883/2004.18In those circumstances the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Does Regulation No 883/2004, and in particular Article 67 thereof, when read in conjunction with Article 11(2) thereof, require that, in order to be eligible for “family benefit” …, a person must … be employed … in the competent Member State … or alternatively be in receipt of the cash benefits referred to in Article 11(2) of [that regulation]?(2)Is the reference to “cash benefits” in Article 11(2) of [Regulation No 883/2004] to be interpreted as referring only to a period during which a claimant is in actual receipt of cash benefits, or does it mean any period during which a claimant is covered for a cash benefit in the future, whether or not that benefit has been claimed at the time of application for family benefit?’ Consideration of the questions referred The first question 19By its first question, the referring court asks, in essence, whether Regulation No 883/2004 and, in particular, Article 67, read in conjunction with Article 11(2) thereof, must be interpreted as meaning that, in a situation such as that in the main proceedings, in order to be eligible to receive family benefits in the competent Member State, it is necessary for a person to pursue an activity as an employed person in that Member State or to be in receipt of cash benefits from that Member State because or as a consequence of such activity.20As follows from paragraphs 10 to 17 above, the referring court describes the situation at issue in the main proceedings as follows. First, the person applying for family benefits resides in the competent Member State, namely Ireland, and pursued an activity as an employed person there in the past, but has subsequently ceased pursuing such activity. Second, that person is the parent of two children who reside in another Member State, namely Romania. Third, the period in respect of which that person has requested that the referring court declare that he is entitled to receive family benefits is a period during which the competent Member State was providing him with a cash benefit classified as a ‘non-contributory allowance’ by national legislation.21In the light of that situation, it is appropriate to note, in the first place, that Article 67 of Regulation No 883/2004 states that a person is to be entitled to family benefits in accordance with the legislation of the competent Member State, including for his/her family members residing in another Member State, as if they were residing in the former Member State.22As is apparent from the wording of that article, although it refers to a ‘person’ being entitled to family benefits, it is not a condition of that article that any such person have a specific status and, therefore, it does not require, in particular, that he be an ‘employed person’. That being said, it does not itself set out the conditions to which the eligibility of that person for family benefits may be subject, but refers, in that regard, to the legislation of the relevant Member State.23Accordingly, in order to answer the question referred by the national court, it is necessary to interpret that article in the light of its context and the objective that it pursues.24First, with regard to the context of Article 67 of Regulation No 883/2004, it should be noted that that article must be read in conjunction, inter alia, with Article 68(1)(a) of that regulation, which is intended to apply where family benefits are provided for on different bases under the legislation of more than one Member State and which establishes, for such cases, priority rules requiring account to be taken, firstly, of rights available on the basis of an activity as an employed or self-employed person, secondly, of rights available on the basis of receipt of a pension and, finally, of rights obtained on the basis of residence.25As that provision refers to a number of bases giving rise to an entitlement to receive family benefits, including activity as an employed person, Article 67 of Regulation No 883/2004 cannot be considered to apply exclusively to entitlement on the basis of such activity.26Second, with regard to the objective pursued by Article 67 of Regulation No 883/2004, it should be noted that the objective of the EU legislature in adopting that regulation was, inter alia, to extend the scope of that regulation to categories of person other than employed persons falling under Regulation No 1408/71 and, in particular, to economically inactive persons who were not covered by the latter.27That objective is generally apparent from the EU legislature’s decision to state in Article 2(1) of Regulation No 883/2004 that that regulation is to apply, inter alia, to ‘nationals of a Member State’ who are or have been subject to the legislation of one or more Member States, whereas Article 2(1) of Regulation No 1408/71 provided that that prior regulation applied to ‘employed or self-employed persons’ who are or have been subject to the legislation of one or more Member States.28With regard specifically to family benefits, that objective is reflected by the use in Article 67 of Regulation No 883/2004 of the word ‘person’ where Article 73 of Regulation No 1408/71, which was succeeded by the former provision, refers to an ‘employed person’. In this respect, Article 67 of Regulation No 883/2004 reflects the intention of the EU legislature no longer to restrict the entitlement to family benefits solely to employed persons, but to extend it to other categories of person.29In the light of all of those factors, Article 67 of Regulation No 883/2004 must be interpreted as not requiring a given person to pursue an activity as an employed person in the competent Member State in order to be eligible for family benefits there.30In the second place, it follows from Article 11(2) of Regulation No 883/2004, to which the national court refers in its question, that a person receiving cash benefits because or as a consequence of activity as an employed person, that is to say, cash benefits the source of which is the fact of having pursued such activity in the past, must be considered, for the purpose of determining the legislation applicable to that person, to be pursuing such activity.31However, it follows from paragraph 25 above that Article 67 of Regulation No 883/2004 must be interpreted as not requiring the competence of a Member State for a given person with regard to family benefits to be based on the pursuance of any activity as an employed person, including past activity as an employed person.32It follows that the fact of receiving cash benefits covered, as the case may be, by Article 11(2) of Regulation No 883/2004 does not affect the conclusion in paragraph 29 above.33In the light of the findings above, the answer to the first question is that Regulation No 883/2004 and, in particular, Article 67, read in conjunction with Article 11(2) thereof, must be interpreted as meaning that, in a situation such as that in the main proceedings, in order to be eligible to receive family benefits in the competent Member State, it is not necessary for a person either to pursue an activity as an employed person in that Member State or to be in receipt of cash benefits from that Member State because or as a consequence of such activity. The second question 34By its second question, the referring court asks, in essence, whether Article 11(2) of Regulation No 883/2004 must be interpreted as meaning that, when the relevant person submits his claim for family benefits, he must actually be in receipt of cash benefits or must be eligible to receive such cash benefits.35In view of the answer to the first question, there is no need to reply to the second question referred by the national court. Costs 36Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Third Chamber) hereby rules: Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and, in particular, Article 67, read in conjunction with Article 11(2) thereof, must be interpreted as meaning that, in a situation such as that in the main proceedings, in order to be eligible to receive family benefits in the competent Member State, it is not necessary for a person either to pursue an activity as an employed person in that Member State or to be in receipt of cash benefits from that Member State because or as a consequence of such activity. VilarasMalenovskýBay LarsenSafjanŠvábyDelivered in open court in Luxembourg on 7 February 2019.A. Calot EscobarRegistrarK. LenaertsPresident( *1 ) Language of the case: English. | e0e44-8686690-4b28 | EN |
Advocate General Wahl proposes that the Court of Justice should dismiss Austria’s action against the new German motorway charge | 18 June 2019 ( *1 ) ( i )(Failure of a Member State to fulfil obligations — Articles 18, 34, 56 and 92 TFEU — Legislation of a Member State prescribing an infrastructure use charge for passenger vehicles — Situation in which owners of vehicles registered in that Member State qualify for relief from motor vehicle tax in an amount corresponding to that charge)In Case C‑591/17,ACTION for failure to fulfil obligations under Article 259 TFEU, brought on 12 October 2017, Republic of Austria, represented by G. Hesse, J. Schmoll and C. Drexel, acting as Agents,applicant,supported by: Kingdom of the Netherlands, represented by J. Langer, J.M. Hoogveld and M.K. Bulterman, acting as Agents,intervener,v Federal Republic of Germany, represented by T. Henze and S. Eisenberg, acting as Agents, and by C. Hillgruber, Rechtsanwalt,defendant, Kingdom of Denmark, represented by J. Nymann-Lindegren and M. Wolff, acting as Agents,THE COURT (Grand Chamber),composed of K. Lenaerts, President, R. Silva de Lapuerta (Rapporteur), Vice-President, J.-C. Bonichot, A. Arabadjiev, E. Regan and C. Lycourgos, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, C.G. Fernlund, P.G. Xuereb, N. Piçarra and L.S. Rossi, Judges,Advocate General: N. Wahl,Registrar: K. Malacek, Administrator,having regard to the written procedure and further to the hearing on 11 December 2018,after hearing the Opinion of the Advocate General at the sitting on 6 February 2019,gives the following Judgment 1By its application, the Republic of Austria asks the Court to declare that the Federal Republic of Germany has infringed Articles 18, 34, 56 and 92 TFEU by introducing the infrastructure use charge for passenger vehicles by means of the Infrastrukturabgabegesetz (the law on infrastructure charges) of 8 June 2015 (BGBl. I, p. 904), in the version resulting from Article 1 of the Law of 18 May 2017 (BGBl. I, p. 1218) (‘the InfrAG’), and by providing relief from motor vehicle tax corresponding, at the least, to the amount of that charge for the owners of vehicles registered in Germany, introduced in the Kraftfahrzeugsteuergesetz (the law on motor vehicle tax) of 26 September 2002 (BGBl. I, p. 3818; ‘the KraftStG’) by means of the Zweites Verkehrsteueränderungsgesetz (the second law amending the road traffic tax) of 8 June 2015 (BGBl. I, p. 901), and latterly amended by the Gesetz zur Änderung des Zweiten Verkehrsteueränderungsgesetzes (the law amending the second law amending the road traffic tax) of 6 June 2017 (BGBl. I, p. 1493) (together, ‘the national measures at issue’). Legal context EU law 2The first subparagraph of Article 1 of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42), as amended by Directive 2011/76/EC of the European Parliament and of the Council of 27 September 2011 (OJ 2011 L 269, p. 1) (‘the Eurovignette Directive’), provides that that directive applies to vehicle taxes, tolls and user charges imposed on vehicles as defined in Article 2 thereof. Article 2(d) of that directive defines a ‘vehicle’ for the purposes of the Eurovignette Directive as ‘a motor vehicle or articulated vehicle combination intended or used for the carriage by road of goods and having a maximum permissible laden weight of over 3.5 tonnes’.3Article 7 of the Eurovignette Directive provides:‘1. Without prejudice to Article 9 paragraph 1a, Member States may maintain or introduce tolls and/or user charges on the trans-European road network or on certain sections of that network, and on any other additional sections of their network of motorways which are not part of the trans-European road network under the conditions laid down in paragraphs 2, 3, 4 and 5 of this Article and in Articles 7a to 7k. This shall be without prejudice to the right of Member States, in compliance with the Treaty on the Functioning of the European Union, to apply tolls and/or user charges on other roads, provided that the imposition of tolls and/or user charges on such other roads does not discriminate against international traffic and does not result in the distortion of competition between operators.…3. Tolls and user charges shall not discriminate, directly or indirectly, on the grounds of nationality of the haulier, the Member State or the third country of establishment of the haulier or of registration of the vehicle, or the origin or destination of the transport operation.…’4Article 7k of that directive provides:‘Without prejudice to Articles 107 and 108 of the Treaty on the Functioning of the European Union, this Directive does not affect the freedom of Member States which introduce a system of tolls and/or user charges for infrastructure to provide appropriate compensation for those charges.’ German law The InfrAG 5Paragraph 1 of the InfrAG prescribes the payment of a charge (‘the infrastructure use charge’) for the use by passenger vehicles of federal roads, within the meaning of Paragraph 1 of the Bundesfernstraßengesetz (the law on federal roads), in the version published on 28 June 2007 (BGBl. I, p. 1206), including motorways.6In accordance with Paragraphs 3 and 7 of the InfrAG, for vehicles registered in Germany, the infrastructure use charge must be paid, in the form of an annual vignette, by the vehicle owner. Under Paragraph 5(1) of the InfrAG, the amount of the charge is determined by a decision of the responsible authority. The vignette is deemed to have been acquired at the time of registration.7For vehicles registered abroad, the obligation to pay the charge, which is payable only on use of the motorways, falls on either the owner or the driver of the vehicle during that use, and arises, in accordance with Paragraph 5(4) of the InfrAG, on the first use of a road that is subject to the charge after the crossing of a border. The charge must be paid by means of purchasing a vignette. In that respect, there is a choice between a 10-day vignette, a 2-month vignette or an annual vignette.8The amount of the charge to be paid, as set out in subparagraph 1 of the Annex to Paragraph 8 of the InfrAG, is calculated on the basis of cylinder capacity, the type of engine (positive ignition or compression ignition) and the emission standard. That subparagraph is worded as follows:‘The amount of the infrastructure use charge:1.as regards the 10-day vignette for vehicles, with respect to which, for an annual vignette under point 3, an infrastructure use charge of(a)less than EUR 20 must be paid, shall be EUR 2.50(b)less than EUR 40 must be paid, shall be EUR 4(c)less than EUR 70 must be paid, shall be EUR 8(d)less than EUR 100 must be paid, shall be EUR 14(e)less than EUR 130 must be paid, shall be EUR 20 and(f)EUR 130 must be paid, shall be EUR 25.2.as regards the two-month vignette for vehicles, with respect to which, for an annual vignette under point 3, an infrastructure use charge ofless than EUR 20 must be paid, shall be EUR 7less than EUR 40 must be paid, shall be EUR 11less than EUR 70 must be paid, shall be EUR 18less than EUR 100 must be paid, shall be EUR 30less than EUR 130 must be paid, shall be EUR 40 andEUR 130 must be paid, shall be EUR 50.3.as regards the annual vignette forvehicles within the meaning of Paragraph 1(1), points 1 and 3 with reciprocating piston and rotary piston engines for every 100 cm3 of cylinder capacity or part thereof when they(aa)are propelled by positive ignition engines and(aaa)do not meet the requirements of the emission standards in points (bbb) and (ccc) or compliance with which is not correctly demonstrated, shall be EUR 6.50(bbb)meet the requirements of the Euro 4 or Euro 5 emission standards, shall be EUR 2(ccc)meet the requirements of the Euro 6 emission standard, shall be EUR 1.80(bb)are propelled by compression ignition engines anddo not meet the requirements of the emission standards in points (bbb) and (ccc) or compliance with which is not correctly demonstrated, shall be EUR 9.50meet the requirements of the Euro 4 or Euro 5 emission standards, shall be EUR 5meet the requirements of the Euro 6 emission standard, shall be EUR 4.80vehicles within the meaning of Paragraph 1(1), point 2, for every 200 kg of maximum laden weight or part thereof, shall be EUR 16provided that the total amount shall not exceed EUR 130.’9If the roads subject to the charge are used without a valid vignette or if the vignette has been calculated at a level that is too low, the charge is collected a posteriori by decision, in accordance with Paragraph 12 of the InfrAG. In that case, the charge to be paid corresponds to the amount of the annual vignette or the difference between the amount already paid and the amount of the annual vignette.10Paragraph 11 of the InfrAG provides for random inspections to verify compliance with the obligation to pay the charge. In accordance with Paragraph 11(7) of the InfrAG, the authorities may, at the place of inspection, require payment of the cost of the annual vignette and of a security of an amount equivalent to the fine to be imposed under Paragraph 14 of the InfrAG, as well as the procedural costs. In addition, the driver may be prohibited from continuing his journey if the charge is not paid at the place of inspection despite a request to do so and if there are reasonable doubts whether it will be paid later, or if the documents necessary for the inspection are not presented, if the information requested is not provided or if a security imposed is not paid, wholly or in part.11Paragraph 14 of the InfrAG states that non-payment or incomplete payment of the infrastructure charge, failure to provide information or provision of incorrect information and failure to comply with an order to stop the vehicle in the context of an inspection with respect to the obligation to pay the charge are administrative offences punishable by a fine. The KraftStG 12Paragraph 9(6) of the KraftStG states the following:‘With respect to national vehicles, the annual tax [on motor vehicles] shall be reduced (relief) for(1)passenger vehicles, for every 100 cm3 of cylinder capacity or part of that volume,when they comply with the obligatory limit values of Table 2 of Annex I to Regulation (EC) No 715/2007 [of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1),] and are propelled by:positive-ignition engines, by EUR 2.32,compression-ignition engines, by EUR 5.32,when they comply with the obligatory limit values of Table 1 of Annex I to [Regulation 715/2007] or line B of vehicle category M of the tables in point 5.3.1.4 of Annex I to [Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles (OJ 1970 L 76, p. 1),] in the version in force until 1 January 2013 and are propelled bypositive ignition engines, by EUR 2,compression ignition engines, by EUR 5,when they do not comply with the requirements under points (a) and (b) and are propelled bypositive ignition engines, by EUR 6.50,compression ignition engines, by EUR 9.50provided that the total does not exceed EUR 130;(2)motor homes for every 200 kg of maximum laden weight or part of that weight, by EUR 16, provided that the total does not exceed EUR 130;(3)passenger vehicles and motor homes witha registration number issued with respect to vintage cars, by EUR 130,a seasonal registration number issued with respect to each day of the period of use, by the proportion of the corresponding annual amount under points 1 to 3(a).The amount of the relief due under the first sentence shall be limited to the annual tax due under subparagraph 1, points 2 and 2a, and under subparagraph 4, point 2, in the case of seasonal registrations to the proportion of the annual amount corresponding to the period of use.’13In accordance with Paragraph 3(2) of the law amending the second law amending the road traffic tax, the entry into force of that legislation is dependent on commencement of the collection of the infrastructure use charge, in accordance with the InfrAG. Pre-litigation procedure and proceedings before the Court 14By letter of formal notice dated 18 June 2015, the European Commission initiated infringement proceedings against the Federal Republic of Germany, challenging, first, the combined effects of the national measures at issue and, second, the cost of short-term vignettes. That letter of formal notice, supplemented by a second letter of formal notice dated 10 December 2015, drew the attention of the German authorities to a possible infringement by those measures of Articles 18, 34, 45, 56 and 92 TFEU. Following correspondence with the German authorities and having issued a reasoned opinion on 28 April 2016, the Commission decided, on 29 September 2016, to bring proceedings before the Court in accordance with Article 258 TFEU.15However, after amendments were made to the provisions of the German legislation criticised by it, the Commission decided, on 17 May 2017, to terminate the infringement procedure.16By a letter dated 7 July 2017, the Republic of Austria brought before the Commission, under Article 259 TFEU, the possibility of an infringement by the Federal Republic of Germany of Articles 18, 34, 45, 56 and 92 TFEU resulting from the combined effects of the infrastructure use charge and the relief from motor vehicle tax for the proprietors of vehicles registered in Germany.17By letter dated 14 July 2017, the Commission acknowledged receipt of the letter from the Republic of Austria.18By letter dated 11 August 2017, the Federal Republic of Germany rejected the arguments of the Republic of Austria and justified the national measures at issue essentially by reference to a change in system, moving from financing by means of taxation to financing by users, and to the contention that the measures providing compensation are lawful on the basis of the Eurovignette Directive.19On 31 August 2017 a hearing was held at the offices of the Commission, at which the Republic of Austria and the Federal Republic of Germany each submitted their arguments.20The Commission did not issue a reasoned opinion within the three-month period provided for in Article 259 TFEU.21On 12 October 2017 the Republic of Austria therefore brought the present action.22By decisions of the President of the Court of 15 January and 14 February 2018, the Kingdom of the Netherlands and the Kingdom of Denmark were granted leave to intervene in support of the Republic of Austria and of the Federal Republic of Germany respectively. The action 23In support of its action, the Republic of Austria relies on four grounds of complaint with respect to the national legislation at issue, on the understanding that the legislation, although adopted, has not yet entered into force. The first and second grounds of complaint concern an infringement of Article 18 TFEU resulting, on the one hand, from the combined effect of the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany, and, on the other, the structuring and application of the infrastructure use charge. The third ground of complaint concerns an infringement of Articles 34 and 56 TFEU by the measures criticised within the first and second grounds of complaint, taken as a whole. The fourth ground of complaint concerns an infringement of Article 92 TFEU arising from the combined effect of the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany. The first ground of complaint: the infringement of Article 18 TFEU resulting from the combined effect of the national measures at issue Arguments of the parties 24The Republic of Austria claims that the combined effect of the infrastructure use charge and the concomitant relief from motor vehicle tax, in an amount at least equivalent to the amount of that charge, for which owners of vehicles registered in Germany qualify, has the consequence, de facto, that the burden of that charge falls only on the owners and drivers of vehicles registered in Member States other than Germany, the vast majority of whom are nationals of those States. That fact therefore entails indirect discrimination on the grounds of nationality, contrary to Article 18 TFEU.25That discrimination is a consequence of the absolute and inseverable link, both in terms of their substance and their temporal application, between the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany, a link which entails that the national measures at issue must be considered and assessed together from the perspective of EU law.26The Republic of Austria states, further, that the aim of the national measures at issue is to implement an electoral promise made during the Bundestag election campaign in 2013 in Germany, concerning the foreign drivers of motor vehicles being required to participate in the costs of financing the German infrastructure without imposing an additional burden on German owners of vehicles.27Last, the Republic of Austria refers to paragraph 23 of the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), as support for the existence of the indirect discrimination claimed.28The Federal Republic of Germany, while accepting that the national measures at issue form a unit both in terms of their subjective aims and of their objective content, disputes the existence of any discrimination resulting from the introduction of the infrastructure use charge, even considered in combination with the relief from motor vehicle tax.29In that regard, the Federal Republic of Germany observes, first, that, while the introduction of the infrastructure use charge alters the status quo to the disadvantage of owners and drivers of vehicles registered abroad, it does not entail treatment that is to the disadvantage of or that penalises those owners and drivers in comparison with owners of vehicles registered in Germany. On the contrary, the owners and drivers of vehicles registered in Member States other than Germany are placed, with respect to the contribution to the financing of the federal transport infrastructure, in a situation that is more favourable than that of owners of vehicles registered in Germany, since the former must pay the infrastructure use charge only when they use the German motorways, whereas the latter are, in any event, subject to that charge and must, in addition, bear the motor vehicle tax, even if the latter tax may be reduced. Further, the burden on the owners and drivers of vehicles registered in Member States other than Germany, with respect to the infrastructure use charge, corresponds at its maximum to the burden which falls in that respect, in any event, on the owners of vehicles registered in Germany.30Second, the Federal Republic of Germany states that the fact that the relief from motor vehicle tax is to the benefit only of owners of vehicles registered in Germany is based on EU law, in particular Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (OJ 1983 L 105, p. 59), which itself establishes the distribution of rights to tax vehicles in accordance with the place of registration and, thereby, in accordance with the place of habitual residence. The restriction on the national powers to tax motor vehicles brought about by that directive, which is intended to prevent double taxation of market participants and EU citizens, given the absence of harmonisation in that area, means that, for each vehicle, the only tax of importance is the vehicle tax of the Member State where that vehicle is registered. The amount of the German motor vehicle tax, which affects only the owners of vehicles registered in Germany, is therefore, for the owners of vehicles registered in the other Member States, of no relevance.31Third, the Federal Republic of Germany argues that the introduction of an infrastructure use charge the proceeds of which are transferred to the transport budget and are wholly used for its earmarked purpose, namely the improvement of the federal transport infrastructure, meets the objective of increasing the extent to which that infrastructure is financed by its users. That objective led that Member State to a change of system, the aim being to move from financing by means of taxation to financing by users. Against that background, the Federal Republic of Germany, in exercising its competence to determine direct taxes, decided to adjust the motor vehicle tax, by introducing a relief from part of that tax, in order to maintain the overall financial burden on the owners of vehicles registered in that Member State at the previous level and to prevent disproportionate double taxation.32Fourth, the possibility of offsetting the infrastructure use charge by reducing the motor vehicle tax emerges from the history of Article 7(3) and Article 7k of the Eurovignette Directive, which serves as a template for rules on charges for the use of the road network by passenger vehicles. The recent practice of some Member States, such as the United Kingdom or the Kingdom of Belgium, which, with respect to heavy goods vehicles, make use of that possibility, confirms that the national measures at issue are compatible with EU law.33Fifth and last, the Federal Republic of Germany argues that statements made during an election campaign are of no relevance to the issue of whether there is any difference in treatment that constitutes discrimination.34In the alternative, the Federal Republic of Germany refers, as grounds justifying any indirect discrimination that may result from the combination of the national measures at issue, to considerations linked to the protection of the environment, the distribution of the burden between the national and foreign users of the infrastructure and to the change in the system of financing the federal transport infrastructure.35The Kingdom of the Netherlands essentially concurs with the arguments put forward by the Republic of Austria and emphasises that, in this case, the situation of owners of vehicles registered in Germany is comparable with that of owners and drivers of vehicles registered in a Member State other than Germany, who make use of German motorways.36The Kingdom of Denmark, on the other hand, endorses the position of the Federal Republic of Germany that the national measures at issue are not discriminatory and emphasises, in particular, the competence of the Member States to establish, amend and remove direct taxes and national charges that are not harmonised at the EU level. Findings of the Court 37The Republic of Austria claims in essence, in its first ground of complaint, that the infrastructure use charge and the relief from motor vehicle tax for vehicles registered in Germany, although not formally based on a distinction on grounds of nationality, result, through their combined effect, in German nationals being accorded more favourable treatment than that accorded to nationals of other Member States, and are, therefore, in breach of the first paragraph of Article 18 TFEU.38The first paragraph of Article 18 TFEU provides that, within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality is prohibited.39In that regard, first, it must be observed that, in accordance with settled case-law, Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific rules on non-discrimination (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 25 and the case-law cited).40The principle of non-discrimination on the grounds of nationality has been given effect, in particular, in the area of the free movement of goods, in Article 34 TFEU, read together with Article 36 TFEU (see, to that effect, judgment of 8 June 2017, Medisanus, C‑296/15, EU:C:2017:431, paragraph 65), in the area of free movement of workers, in Article 45 TFEU (see, to that effect, judgment of 22 June 2017, Bechtel, C‑20/16, EU:C:2017:488, paragraph 32 and the case-law cited) and, in the area of freedom to provide services, in Articles 56 to 62 TFEU (see, to that effect, judgment of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 32 and the case-law cited).41It follows that, in the present case, the national measures at issue can be examined having regard to the first paragraph of Article 18 TFEU only to the extent that they apply to situations which do not fall within the scope of such specific rules on non-discrimination laid down by the FEU Treaty.42Second, it must be recalled that the general principle of non-discrimination on the grounds of nationality, as enshrined in the first paragraph of Article 18 TFEU, prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, judgment of 13 April 2010, Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 40 and the case-law cited).43In order to determine whether the first ground of complaint of the Republic of Austria is well founded, it is necessary, in the first place, to ascertain whether the national measures at issue are sufficiently connected with one another that they can be the subject of a joint assessment with regard to EU law.44In that regard, first, it must be observed that, as is apparent from the documents submitted to the Court, the infrastructure use charge and the relief from motor vehicle tax were introduced on the same date, namely 8 June 2015, then amended on dates that were very close, namely 18 May 2017 and 6 June 2017 respectively, and that the application of that relief was dependent on the commencement of collection of that charge. Further, the amount of the relief enjoyed by the owners of vehicles registered in Germany corresponds to the amount of the infrastructure use charge that those owners were first required to pay, except as regards Euro 6 emissions standard vehicles, the owners of which qualify for relief from the motor vehicle tax in an amount that is greater than that of the charge which they were required to pay. It follows that the effect of the relief from motor vehicle tax is, in all circumstances, to provide, at the very least, compensation, to the owners of vehicles registered in Germany, for the new charge constituted by the infrastructure use charge.45Further, with respect to the collection of the infrastructure use charge from the owners of vehicles registered in Germany, the Federal Republic of Germany has provided that that charge is to be payable, in the same way as the motor vehicle tax, by virtue of the fact that the vehicle is registered.46It is therefore clear that, both in terms of their substance and their temporal application, there is such a sufficiently close connection between the national measures at issue that it is justifiable to undertake a joint assessment of them with regard to EU law, in particular Article 18 TFEU. The existence of such a connection is, moreover, recognised by the Federal Republic of Germany, as is apparent from paragraph 28 of the present judgment.47In the second place, it is necessary to ascertain whether the national measures at issue, assessed jointly, establish a difference in treatment on the ground of nationality.48In that regard, it is undisputed that, pursuant to those measures, all the users of German motorways are subject to the infrastructure use charge, irrespective of where their vehicles are registered. However, the owners of vehicles registered in Germany qualify for the relief from motor vehicle tax in an amount that is at least equivalent to the amount of the charge that they have had to pay, so that the economic burden of that charge rests, de facto, only on the owners and drivers of vehicles registered in a Member State other than Germany.49It is accordingly apparent that, because of the combination of the national measures at issue, the treatment of owners and drivers of vehicles registered in a Member State other than Germany, who make use of German motorways, is less favourable than that of the owners of vehicles registered in Germany, with regard to the use of those motorways, notwithstanding that they are in comparable situations with respect to that use.50Such unequal treatment is particularly plain with respect to Euro 6 emissions standard vehicles. Whereas the owners of that type of vehicle registered in Germany receive overcompensation for the infrastructure use charge, the owners and drivers of Euro 6 emissions standard vehicles registered in a Member State other than Germany, who make use of German motorways, must, in any event, bear that charge. Accordingly, the latter are treated less favourably not only in comparison with the owners of Euro 6 emissions standard vehicles registered in Germany but also in comparison with the owners of vehicles registered in Germany that are more polluting.51Last, while the difference in treatment that has been identified is not directly based on nationality, the fact remains that the vast majority of owners and drivers of vehicles registered in Member States other than Germany are not German nationals, whereas the vast majority of owners of vehicles registered in Germany are German nationals, so that such a difference has in fact the same outcome as a difference in treatment based on nationality.52The fact that, on the one hand, the owners of vehicles registered in Germany are liable to pay the infrastructure use charge and are, in addition, subject to motor vehicle tax, and that, on the other, the amount which has to be paid by the owners and drivers of vehicles registered in Member States other than Germany, with respect to that charge, corresponds, at its maximum, to the amount which has to be paid by the owners of vehicles registered in Germany, with respect to the same charge, in no way affects, contrary to what is argued by the Federal Republic of Germany, the finding made in paragraph 49 of the present judgment. Accordingly, the unequal treatment that has been identified, which is to the disadvantage of owners and drivers of vehicles registered in Member States other than Germany, is due to the fact that, because of the relief for which the owners of vehicles registered in Germany qualify, those persons are not, de facto, subject to the economic burden represented by the infrastructure use charge.53Nor can that finding be invalidated by the arguments put forward by the Federal Republic of Germany, summarised in paragraphs 30 to 32 of the present judgment.54First, as regards the argument that it is compatible with EU law that the relief from motor vehicle tax benefits solely owners of vehicles registered in Germany, the Court has indeed held that, since the taxation of motor vehicles has not been harmonised, the Member States are free to exercise their powers of taxation in that area, registration being the natural corollary of the exercise of those powers of taxation (see, to that effect, judgment of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraphs 40 and 41). That explains why the motor vehicle tax affects only the owners of vehicles registered in Germany, with the consequence that only they can qualify for the tax relief concerned.55However, that fact does not mean that the amount of that tax is of no relevance to the assessment of whether there is discrimination affecting the owners and drivers of vehicles registered in Member States other than Germany.56It must be recalled that, according to settled case-law, the Member States must exercise their competence in the area of direct taxation in a way that is compatible with EU law and, in particular, with the fundamental freedoms guaranteed by the FEU Treaty (judgments of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraph 40, and of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 44 and the case-law cited).57It follows that, when they establish taxes on motor vehicles, the Member States must have due regard for, inter alia, the principle of equal treatment, so that the arrangements made for the imposition of those taxes do not constitute a means of discrimination.58In this case, the effect of the relief from motor vehicle tax which is to the benefit of owners of vehicles registered in Germany is to offset entirely the infrastructure use charge paid by those persons, with the result that, as stated in paragraph 48 of the present judgment, the economic burden of that charge falls, de facto, solely on the owners and drivers of vehicles registered in Member States other than Germany, which constitutes a discriminatory measure which is to the disadvantage of the latter.59Accordingly, the amount of the motor vehicle tax is relevant with respect to owners and drivers of vehicles registered in Member States other than Germany in so far as the rules applicable for its determination give rise, in reality, to a difference in treatment that is to their disadvantage.60Second, as maintained by the Federal Republic of Germany, it is open to the Member States to alter the system for the financing of their road infrastructure by replacing a system of financing by means of taxation with a system of financing by all users, including the owners and drivers of vehicles registered in other Member States who use that infrastructure, so that all those users contribute in an equitable and proportionate way to that financing, provided that any such alteration complies with EU law, including the principle of non-discrimination enshrined in the first paragraph of Article 18 TFEU. Such an alteration is consistent with the freedom of each Member State to choose how to define the means of financing its public infrastructure, in a way that is compatible with EU law.61In this case, it is apparent from the written pleadings of the Federal Republic of Germany that that Member State decided, with respect to its federal transport infrastructure, to move in part from a system of financing by means of taxation to a system of financing based on the ‘user pays’ and ‘polluter pays’ principles.62That change in system rests on the introduction of the infrastructure use charge, to which all users of German motorways are subject, whether or not their vehicle is registered in Germany, and the revenue from which is entirely allocated to financing the road infrastructure, the Federal Republic of Germany having structured the rates of that charge to correspond to the emissions standard of the vehicles concerned.63It has, however, to be said that the national measures at issue do not appear to be consistent with the objective pursued by the Federal Republic of Germany when it introduced the infrastructure use charge, as stated in paragraph 61 of the present judgment.64In that regard, the Federal Republic of Germany, in parallel with the introduction of that charge, designed a mechanism to provide individual compensation for that charge, to benefit the owners of vehicles registered in Germany, by means of a relief from motor vehicle tax in an amount that is at least equivalent to the amount paid in respect of that charge.65It is not, however, possible to agree with the argument of the Federal Republic of Germany that that relief is a reflection of movement to a system of financing of road infrastructure by all users, pursuant to the ‘user pays’ and ‘polluter pays’ principles.66The Federal Republic of Germany has itself accepted in its written pleadings that, because of the relief from motor vehicle tax for which they qualify, the owners of vehicles registered in Germany, notwithstanding the fact that they are subject to payment of the infrastructure use charge, have not in reality incurred any additional financial burden since the introduction of that charge.67Admittedly, that Member State argues that those owners were already contributing to the financing of the road infrastructure before the introduction of that charge, through the motor vehicle tax, and that the mechanism for providing compensation is intended to avoid a disproportionate tax burden. However, other than the Federal Republic of Germany itself stating, in general terms, that the federal infrastructure is financed from taxation, it has produced no details of the extent of that contribution and has therefore in no way established that the compensation granted to those owners, in the form of a relief from that tax in an amount at least equivalent to the amount of the infrastructure use charge, does not exceed that contribution and is therefore appropriate.68Further, with respect to owners of vehicles registered in Germany, it must be observed that the infrastructure use charge is designed in such a way that it is not at all dependent on those owners actually using federal roads. Accordingly, first, that charge is payable even by such an owner who never makes use of those roads. Second, an owner of a vehicle registered in Germany is automatically subject to the annual charge and therefore has no opportunity to choose a vignette for a shorter period if that better corresponds to the frequency of his use of those roads. Those factors, coupled with the fact that those owners qualify moreover for a relief from the motor vehicle tax in an amount that is at least equivalent to the amount paid with respect to that charge, demonstrate that movement to a system of financing based on the ‘user pays’ and ‘polluter pays’ principles in reality affects exclusively the owners and drivers of vehicles registered in Member States other than Germany, whereas the principle of financing by means of taxation continues to apply with respect to owners of vehicles registered in Germany.69In those circumstances, it must be concluded that the mechanism for providing compensation at issue in this case is discriminatory with respect to owners and drivers of vehicles registered in Member States other than Germany, since the Federal Republic of Germany has been unable to establish that that mechanism corresponds to the objective, declared by that Member State, of moving from a system of financing of infrastructure by means of taxation to a system of financing by all users, the consequence of the reduction in motor vehicle tax introduced by that Member State being, in fact, that the owners of vehicles registered in Germany obtain relief from the infrastructure use charge.70Third, the combination of the national measures at issue cannot in any event find any justification, even by analogy, in the Eurovignette Directive.71Suffice it to state, in that regard, that there is no provision of that directive which permits, in connection with the taxation of heavy good vehicles for the use of infrastructure, a mechanism for providing compensation for the infrastructure use charge such as that at issue in this case. Apart from the fact that Article 7k of that directive concerns only ‘appropriate compensation’, that compensation must, in any event, comply with EU law.72Further, nor can the supposed existence, in the context of the Eurovignette Directive, of templates for offsetting the motor vehicle tax in other Member States that resemble the template at issue in this case support the argument that the combination of the national measures at issue is compatible with Article 18 TFEU.73Third and last, it must be recalled that, according to settled case-law, indirect discrimination on grounds of nationality can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate objective of the national provisions (judgment of 4 October 2012, Commission v Austria, C‑75/11, EU:C:2012:605, paragraph 52 and the case-law cited).74In that context, the Federal Republic of Germany, in order to justify any indirect discrimination resulting from the combination of the national measures at issue, relies on considerations linked to the protection of the environment, the distribution of the burden between German users and foreign users in order to preserve the coherence of the national tax system, and the change in the system for financing infrastructure.75With respect to, first, environmental considerations, while, in accordance with the Court’s case-law, the protection of the environment constitutes a legitimate objective for the purposes of justifying a difference in treatment on ground of nationality (see, by analogy, with respect to the justification of restrictions on fundamental freedoms, judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 36 and the case-law cited), the Federal Republic of Germany fails however to establish in what way the introduction of an infrastructure use charge that affects, de facto, only the owners and drivers of vehicles registered in Member States other than Germany would be appropriate to the achievement of that objective.76As regards, second, the objective of moving from a system of financing infrastructure by means of taxation to a system of financing by users, even if that objective were capable of justifying a difference in treatment, it is clear from paragraphs 64 to 69 of the present judgment that the combination of the national measures at issue is not, however, appropriate to the attainment of that objective.77With respect to, last, the argument of the Federal Republic of Germany that it is necessary to ensure the coherence of the national tax system by means of an equitable distribution of the burden represented by the infrastructure use charge, that argument cannot be accepted. As stated in paragraph 69 of the present judgment, the effect of the combination of the national measures at issue is, de facto, to exempt from that charge the owners of vehicles registered in Germany and, therefore, to confine the burden represented by that charge solely to the owners and drivers of vehicles which are not registered in that Member State.78In the light of the foregoing, the first ground of complaint must be upheld and the Court must declare that the Federal Republic of Germany, by introducing the infrastructure use charge and by providing, simultaneously, for a relief from motor vehicle tax in an amount that is at least equivalent to the amount of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Article 18 TFEU. The second ground of complaint: infringement of Article 18 TFEU resulting from the structuring and application of the infrastructure use charge 79The Republic of Austria claims that the structuring of the infrastructure use charge is in itself discriminatory and, therefore, contrary to the first paragraph of Article 18 TFEU. In that regard, the Republic of Austria states that the InfrAG makes in a number of respects a distinction between vehicles registered in Germany and vehicles registered abroad.80In particular, the powers to intervene provided for in Paragraphs 11, 12 and 14 of the InfrAG, namely random inspections, the collection of a security and the prohibition on continuing the journey, and the recovery a posteriori of the infrastructure use charge to the amount of the annual vignette or the difference between the amount already paid and the amount of the annual vignette, under Article 12 of the InfrAG, are applicable only to vehicles registered abroad.81The vast majority of those affected by the imposition of fines in accordance with Paragraph 14 of the InfrAG are also, according to the Republic of Austria, the owners and drivers of vehicles registered in Member States other than Germany. The fact that the constitutive elements of certain offences, such as ‘incomplete payment of the charge’, can be imputed only to those owners and drivers supports that assertion.82The judgment of 19 March 2002, Commission v Italy (C‑224/00, EU:C:2002:185, paragraphs 16 to 19), confirms the existence of the difference in treatment that the Federal Republic of Germany has established.83The Republic of Austria recognises that the objective of ensuring payment of the infrastructure use charge payable by the owners and drivers of vehicles registered in Member States other than Germany could possibly justify the difference in treatment at issue, with respect to the powers to intervene and the imposition of fines. Such an objective could not, however, justify such a difference with respect to the recovery a posteriori of the infrastructure use charge, under Article 12 of the InfrAG. In relation to the latter, the Republic of Austria again refers to the judgment of 19 March 2002, Commission v Italy (C‑224/00, EU:C:2002:185, paragraph 26).84In any event, the specific arrangements for the payment of the infrastructure use charge are disproportionate.85As regards, in particular, the payment of a fine, the Republic of Austria states that, as the Court held in paragraph 43 of the judgment of 26 January 2006, Commission v Spain (C‑514/03, EU:C:2006:63), provided that there is the possibility of enforcing fines on the basis of the provisions of EU law or international treaties, the lodging of a security goes beyond what is necessary to ensure the payment of the fine. In that regard, the Republic of Austria refers to the treaty on judicial cooperation in administrative matters between the Republic of Austria and the Federal Republic of Germany.86The Federal Republic of Germany states that the rules relating to enforcement and monitoring of payment of the infrastructure use charge are applicable without distinction to the owners of vehicles registered in Germany and to the owners and drivers of vehicles registered in Member States other than Germany.87While it is true that the collection of a security, provided for in Paragraph 11(7) of the InfrAG, concerns only the owners and drivers of vehicles registered in Member States other than Germany, such a collection is justified since a foreign national who is liable to pay the infrastructure use charge is beyond the reach of both the administrative authority responsible for that charge and the administrative inspection authority, when he leaves German territory. Further, the collection of a security is not obligatory and its amount is not, moreover, disproportionate.88As regards the judgment of 26 January 2006, Commission v Spain (C‑514/03, EU:C:2006:63), referred to by the Republic of Austria, the Federal Republic of Germany states that, in that judgment, the Court did not hold in general that the requirement of a security is disproportionate in the light of the current state of development of cross-border cooperation in the area of justice, but rather insisted, on grounds of proportionality, that account should be taken of the constitution of a security already paid in the Member State of origin, which has not taken place in this case.89The Federal Republic of Germany contends that the recovery a posteriori of the infrastructure use charge to the amount of the annual vignette or the difference between the amount already paid and the amount of the annual vignette is intended to ensure that the charge payable will in fact be paid, and is proportionate with respect to that objective. In that context, the Federal Republic of Germany observes that the owners and drivers of vehicles registered in Member States other than Germany are not treated differently from the owners of vehicles registered in Germany who, in any event, must pay the price of an annual vignette.90Last, as regards the fine prescribed in the event of non-compliance with obligations concerning the infrastructure use charge, such a fine, in the view of the Federal Republic of Germany, is neither discriminatory nor disproportionate. In that regard, the Federal Republic of Germany states that the imposition of such a fine is not automatic and that it is subject to the principle that the adoption of excessive measures is prohibited.91It must be ascertained whether the provisions of the InfrAG relating to random inspections, the prohibition on continuing the journey using the vehicle concerned, the recovery a posteriori of the infrastructure use charge, the possible imposition of a fine and the payment of a security give rise to discrimination that is to the disadvantage of owners and drivers of vehicles registered in Member States other than Germany and, if so, whether that discrimination can be justified.92In that regard, as far as concerns, in the first place, the provisions of the InfrAG relating to random inspections, the prohibition on continuing the journey and the possible imposition of a fine in the event of an infringement of the obligation to pay the infrastructure use charge that is due, it must be stated, as the Advocate General observed in points 80 and 81 of his Opinion, that there is nothing in the documents submitted to the Court from which it can be concluded that those provisions are applicable solely to the owners and drivers of vehicles registered in Member States other than Germany.93On the contrary, it is clear from the wording of those provisions that both the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany are liable to be the subjects of random inspections, with a view to verifying that they have complied with the obligation to pay the infrastructure use charge that is due and, if not, liable to be prohibited from continuing their journey using the vehicle concerned and required to pay a fine, as the Federal Republic of Germany argued in its observations.94Moreover, the Republic of Austria has failed to establish that the provisions of the InfrAG in that respect, although drafted in neutral terms, place at a particular disadvantage the owners and drivers of vehicles registered in Member States other than Germany.95On the latter point, with respect to the provisions relating to the imposition of fines, it must be observed, first, that, contrary to what is claimed by the Republic of Austria, the circumstance that only owners and drivers of vehicles registered in Member States other than Germany can be found to satisfy the constituent elements of certain offences, such as incomplete payment of the charge or failure to provide correct information, does not support the assertion that those provisions principally affect those owners and drivers.96That circumstance is an inevitable consequence of the objective differences between the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany with respect to both the determination of the amount of the infrastructure use charge and its payment. In that regard, whereas the owners of vehicles registered in Germany are obliged to pay the charge in advance, in the form of an annual vignette purchased when the vehicles are registered, in an amount determined automatically by the competent authority, the owners and drivers of vehicles registered in Member States other than Germany have to pay that charge only when they use the German motorways, after the crossing of a border, in the form of a vignette of variable duration, as chosen by the user concerned, and in an amount determined according to the information supplied by the user himself.97Second, the Republic of Austria has provided no information as to the amount of the possible fines that might be imposed for offences that can be committed only by the owners and drivers of vehicles registered in Member States other than Germany, so that there is nothing in the documents submitted to the Court to permit a finding that such an amount is disproportionate in comparison with the seriousness of the offences.98As regards, in the second place, recovery a posteriori, provided for in Paragraph 12 of the InfrAG, of the unpaid infrastructure use charge, to the amount of the annual vignette, in the event of use of the German motorways without a valid vignette, or the difference between the amount already paid and the amount of the annual vignette, in the event of use of German motorways with a vignette the period of validity of which is too short, such a provision does not appear to be discriminatory, since the owners of vehicles registered in Germany must also pay the amount corresponding to the cost of an annual vignette.99Moreover, even if that provision were to establish a difference in treatment that places owners and drivers of vehicles registered in Member States other than Germany at a disadvantage, the difference would be justified by the objective of ensuring actual payment of the infrastructure use charge payable. Apart from the fact that such a provision ensures that that objective can be achieved, the obligation imposed on the owners and drivers of vehicles registered in Member States other than Germany to pay, in the event of an offence, the infrastructure use charge to the amount of the annual vignette or the difference between the amount of the annual vignette and the amount already paid does not appear disproportionate, taking into consideration the fact that the German authorities who find, in the course of a random inspection, that the obligation to purchase a vignette in order to use the German motorways has been infringed cannot in general know for how long the offender has driven on those roads without having the requisite vignette.100As regards, third, the possibility, provided for in Paragraph 11(7) of the InfrAG, that those authorities which find, in the course of a random inspection, that the obligation to pay the infrastructure use charge that is due has been infringed, may collect a sum of money by way of security in an amount equivalent to the fine imposed and the costs of the administrative procedure, it is true, as the Federal Republic of Germany confirmed in its observations, that that possibility is available only with respect to offenders using a vehicle registered in a Member State other than Germany. Consequently, that provision establishes a difference in treatment that places the latter at a disadvantage.101The Federal Republic of Germany argues however that such a difference is justified by the need to ensure payment of the fines imposed on offenders using a vehicle registered in a Member State other than Germany, taking account of the difficulty in recovering such debts when those offenders have left German territory.102In that regard, it must be recalled that the Court has previously held that the absence of any treaty instruments to secure the enforcement of a court decision in a Member State other than that in which it was delivered objectively justifies a difference in treatment between resident and non-resident offenders and that the obligation to pay a sum of money by way of security, imposed solely on non-resident offenders, is appropriate to prevent them from avoiding an effective penalty simply by declaring that they do not consent to the immediate collection of the fine (judgment of 19 March 2002, Commission v Italy, C‑224/00, EU:C:2002:185, paragraph 21).103Having regard to that case-law, it is clear that the objective of ensuring the payment of the fines imposed on offenders using a vehicle registered in a Member State other than Germany, pursued by the possibility of requiring them to provide a security, justifies the consequent difference in treatment that arises between those offenders and offenders using a vehicle registered in Germany.104The existence of a bilateral agreement on judicial and administrative cooperation between the Republic of Austria and the Federal Republic of Germany is of no significance in that regard, since, as the Advocate General stated in point 97 of his Opinion, the Federal Republic of Germany has not concluded similar agreements with all the other Member States.105Given that the possibility of requiring payment of a sum of money by way of security makes it possible to achieve the objective pursued, it remains to be determined whether such a requirement goes beyond what is necessary to attain that objective.106In that regard, it must be noted that, on the one hand, as is apparent from the wording of Paragraph 11(7) of the InfrAG, and as the Federal Republic of Germany has stated in its observations, in the event that, during a random inspection, the provisions of national law concerning the infrastructure use charge have been infringed, the German authorities may, but are not obliged to, require offenders using a vehicle registered in a Member State other than Germany and refusing to pay immediately the fine imposed to pay a sum as security in order to guarantee payment of that fine.107Since the payment of a sum as security is not required automatically of all offenders, it is reasonable to presume that the competent authorities will impose that requirement only when, having regard to the individual circumstances, there is a risk that the fine imposed may not be collected or may be collected only with great difficulty. In any event, the Republic of Austria has provided no reason to call into question that presumption.108On the other hand, it must be noted that the amount fixed for that sum as security is limited to the fine imposed and to the costs of the administrative procedure.109In those circumstances, it is not apparent that the difference in treatment resulting from the possibility of requiring offenders using a vehicle registered in a Member State other than Germany to pay a sum as security in order to ensure payment of the fine imposed is disproportionate to the objective pursued.110In the light of the foregoing, the second ground of complaint must be rejected. The third ground of complaint: infringement of Articles 34 and 56 TFEU 111The Republic of Austria argues that the national measures at issue are liable to have effects on cross-border supplies of goods made using passenger vehicles weighing up to 3.5 tonnes which are subject to the infrastructure use charge and on the supplies of services made by non-residents as well as supplies of services made to non-residents, and consequently those measures are in breach of the principles of the free movement of goods and the freedom to provide services.112Referring to its arguments developed in the context of the first and second grounds of complaint, the Republic of Austria claims that the national measures at issue are discriminatory and also constitute unlawful restrictions on the fundamental freedoms mentioned in the preceding paragraph.113The Federal Republic of Germany contends that the infrastructure use charge affects the sales distribution channel of products and constitutes, accordingly, a selling arrangement, within the meaning of the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), which does not fall within the scope of Article 34 TFEU, provided that it is not overtly or covertly discriminatory.114The relief from motor vehicle tax cannot, moreover, according to the Federal Republic of Germany, be characterised as ‘cross-border’ since it affects only national citizens and is therefore not a measure having equivalent effect to quantitative restrictions on imports.115In any event, the link between the introduction of an infrastructure use charge for passenger vehicles and any restrictions on access to the market of goods carried in those vehicles is, in accordance with the case-law of the Court, in particular the judgment of 13 October 1993, CMC Motorradcenter (C‑93/92, EU:C:1993:838), too uncertain and indirect to warrant the conclusion that there is a restriction on the free movement of goods, within the meaning of Article 34 TFEU.116In addition, the Federal Republic of Germany contends that nor does the infrastructure use charge impinge on the freedom to provide services, within the meaning of Article 56 TFEU. There is no actual restriction on the access to the German market of service providers and service recipients from other Member States of the Union, since the impact of the measures at issue on the cost of the services concerned is marginal.117The Federal Republic of Germany states that measures whose only effect is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State are not covered by Article 56 TFEU (judgment of 8 September 2005, Mobistar andBelgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31). In that regard, the Federal Republic of Germany states that service providers and service recipients from other Member States do not suffer, because of the introduction of the infrastructure use charge and the simultaneous relief from motor vehicle tax, any indirect discrimination in comparison with German providers and recipients of the same services.118Last, the Kingdom of Denmark states that Article 7k of the Eurovignette Directive necessarily presupposes that the introduction of user charges for heavy goods vehicles, with concomitant compensation for national transport undertakings liable to have an indirect effect on the free movement of goods and the freedom to provide services, is not in breach of Articles 34 and 56 TFEU. It would be fundamentally in breach of the principles underpinning Article 7k that any system of compensation of that kind could be established outside its area of application.– Whether there is a restriction on the free movement of goods 119It must be recalled that the free movement of goods between Member States is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect (judgment of 27 April 2017, Noria Distribution, C‑672/15, EU:C:2017:310, paragraph 17 and the case-law cited).120In accordance with settled case-law, the prohibition of measures having equivalent effect to quantitative restrictions on imports laid down in Article 34 TFEU covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Union trade (judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 26 and the case-law cited).121Further, a measure, even if it has neither the object nor the effect of treating goods coming from other Member States less favourably, also falls within the scope of the concept of a ‘measure having equivalent effect to quantitative restrictions’, within the meaning of Article 34 TFEU, if it hinders access to the market of a Member State of products originating in other Member States (judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 29 and the case-law cited).122Last, it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified on one of the grounds of public interest laid down in Article 36 TFEU or by imperative requirements. In either case, the provision of national law must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (judgments of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 53 and the case-law cited, and of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 110).123That case-law must guide the Court in determining whether the national measures at issue adversely affect the free movement of goods.124For the purposes of that determination, it must be recalled that, as was stated in paragraph 46 of the present judgment, the link between those measures justifies their being assessed jointly with regard to EU law and, consequently, Article 34 TFEU.125In that regard, it must, first, be stated that, even though the infrastructure use charge is not levied on goods carried as such, it is nonetheless capable of affecting goods that are delivered using passenger vehicles weighing up to 3.5 tonnes registered in a Member State other than Germany, on the crossing of the border, and it must therefore be examined, in combination with the relief from motor vehicle tax, in the light of the applicable provisions concerning the free movement of goods.126Second, the considerations mentioned in paragraphs 48 and 49 of the present judgment permit the finding that, although the infrastructure use charge is formally applicable both with respect to goods delivered using vehicles registered in Germany and with respect to goods delivered using vehicles registered in a Member State other than Germany, it turns out that, because of the relief from motor vehicle tax, applicable with respect to the former category of goods, that charge is capable of affecting, in fact, only the latter category of goods. Consequently, because of the combined application of the national measures at issue, the latter goods are treated less favourably than goods delivered using vehicles registered in Germany.127It follows from the foregoing that the national measures at issue are liable to restrict the access to the German market of goods from other Member States. The infrastructure use charge to which, in reality, only the vehicles that carry those goods are subject is liable to increase the costs of transport and, as a consequence, the price of those goods, thereby affecting their competitiveness.128The argument of the Federal Republic of Germany that the infrastructure use charge constitutes merely a selling arrangement, within the meaning of the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), cannot be accepted.129Since, as the Advocate General stated in point 118 of his Opinion, the concept of ‘selling arrangements’ covers only provisions of national law that regulate the manner in which goods may be marketed, rules concerning the manner in which goods may be transported are not within the scope of that concept.130Nor is it possible to accept the argument of the Federal Republic of Germany that any restrictive effects of the infrastructure use charge are too uncertain and indirect to infringe Article 34 TFEU, in accordance with the Court’s case-law, in particular the judgment of 13 October 1993, CMC Motorradcenter (C‑93/92, EU:C:1993:838).131In that regard, suffice it to state that, having regard to the consequences of the national measures at issue described in paragraph 127 of the present judgment, it cannot reasonably be maintained that the restrictive effects of those measures are too uncertain and indirect to infringe Article 34 TFEU.132In those circumstances, it must be concluded that the national measures at issue constitute a restriction on the free movement of goods, contrary to Article 34 TFEU, unless the restriction is objectively justified.133In that regard, the Federal Republic of Germany has not sought to rely on any ground capable of justifying such a restriction. In any event, the considerations relied on by that Member State, in response to the first ground of complaint, in order to justify the difference in treatment between the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany, cannot serve as appropriate justification for that restriction, for the same reasons as are stated in paragraphs 75 to 77 of the present judgment.134Consequently, the national measures at issue constitute a restriction on the free movement of goods, contrary to Article 34 TFEU.– Whether there is a restriction on the freedom to provide services 135It must be recalled that, in accordance with the Court’s case-law, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (judgment of 28 April 1998, Kohll, C‑158/96, EU:C:1998:171, paragraph 33 and the case-law cited).136National measures which prohibit, impede or render less attractive the exercise of the freedom to provide services are restrictions on that freedom (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 46 and the case-law cited).137On the other hand, measures the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State do not fall within the scope of Article 56 TFEU (judgment of 8 September 2005, Mobistar and Belgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31 and the case-law cited).138It must also be recalled that, in accordance with settled case-law, the freedom to provide services includes not only the active aspect of the freedom to provide services, where the service provider travels to the recipient of the services, but also the passive aspect of the freedom to provide services, that is, the freedom of the recipients of services to travel to another Member State where the service provider is located in order to receive the services there (see, to that effect, judgments of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 15, and of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 36 and the case-law cited).139Last, it follows from the Court’s case-law that a restriction on the freedom to provide services is warranted only if it pursues a legitimate objective compatible with the FEU Treaty and is justified by overriding reasons in the public interest; if that is the case, it must be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain that objective (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 52 and the case-law cited).140That case-law must guide the Court in determining whether the national measures at issue, assessed jointly, are in breach of the freedom to provide services.141In that regard, it is undisputed that the service providers who travel to Germany in order to supply their services there, using a vehicle weighing up to 3.5 tonnes registered in a Member State other than Germany, are subject to the infrastructure use charge, and that the majority of those service providers are established in a Member State other than Germany, whereas the majority of providers of services in Germany, who, in order to supply the service, travel using a vehicle registered in that Member State, are established in Germany.142Nor is it disputed that the recipients of services who, using a vehicle registered in a Member State other than Germany, travel into Germany in order to receive there the services concerned are subject to that charge and that the majority of those recipients come from a Member State other than Germany, whereas the recipients of services supplied in Germany, who, in order to receive those services, travel in a vehicle registered in Germany, normally come from that Member State.143Further, on the basis of the considerations mentioned in paragraphs 48 and 49 of the present judgment, it can be concluded that, because of the relief from motor vehicle tax to which service providers and service recipients established in Germany are entitled, the infrastructure use charge affects, in reality, only the service providers and service recipients coming from another Member State.144It follows from the foregoing that the national measures at issue are liable to restrict the access to the German market of service providers and service recipients from a Member State other than Germany. The infrastructure use charge is liable, because of the relief from motor vehicle tax that is part of the national measures at issue, either to increase the cost of services supplied in Germany by those service providers, or to increase the cost for those service recipients inherent in travelling into Germany in order to be supplied with a service there.145The Federal Republic of Germany cannot validly rely on the case-law cited in paragraph 117 of the present judgment in order to deny the existence of a restriction in this case.146That case-law is applicable only where the national measures at issue affect in the same way the provision of services between Member States and that within one Member State, which is not the position in this case.147In those circumstances, it must be concluded that the national measures at issue constitute a restriction on the freedom to provide services, contrary to Article 56 TFEU, unless the restriction is objectively justified.148In that regard, the Federal Republic of Germany has not sought to rely on any ground capable of justifying such a restriction. In any event, the considerations relied on by that Member State, in response to the first ground of complaint, in order to justify the difference in treatment between the owners of vehicles registered in Germany and the owners and drivers of vehicles registered in Member States other than Germany, cannot serve as appropriate justifications for that restriction, for the same reasons as are stated in paragraphs 75 to 77 of the present judgment.149Consequently, the national measures at issue constitute a restriction on the freedom to provide services, contrary to Article 56 TFEU.150In the light of the foregoing, the third ground of complaint must be upheld and it must be declared that the Federal Republic of Germany, by introducing the infrastructure use charge, and by providing, simultaneously, for relief from motor vehicle tax in an amount at least equivalent to that of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Articles 34 and 56 TFEU. The fourth ground of complaint: infringement of Article 92 TFEU 151The Republic of Austria claims that the German legislation infringes Article 92 TFEU, which prohibits any discrimination in the area of transport, which excludes any possibility of justification and the scope of which covers commercial bus transportation or the transportation of goods by passenger vehicles weighing up to 3.5 tonnes.152The Republic of Austria states that the prerequisite of Article 92 TFEU not being applicable is the adoption of provisions of secondary law. There are, however, no binding rules of secondary law with respect to passenger vehicles weighing up to 3.5 tonnes.153The Republic of Austria considers, consequently, that the legal principle which stems from paragraph 23 of the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), can be transposed to the present case.154The Federal Republic of Germany contends, in the first place, that the scope of Article 92 TFEU does not extend to the infrastructure use charge, even considered in combination with the relief from motor vehicle tax, since, having regard to the fact that the charge is limited to certain categories of vehicles, commercial transport is largely exempted from the obligation to pay the charge.155In the second place, contrary to the interpretation of Article 92 TFEU as a standstill clause, adopted by the Court in the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), the Federal Republic of Germany considers that the prohibition on altering existing rules laid down in Article 92 TFEU does not prescribe the protection of the status quo with respect to the competitive situation, but prohibits solely direct or indirect discrimination against foreign transport undertakings, a prohibition that has not been infringed in this case.156In the third place, even if Article 92 TFEU must be interpreted as being a guarantee of the status quo, the Federal Republic of Germany considers that that provision is no longer applicable since the Eurovignette Directive contains criteria with respect to national legislation which may also be applied to vehicles weighing up to 3.5 tonnes when road use charges are levied. In particular, Article 7(1) and Article 7k of that directive permit national measures such as those at issue in this case.157The Kingdom of Denmark states that the subject matter of the judgment of 19 May 1992, Commission v Germany (C‑195/90, EU:C:1992:219), on which the Republic of Austria relies, was exclusively and specifically the standstill clause now to be found in Article 92 TFEU, taking account of the state of the law preceding the adoption of the specific EU legislation on the imposition of charges on heavy good vehicles, now to be found in the Eurovignette Directive, a directive from which it is clear that the national measures at issue, established at the same time, are compatible with Article 92 TFEU.158According to Article 92 TFEU, until the provisions referred to in Article 91(1) TFEU have been laid down, no Member State may, unless the Council has unanimously adopted a measure granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, on the date of their accession, less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.159In this case, it is, first, undisputed that the transport activity subject to the infrastructure use charge can be carried out using vehicles weighing up to 3.5 tonnes. That being the case, the activity is commonly known as ‘light transport’.160Second, while the road transport sector is to a great extent covered by EU legislation, it remains the case that light transport is not the subject of any legislation at the EU law level. In particular, no legislation on charging for the use of roads by vehicles weighing up to 3.5 tonnes has been enacted, in accordance with Article 91 TFEU. It follows accordingly from Article 1 of the Eurovignette Directive, read together with Article 2(d) of that directive, that the harmonisation of the legislation of Member States effected by that directive concerns solely vehicles weighing more than 3.5 tonnes.161Last, taking account of the considerations set out in paragraphs 141 and 143 of the present judgment, it is clear that, because of the combination of the national measures at issue, only those carriers who use a vehicle weighing up to 3.5 tonnes registered in a Member State other than Germany (‘the foreign carriers’) are, in fact, affected by the infrastructure use charge, since carriers who use a vehicle weighing less than 3.5 tonnes registered in Germany (‘the German carriers’) are eligible for compensation for that charge.162It is therefore clear that, by offsetting in its entirety the new tax burden constituted by the infrastructure use charge, payable by all carriers, by means of a relief from motor vehicle tax in an amount at least equivalent to the charge paid, a relief to the benefit of the German carriers from which the foreign carriers are excluded, the effect of the national measures at issue is to alter, unfavourably, the situation of the foreign carriers in relation to that of the German carriers (see, to that effect, judgment of 19 May 1992, Commission v Germany, C‑195/90, EU:C:1992:219, paragraph 23).163The fourth ground of complaint must therefore be upheld and it must be declared that the Federal Republic of Germany, by introducing the infrastructure use charge and by providing, simultaneously, a relief from motor vehicle tax in an amount at least equivalent to that of the charge paid, to the benefit of the owners of vehicles registered in Germany, failed to fulfil its obligations under Article 92 TFEU.164It follows from all the foregoing that the Federal Republic of Germany, by introducing the infrastructure use charge for passenger vehicles and by providing, simultaneously, a relief from motor vehicle tax in an amount at least equivalent to the amount of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Articles 18, 34, 56 and 92 TFEU. Costs 165Under Article 138(1) of the Court’s Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(3) of those Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs unless, if it appears justified in the circumstances of the case, the Court orders that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.166In this case, both the Republic of Austria and the Federal Republic of Germany applied for costs against the other party. Further, the Federal Republic of Germany failed on the first, third and fourth grounds of complaint relied on by the Republic of Austria, and the latter failed in its second ground of complaint.167In the light of the foregoing, the Federal Republic of Germany must be ordered to pay three quarters of the costs incurred by the Republic of Austria and it must be decided that, for the remainder, each party is to bear its own costs.168In accordance with Article 140(1) of those Rules of Procedure, under which Member States which have intervened in the proceedings are to bear their own costs, the Kingdom of the Netherlands and Kingdom of Denmark shall bear their own costs.On those grounds, the Court (Grand Chamber) hereby: 1. Declares that the Federal Republic of Germany, by introducing the infrastructure use charge for passenger vehicles and by providing, simultaneously, a relief from motor vehicle tax in an amount at least equivalent to the amount of the charge paid, to the benefit of owners of vehicles registered in Germany, failed to fulfil its obligations under Articles 18, 34, 56 and 92 TFEU; 2. Dismisses the action as to the remainder; 3. Orders the Federal Republic of Germany to pay three quarters of the costs incurred by the Republic of Austria and to bear its own costs; 4. Orders the Republic of Austria to bear one quarter of its own costs; 5. Orders the Kingdom of the Netherlands and the Kingdom of Denmark to bear their own costs. [Signatures]( *1 ) Language of the case: German.( i ) The wording of paragraph 40 of this judgment has been amended since it was first put online. | 5cca4-6f14a41-441a | EN |
Advocate General Pitruzzella proposes that the Court find that undertakings are under an obligation to introduce a system for measuring the actual number of hours worked each day | 14 May 2019 ( *1 )(Reference for a preliminary ruling — Social policy — Protection of the safety and health of workers — Organisation of working time — Article 31(2) of the Charter of Fundamental Rights of the European Union — Directive 2003/88/EC — Articles 3 and 5 — Daily and weekly rest — Article 6 — Maximum weekly working time — Directive 89/391/EEC — Safety and health of workers at work — Requirement to set up a system enabling the duration of time worked each day by each worker to be measured)In Case C‑55/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Nacional (National High Court, Spain), made by decision of 19 January 2018, received at the Court on 29 January 2018, in the proceedings Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, intervener: Federación Estatal de Servicios de la Unión General de Trabajadores (FES-UGT), Confederación General del Trabajo (CGT), Confederación Solidaridad de Trabajadores Vascos (ELA), Confederación Intersindical Galega (CIG), THE COURT (Grand Chamber),composed of K. Lenaerts, President, J.-C. Bonichot, A. Arabadjiev, E. Regan (Rapporteur), T. von Danwitz, F. Biltgen, K. Jürimäe and C. Lycourgos, Presidents of Chambers, J. Malenovský, E. Levits, L. Bay Larsen, M. Safjan, D. Šváby, C. Vajda and P.G. Xuereb, Judges,Advocate General: G. Pitruzzella,Registrar: L. Carrasco Marco, administrator,having regard to the written procedure and further to the hearing on 12 November 2018,after considering the observations submitted on behalf of:–the Federación de Servicios de Comisiones Obreras (CCOO), by A. García López, abogado,Deutsche Bank SAE, by J.M. Aniés Escudé, abogado,the Federación Estatal de Servicios de la Unión General de Trabajadores (FES-UGT), by J.F. Pinilla Porlan and B. García Rodríguez, abogados,the Spanish Government, by S. Jiménez García, acting as Agent,the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,the United Kingdom Government, by Z. Lavery, acting as Agent, and by R. Hill, Barrister,the European Commission, by N. Ruiz García and M. van Beek, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 31 January 2019,gives the following Judgment 1This request for a preliminary ruling concerns the interpretation of Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 3, 5, 6, 16 and 22 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) and Article 4(1), Article 11(3), and Article 16(3) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).2The request has been made in proceedings between the Federación de Servicios de Comisiones Obreras (CCOO) and Deutsche Bank SAE concerning the lack of a system for recording the time worked each day by the workers employed by the latter. Legal context European Union law Directive 89/391 3Article 4(1) of Directive 89/391 provides:‘Member States shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive.’4Article 6(1) of that directive provides:‘Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means.… ’5Article 11(3) of the directive provides:‘Workers’ representatives with specific responsibility for the safety and health of workers shall have the right to ask the employer to take appropriate measures and to submit proposals to him to that end to mitigate hazards for workers and/or to remove sources of danger.’6Article 16(3) of the same directive provides:‘The provisions of this Directive shall apply in full to all the areas covered by the individual Directives, without prejudice to more stringent and/or specific provisions contained in these individual Directives.’ Directive 2003/88 7Recitals 3 and 4 of Directive 2003/88 state:‘(3)The provisions of [Directive 89/391] remain fully applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provisions contained herein.(4)The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.’8Article 1 of Directive 2003/88, headed ‘Purpose and scope’, provides:‘…2. This Directive applies to:(a)minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and(b)certain aspects of night work, shift work and patterns of work.…4. The provisions of [Directive 89/391] are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.’9Article 3 of that directive, entitled ‘Daily rest’, provides:‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’10Article 5 of that directive, entitled ‘Weekly rest period’, provides:‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied.’11Article 6 of Directive 2003/88, entitled ‘Maximum weekly working time’, provides:‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;the average working time for each seven-day period, including overtime, does not exceed 48 hours.’12Article 16 of Directive 2003/88 specifies the maximum periods of reference for the application of Articles 5 and 6 thereof.13Article 17 of that directive, under the heading ‘Derogations’, provides in paragraph 1 thereof as follows:‘With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:managing executives or other persons with autonomous decision-taking powers;family workers; or(c)workers officiating at religious ceremonies in churches and religious communities. ’14Article 19 of Directive 2003/88 concerns the limitations to the derogations from reference periods laid down in that directive.15Under Article 22(1) of that directive:‘A Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker’s agreement to perform such work;the employer keeps up-to-date records of all workers who carry out such work;(d)the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours; Spanish law 16The Estatuto de los Trabajadores (Workers’ Statute), in the version following Real Decreto Legislativo 2/2015 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015 approving the consolidated text of the Workers’ Statute) of 23 October 2015 (BOE No 255, of 24 October 2015, p. 100224) (‘the Workers’ Statute’) provides in Article 34, entitled ‘Working time’:‘1. The duration of working time shall be as specified in collective agreements or employment contracts.Normal working time shall average no more than 40 hours per week of actual work, calculated on an annual basis.3. There must be at least 12 hours between the end of one period of work and the beginning of the following period of work.The number of normal hours of actual work shall not exceed nine hours per day unless a different pattern of daily working time applies by virtue of a collective agreement or, failing that, by agreement between the employer and the representatives of the workers, subject in all cases to compliance with the rest period between two periods of work.…’17Article 35 of the Workers’ Statute, entitled ‘Overtime’, provides:‘1. Hours worked in excess of the maximum normal working time fixed in accordance with the preceding article shall constitute overtime. …2. Overtime shall not exceed 80 hours per annum …4. Overtime shall be voluntary, unless that work was agreed in a collective agreement or in an individual contract of work, within the limitations laid down in paragraph 2.5. For the purpose of calculating overtime, every worker’s working time shall be recorded on a daily basis and the total calculated at the time fixed for payment of remuneration. Workers shall be given a copy of the summary with the corresponding payslip.’18Real Decreto 1561/1995 sobre jornadas especiales de trabajo (Royal Decree 1561/1995 on special working time) of 21 September 1995 (BOE No 230, of 26 September 1995, p. 28606), provides in its third supplementary provision, entitled ‘Powers of workers’ representatives in connection with working time’:‘Without prejudice to the powers of workers’ representatives in connection with working time under the Workers’ Statute and this Royal Decree, those representatives shall have the right:to be informed each month by the employer of any overtime worked by the workers, irrespective of the form of compensation adopted. To that end, they shall receive a copy of the summary referred to in Article 35(5) of the Workers’ Statute.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 19On 26 July 2017, CCOO, a workers’ union which is part of a trade union organisation represented at national level in Spain, brought a group action before the Audiencia Nacional (National High Court, Spain) against Deutsche Bank, seeking a judgment declaring the bank to be under an obligation, under Article 35(5) of the Workers’ statute and the third supplementary provision of Royal Decree 1561/1995, to set up a system for recording the time worked each day by its members of staff, in order to make it possible to verify compliance with, first, the working times stipulated and, second, the obligation to provide union representatives with information on overtime worked each month.20According to CCOO, the obligation to set up such a recording system is derived from Articles 34 and 35 of the Workers’ Statute, as interpreted in the light of Article 31(2) of the Charter, Articles 3, 5, 6, and 22 of Directive 2003/88, as well as the Hours of Work (Industry) Convention (No 1) and the Hours of Work (Commerce and Offices) Convention (No 30), adopted by the International Labour Organisation in Washington on 28 November 1919, and Geneva on 28 June 1930, respectively.21Deutsche Bank submits, on the other hand, that it follows from judgments No 246/2017 of 23 March 2017 (REC 81/2016) and No 338/2017 of 20 April 2017 (REC 116/2016) of the Tribunal Supremo (Supreme Court, Spain) that Spanish law does not lay down such an obligation of general application.22The Audiencia Nacional (National High Court) observes that despite numerous rules on working time, flowing from a wide range of national sectoral collective conventions and company collective agreements, which apply to Deutsche Bank, the latter has not set up within its organisation any system for recording the time worked by its staff members that enables the verification of observance of the working hours agreed and calculation of overtime hours that may be worked. In particular, Deutsche Bank uses a computer application (absences calendar) which enables exclusively whole day absences to be recorded, such as holidays or other leave, without however measuring the duration of time worked by each worker or the number of overtime hours worked.23The Audiencia Nacional (National High Court) also observes that Deutsche Bank has not complied with the request by the Inspección de Trabajo y Seguridad Social de las provincias de Madrid y Navarra (Employment and Social Security Inspectorate for the Madrid and Navarre provinces, Spain) to set up a system of recording time worked each day and that the inspectorate subsequently drew up a notice of infringement containing a proposal to impose a penalty. That proposal for a penalty was however rejected following the judgment of the Tribunal Supremo (Supreme Court) of 23 March 2017, cited in paragraph 21 above.24The Audiencia Nacional (National High Court) states that it is clear from the case-law of the Tribunal Supremo (Supreme Court), cited in paragraph 21 above, that Article 35(5) of the Workers’ Statute merely requires, except where there is an agreement to the contrary, that a record be kept of overtime hours worked by workers and the communication, at the end of each month, to workers and their representatives of the number of hours of overtime thus worked.25According to the Audiencia Nacional (National High Court), that case-law rests on the following considerations. First, the obligation to keep a record is laid down in Article 35 of the Workers’ Statute, which concerns overtime hours, and not Article 34 of that Statute which concerns ‘normal’ working time, defined as working time which does not exceed maximum working time. Second, on all occasions when the Spanish legislature wished to require time worked to be recorded, it provided for that specifically, as in the case of part-time workers and mobile workers working in the merchant navy or rail transport. Third, Article 22 of Directive 2003/88, like Spanish law, lays down the obligation to maintain a record of time worked in particular cases, but not an obligation to maintain a record of ‘normal’ working time. Fourth, establishing a record of time worked by each worker would involve processing personal data with the risk of an unjustified interference in the private lives of workers. Fifth, the failure to keep such a record cannot be regarded as a clear and manifest infringement under the national law concerning infringements and penalties in social matters. Sixth, the case-law of the Tribunal Supremo (Supreme Court) does not prejudice workers’ rights since Article 217(6) of Ley de Enjuiciamiento Civil 1/2000 (Civil Procedure Law 1/2000), of 7 January 2000, (BOE No 7, of 8 January 2000, p. 575), while not allowing it to be presumed that hours of overtime were worked in the absence of a record of ‘normal’ time worked, is nevertheless unfavourable to an employer that has not kept such a record where the worker proves by other means that he or she has worked overtime hours.26The Audiencia Nacional (National High Court) has doubts as to whether the interpretation of Article 35(5) of the Workers’ Statute adopted by the Tribunal Supremo (Supreme Court) is consistent with EU law. The referring court observes, first of all, that a 2016 survey of the work force in Spain revealed that 53.7% of overtime worked had not been recorded. In addition, it was clear from two reports by the Dirección General de Empleo del ministerio de Empleo y Seguridad Social (Directorate-General for Employment of the Spanish Ministry of Employment and Social Security) of 31 July 2014 and 1 March 2016, that it was necessary, in order to determine whether overtime was worked, to know precisely the number of normal hours worked. That explains why the employment inspectorate asked Deutsche Bank to establish systems for recording time worked by each worker, since such a system was regarded as the only means of verifying whether the maximum limits laid down were exceeded in the course of a reference period. The interpretation of Spanish law by the Tribunal Supremo (Supreme Court) would in practice, first, deprive workers of a source of evidence essential for demonstrating that they have worked in excess of maximum working time limits and, second, deprive their representatives of the necessary means for verifying whether the applicable rules on the matter were complied with, such that the monitoring of compliance with working times and rest periods depended upon the employer’s good will.27According to the referring court, in such a situation, Spanish national law is not capable of ensuring effective compliance with the obligations laid down by Directive 2003/88 as regards minimum rest periods and maximum weekly working time, nor, as regards the rights of workers’ representatives, the obligations flowing from Directive 89/391.28In those circumstances, the Audiencia Nacional (National High Court, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)Must it be understood that by Articles 34 and 35 of the Workers’ Statute, as they have been interpreted by [Spanish] case-law, the Kingdom of Spain has taken the measures necessary to ensure the effectiveness of the limits to working time and of the weekly and daily rest periods established by Articles 3, 5 and 6 of [Directive 2003/88] for full-time workers who have not expressly agreed, whether individually or collectively, to work overtime and who are not mobile workers or persons working in the merchant navy or railway transport?(2)Must Article 31(2) of [the Charter] and Articles 3, 5, 6, 16 and 22 of [Directive 2003/88], read in conjunction with Articles 4(1), 11(3) and 16(3) of [Directive 89/391], be interpreted as precluding internal national legislation such as Articles 34 and 35 of the Workers’ Statute from which, as settled [Spanish] case-law has determined, it cannot be inferred that employers must set up a system for recording actual daily working time [worked] by full-time workers who have not expressly agreed, whether individually or collectively, to work overtime and who are not mobile workers or persons working in the merchant navy or railway transport?(3)Must the mandatory requirement laid down in Article 31(2) of [the Charter] and Articles 3, 5, 6, 16 and 22 of [Directive 2003/88], read in conjunction with Articles 4(1), 11(3) and 16(3) of [Directive 89/391] for the Member States to limit the working time of all workers generally, be understood to be satisfied for ordinary workers by the internal national legislation, contained in Articles 34 and 35 of the Workers’ Statute from which, as settled [Spanish] case-law has determined, it cannot be inferred that employers are required to set up a system for recording actual daily working time for full-time workers who have not expressly agreed, whether individually or collectively, to work overtime, unlike mobile workers or persons working in the merchant navy or railway transport?’ Consideration of the questions referred 29By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 3, 5, 6, 16 and 22 of Directive 2003/88, read in conjunction with Article 4(1), Article 11(3) and Article 16(3) of Directive 89/391 and Article 31(2) of the Charter, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it by national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.30As a preliminary matter, it must be recalled that the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods not only constitutes a rule of EU social law of particular importance, but is also expressly enshrined in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties (see, to that effect, the judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 100, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 20).31The provisions of Directive 2003/88, in particular Articles 3, 5 and 6, give specific form to that fundamental right and must, therefore, be interpreted in the light of the latter (see, to that effect, the judgments of 11 September 2014, A, C‑112/13, EU:C:2014:2195, paragraph 51 and the case-law cited, and of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 85).32In particular, in order to ensure respect for that fundamental right, the provisions of Directive 2003/88 may not be interpreted restrictively at the expense of the rights that workers derive from it (see, by analogy, judgment of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 38 and the case-law cited).33In those circumstances, it is necessary, for the purpose of answering the questions referred, to interpret the latter directive having regard to the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods.34In that regard it must be noted, first of all, that the referring court’s second and third questions refer, inter alia, to Article 22 of Directive 2003/88, paragraph 1 of which provides that if Member States have recourse to the option of not applying Article 6 concerning maximum weekly working time, they must, inter alia, ensure, by taking the measures necessary for that purpose, that the employer keeps up-to-date records of all the workers concerned and that those records are placed at the disposal of the competent authorities.35However, as became clear from the oral exchanges at the hearing, the Kingdom of Spain has not availed itself of that option. Therefore, Article 22 of Directive 2003/88 is not applicable in the case in the main proceedings and, consequently, it is not necessary to interpret that provision in the present case.36Having made that clarification, it is necessary to recall that the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time (see, inter alia, the judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 37; of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 23; and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 39).37That harmonisation at European Union level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods — particularly daily and weekly — as well as adequate breaks, and by providing for a ceiling on the duration of the working week (see, inter alia, the judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 76; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 43; and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 23).38Thus, the Member States are required, under Articles 3 and 5 of Directive 2003/88, to take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period and, during each 7-day period, to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3 (judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 37).39Furthermore, Article 6(b) of Directive 2003/88 requires the Member States to fix a 48-hour limit for average weekly working time, a maximum which is expressly stated to include overtime, and from which, otherwise than in a situation, which is not relevant in the present case, covered by Article 22(1) of the directive, no derogation whatsoever may be made in any case, even with the consent of the worker concerned (see, to that effect, judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 33 and the case-law cited).40In order to ensure that Directive 2003/88 is fully effective, the Member States must ensure that those minimum rest periods are observed and prevent the maximum weekly working time laid down in Article 6(b) of Directive 2003/88 from being exceeded (judgment of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 51 and the case-law cited).41It is true that Articles 3, 5 and 6(b) of Directive 2003/88 do not establish the specific arrangements by which the Member States must ensure the implementation of the rights that they lay down. As is clear from their wording, those provisions leave the Member States to adopt those arrangements, by taking the ‘measures necessary’ to that effect (see, to that effect, judgment of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 55).42While Member States thus enjoy a discretion for that purpose, it remains the case that, having regard to the essential objective pursued by Directive 2003/88, which is to ensure the effective protection of the living and working conditions of workers and better protection of their safety and health, they are required to ensure that the effectiveness of those rights is guaranteed in full, by ensuring that workers actually benefit from the minimum daily and weekly rest periods and the limitation on the duration of average weekly working time laid down in that directive (see, to that effect, judgments of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 53; of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraphs 39 and 40; and of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 64).43It follows that the arrangements made by the Member States to implement the requirements of Directive 2003/88 must not be liable to render the rights enshrined in Article 31(2) of the Charter and Articles 3, 5 and 6(b) of that directive meaningless (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 44).44In that regard, it must be recalled that the worker must be regarded as the weaker party in the employment relationship and that it is therefore necessary to prevent the employer from being in a position to impose a restriction of his rights on him (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 82; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 80; and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 41).45Similarly, it must be observed that, on account of that position of weakness, a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where, in particular, doing so may expose him to measures taken by the employer likely to affect the employment relationship in a manner detrimental to that worker (see, to that effect, judgments of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 81, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 41).46Whether, and to what extent, it is necessary to set up a system enabling the duration of time worked each day by each worker to be measured in order to ensure effective compliance with maximum weekly working time and minimum daily and weekly rest periods must be examined in the light of those general considerations.47In that regard, it must be observed, as the Advocate General notes in points 57 and 58 of his Opinion, that in the absence of such a system, it is not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime.48In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter and by Directive 2003/88, with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.49The objective and reliable determination of the number of hours worked each day and each week is essential in order to establish, first, whether the maximum weekly working time defined in Article 6 of Directive 2003/88, including, in accordance with that provision, overtime, was complied with during the reference period set out in Article 16(b) or Article 19 of that directive and, second, whether the minimum daily and weekly rest periods, defined in Articles 3 and 5 of that directive respectively, were complied with in the course of each 24-hour period, as regards the daily rest period, or in the course of the reference period referred to in Article 16(a) of the same directive, as regards the weekly rest period.50Having regard to the fact that, as is clear from the case-law cited in paragraphs 40 and 41 above, the Member States must take all the measures necessary to ensure that minimum rest periods are observed and to prevent maximum weekly working time being exceeded so as to guarantee the full effectiveness of Directive 2003/88, a national law which does not provide for an obligation to have recourse to an instrument that enables the objective and reliable determination of the number of hours worked each day and each week is not capable of guaranteeing, in accordance with the case-law recalled in paragraph 42 above, the effectiveness of the rights conferred by Article 31(2) of the Charter and by this directive, since it deprives both employers and workers of the possibility of verifying whether those rights are complied with and is therefore liable to compromise the objective of that directive, which is to ensure better protection of the safety and health of workers.51In that regard it is irrelevant that the maximum weekly working time laid down in the present case by Spanish law may, as the Spanish Government submits, be more favourable to the worker than that provided for in Article 6(b) of Directive 2003/88. It remains the case, as that government itself moreover submitted, that the national provisions adopted in the matter contribute to the transposition into national law of the directive, with which Member States must ensure compliance by adopting the requisite arrangements to that end. In the absence of a system enabling the duration of time worked each day to be measured it remains equally difficult, if not impossible in practice, for a worker to ensure effective compliance with a maximum duration of weekly working time, irrespective of what that maximum duration may be.52That difficulty is by no means mitigated by the requirement for employers in Spain to set up, under Article 35 of the Workers’ Statute, a system for recording the overtime hours worked by workers who have given their consent in that respect. The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances. In any event, that requirement is not capable of compensating for the lack of a system which, as regards workers who have not consented to work overtime hours, could guarantee actual compliance with rules concerning, inter alia, maximum weekly working time.53It is true, in the present case, that it is clear from the case file before the Court that, as Deutsche Bank and the Spanish Government contend, where there is no system enabling working time to be measured, a worker may, under Spanish procedural rules, rely on other sources of evidence, such as, inter alia, witness statements, the production of emails or the consultation of mobile telephones or computers, in order to provide indications of a breach of those rights and thus bring about a reversal of the burden of proof.54However, unlike a system that measures time worked each day, such sources of evidence do not enable the number of hours the worker worked each day and each week to be objectively and reliably established.55In particular, it must be emphasised that, taking into account the worker’s position of weakness in the employment relationship, witness evidence cannot be regarded, in itself, as an effective source of evidence capable of guaranteeing actual compliance with the rights at issue, since workers are liable to prove reluctant to give evidence against their employer owing to a fear of measures being taken by the latter which might affect the employment relationship to their detriment.56By contrast, a system enabling the time worked by workers each day to be measured offers those workers a particularly effective means of easily accessing objective and reliable data as regards the duration of time actually worked by them and is thus capable of facilitating both the proof by those workers of a breach of the rights conferred on them by Articles 3 and 5 and 6(b) of Directive 2003/88, which give specific form to the fundamental right enshrined in Article 31(2) of the Charter, and also the verification by the competent authorities and national courts of the actual observance of those rights.57Nor can it be held that the difficulties resulting from there being no system enabling the duration of time worked each day by each worker to be measured may be surmounted through the powers to investigate and impose penalties conferred by national law on supervisory bodies, such as the employment inspectorate. Indeed, in the absence of such a system, those authorities are themselves deprived of an effective means of obtaining access to objective and reliable data as to the duration of time worked by the workers in each undertaking, which may prove necessary in order to exercise their supervisory function and, where appropriate, impose a penalty (see, to that effect, the judgment of 30 May 2013, Worten, C‑342/12, EU:C:2013:355, paragraph 37 and the case-law cited).58It follows that in the absence of a system enabling the time worked each day by each worker to be measured there is nothing to ensure, as is clear moreover from the elements provided by the referring court referred to in paragraph 26 above, that actual compliance with the right to a limitation on maximum working time and minimum rest periods conferred by Directive 2003/88 is fully guaranteed to workers, since that compliance is left to the discretion of the employer.59While it is true that the employer’s responsibility for observance of the rights conferred by Directive 2003/88 cannot be without limits, it remains the case that the law of a Member State that, according to the interpretation given to it by national case-law, does not require the employer to measure the duration of time worked, is liable to render the rights enshrined in Articles 3, 5 and 6(b) of that directive meaningless by failing to ensure, for workers, actual compliance with the right to a limitation on maximum working time and minimum rest periods, and is therefore incompatible with the objective of that directive, in which those minimum requirements are considered to be essential for the protection of workers’ health and safety (see, by analogy, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 43 and 44).60Consequently, in order to ensure the effectiveness of those rights provided for in Directive 2003/88 and of the fundamental right enshrined in Article 31(2) of the Charter, the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.61That conclusion is corroborated by the provisions of Directive 89/391. As is clear from Article 1(2) and (4) and recital 3 of Directive 2003/88 and Article 16(3) of Directive 89/391, the latter directive is fully applicable to matters of minimum daily and weekly rest periods and maximum weekly working time, without prejudice to more stringent and/or specific provisions contained in Directive 2003/88.62In that regard, the introduction of an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured falls within the general obligation, for Member States and employers, laid down in Article 4(1) and Article 6(1) of Directive 89/391, to provide the organisation and means necessary for the protection of the safety and health of workers. Moreover, such a system is necessary in order to enable worker representatives, who have a specific responsibility in respect of the protection of the safety and health of workers, to exercise their right, laid down in Article 11(3) of that directive, to ask the employer to take appropriate measures and to submit proposals to it.63Nevertheless, in accordance with the case-law recalled in paragraph 41 above, it is for the Member States, in the exercise of their discretion in that regard, to determine, as the Advocate General has stated in points 85 to 88 of his Opinion, the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size, and without prejudice to Article 17(1) of Directive 2003/88, which permits Member States, while having due regard for the general principles of the protection of the safety and health of workers, to derogate, inter alia, from Articles 3 to 6 of that directive, when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves.64The foregoing considerations are not undermined by the fact that certain specific provisions of EU law relating to the transport sector, such as, inter alia, Article 9(b) of Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35) and paragraph 12 of the Annex to Council Directive 2014/112/EU of 19 December 2014 implementing the European Agreement concerning certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers’ Federation (ETF) (OJ 2014 L 367, p. 86), expressly lay down a requirement to record the working time of workers covered by those provisions.65While the need for particular protection was able to lead the EU legislature to provide explicitly for such an obligation as regards defined categories of workers, a similar obligation, consisting of setting up an objective, reliable and accessible system enabling the duration of time worked each day to be measured, is necessary more generally for all workers in order to ensure the effectiveness of Directive 2003/88 and to take account of the importance of the fundamental right enshrined in Article 31(2) of the Charter, set out in paragraph 30 above.66In addition, as regards the costs, emphasised by the Spanish and United Kingdom Governments, that setting up such a system may involve for employers, it should be recalled that, as is clear from recital 4 of Directive 2003/88, the effective protection of the safety and health of workers should not be subordinated to purely economic considerations (see, to that effect, judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 59, and of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraphs 66 and 67).67Moreover, as the Advocate General observed in point 84 of his Opinion, neither Deutsche Bank nor the Spanish Government identified clearly or specifically the practical obstacles that might prevent employers from setting up, at a reasonable cost, a system enabling the time worked each day by each worker to be measured.68Finally, it must be recalled that, according to settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty, under Article 4(3) TEU, to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 30, and of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph 49).69It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of national law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, to comply with the third paragraph of Article 288 TFEU (judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 31 and the case-law cited).70The requirement to interpret national law in a manner that is consistent with EU law includes the obligation for national courts to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 33; of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 72; and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 64).71In the light of the foregoing, the answer to the questions referred is that Articles 3, 5 and 6 of Directive 2003/88, read in the light of Article 31(2) of the Charter, and Article 4(1), Article 11(3) and Article 16(3) of Directive 89/391, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured. Costs 72Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (Grand Chamber) hereby rules: Articles 3, 5 and 6 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, read in the light of Article 31(2) of the Charter of Fundamental Rights of the European Union, and Article 4(1), Article 11(3) and Article 16(3) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured. [Signatures]( *1 ) Language of the case: Spanish. | 98b79-4eb84b1-41d0 | EN |
The prohibition in stages at EU level of cigarettes and roll-your-own tobacco containing flavourings is valid | 30 January 2019 ( *1 )‛Reference for a preliminary ruling — Approximation of laws — Validity of Directive 2014/40/EU — Manufacture, presentation and sale of tobacco products — Regulation of ‘ingredients’ — Prohibition of flavoured tobacco products’In Case C‑220/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany), made by decision of 21 April 2017, received at the Court on 27 April 2017, in the proceedings Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v Land Berlin, THE COURT (First Chamber),composed of R. Silva de Lapuerta, Vice-President of the Court, acting as President of the First Chamber, A. Arabadjiev, E. Regan, C.G. Fernlund and S. Rodin (Rapporteur), Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: R. Şereş, administrator,having regard to the written procedure and further to the hearing on 21 March 2018,after considering the observations submitted on behalf of:—Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG, by T. Masing and C. Eckart, Rechtsanwälte,the Spanish Government, by S. Jiménez García, acting as Agent,the French Government, by R. Coesme and D. Colas, acting as Agents,the Hungarian Government, by G. Koós and Z. Fehér, acting as Agents,the United Kingdom Government, by S. Brandon, I. Rogers and Z. Lavery, acting as Agents,the Norwegian Government, by P. Wennerås, M. Schei and M. Reinertsen Norum, acting as Agents,the European Parliament, by L. Visaggio, U. Rösslein and J. Rodrigues, acting as Agents,the Council of the European Union, by P. Plaza García, E. Karlsson and R. Wiemann, acting as Agents,the European Commission, by M. Kellerbauer and J. Tomkin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 July 2018,gives the following Judgment 1This request for a preliminary ruling concerns the validity of Article 7(1), (7) and (14), Articles 8 to 11, in particular the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f), the first sentence of the first subparagraph of Article 11(1) and Article 13(1)(c), and the interpretation of Article 7(14) and Article 13(1)(c) and (3) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1, and corrigendum OJ 2015 L 150, p. 24).2The request has been made in proceedings between Planta Tabak-Manufaktur Dr. Manfred Obermann Gmbh & Co. KG (‘Planta Tabak’) and Land Berlin (the Land of Berlin, Germany) concerning the prohibition of placing certain tobacco products on the market and the rules on the labelling and packaging of tobacco products. Legal context 3According to recital 9 of Directive 2014/40:‘It is necessary to establish a number of new definitions in order to ensure that this Directive is uniformly applied by Member States. Where different obligations imposed by this Directive apply to different product categories and the relevant product falls into more than one of those categories (e.g. pipe, roll-your-own tobacco), the stricter obligations should apply.’4Recital 16 of that directive states:‘The likelihood of diverging regulation is further increased by concerns over tobacco products having a characterising flavour other than one of tobacco, which could facilitate initiation of tobacco consumption or affect consumption patterns. Measures introducing unjustified differences of treatment between different types of flavoured cigarettes should be avoided. However, products with characterising flavour with a higher sales volume should be phased out over an extended time period to allow consumers adequate time to switch to other products.’5Article 1 of the directive provides:‘The objective of this Directive is to approximate the laws, regulations and administrative provisions of the Member States ……in order to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people, and to meet the obligations of the Union under the [World Health Organisation (WHO)] Framework Convention for Tobacco Control (“FCTC”) [approved by Council Decision 2004/513/EC of 2 June 2004 concerning the conclusion of the WHO Framework Convention on Tobacco Control (OJ 2004 L 213, p. 8)].’6Article 2 of the directive provides:‘For the purposes of this Directive, the following definitions shall apply:(14)“novel tobacco product” means a tobacco product which:(a)does not fall into any of the following categories: cigarettes, roll-your-own tobacco, pipe tobacco, waterpipe tobacco, cigars, cigarillos, chewing tobacco, nasal tobacco or tobacco for oral use; ……’7Article 7 of the directive provides:‘1. Member States shall prohibit the placing on the market of tobacco products with a characterising flavour.7. Member States shall prohibit the placing on the market of tobacco products containing flavourings in any of their components such as filters, papers, packages, capsules or any technical features allowing modification of the smell or taste of the tobacco products concerned or their smoke intensity. Filters, papers and capsules shall not contain tobacco or nicotine.12. Tobacco products other than cigarettes and roll-your-own tobacco shall be exempted from the prohibitions laid down in paragraphs 1 and 7. …14. In the case of tobacco products with a characterising flavour whose Union-wide sales volumes represent 3% or more in a particular product category, the provisions of this Article shall apply from 20 May 2020.8Articles 8 to 11 of the directive, which form part of Chapter II, ‘Labelling and packaging’, of Title II of the directive, contain respectively general provisions, provisions on general warnings and information messages on tobacco products for smoking, provisions on combined health warnings for tobacco products for smoking, and provisions on the labelling of tobacco products for smoking other than cigarettes, roll-your-own tobacco and waterpipe tobacco.9In accordance with Article 9 of the directive:‘1. Each unit packet and any outside packaging of tobacco products for smoking shall carry one of the following general warnings:“Smoking kills — quit now”or“Smoking kills”.Member States shall determine which of the general warnings referred to in the first subparagraph is to be used.4. The general warning and information message referred to in paragraphs 1 and 2 shall be:printed in black Helvetica bold type on a white background. In order to accommodate language requirements. Member States may determine the font size, provided that the font size specified in national law ensures that the relevant text occupies the greatest possible proportion of the surface reserved for these health warnings; …6. The Commission shall, by means of implementing acts, determine the precise position of the general warning and the information message on roll-your-own tobacco marketed in pouches, taking into account the different shapes of pouches.’10Article 10 of the directive provides:‘1. Each unit packet and any outside packaging of tobacco products for smoking shall carry combined health warnings. The combined health warnings shall:(b)include smoking cessation information such as telephone numbers, email addresses or internet sites intending to inform consumers about the programmes that are available to support persons who want to stop smoking;(e)appear at the top edge of a unit packet and any outside packaging, and be positioned in the same direction as any other information appearing on that surface of the packaging. Transitional exemptions from that obligation on the position of the combined health warning may apply in Member States where tax stamps or national identification marks used for fiscal purposes remain mandatory, as follows:(i)in those cases, where the tax stamp or national identification mark used for fiscal purposes is affixed at the top edge of a unit packet made of carton material, the combined health warning that is to appear on the back surface may be positioned directly below the tax stamp or national identification mark;(ii)where a unit packet is made of soft material, Member States may allow for a rectangular area to be reserved for the tax stamp or national identification mark used for fiscal purposes of a height not exceeding 13 mm between the top edge of the packet and the top end of the combined health warnings.The exemptions referred to in points (i) and (ii) shall apply for a period of three years from 20 May 2016. Brand names or logos shall not be positioned above the health warnings;(f)be reproduced in accordance with the format, layout, design and proportions specified by the Commission pursuant to paragraph 4;11The first sentence of the first subparagraph of Article 11(1) of the directive provides:‘Member States may exempt tobacco products for smoking other than cigarettes, roll-your-own tobacco and waterpipe tobacco from the obligations to carry the information message laid down in Article 9(2) and the combined health warnings laid down in Article 10.’12Article 13 of the directive provides:‘1. The labelling of unit packets and any outside packaging and the tobacco product itself shall not include any element or feature that:(c)refers to taste, smell, any flavourings or other additives or the absence thereof;3. The elements and features that are prohibited pursuant to paragraphs 1 and 2 may include but are not limited to texts, symbols, names, trademarks, figurative or other signs.’13Under Article 29(1) of the directive:‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20 May 2016. They shall forthwith communicate to the Commission the text of those provisions.The Member States shall apply those measures from 20 May 2016, without prejudice to Articles 7(14), 10(1)(e), 15(13) and 16(3).’14Under Article 30 of the directive:‘Member States may allow the following products, which are not in compliance with this Directive, to be placed on the market until 20 May 2017:tobacco products manufactured or released for free circulation and labelled in accordance with Directive 2001/37/EC [of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ 2001 L 194, p. 26)] before 20 May 2016; The dispute in the main proceedings and the questions referred for a preliminary ruling 15Planta Tabak manufactures and markets tobacco products, in particular flavoured roll-your-own tobacco.16The Gesetz über Tabakerzeugnisse und verwandte Erzeugnisse (Law on tobacco products and related products) of 4 April 2016 (BGBl. 2016 I, p. 569, ‘the TabakerzG’) transposed Directive 2014/40.17By application of 25 April 2016 to the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany), Planta Tabak sought a declaration that certain provisions of the TabakerzG, relating to the prohibition of flavourings, shock photographs and the prohibition of advertising of flavourings, are not applicable to its products. Planta Tabak further argued that Article 7(1) and (7), Articles 8 to 11 and Article 13(1)(c) of Directive 2014/40 infringe primary EU law, in particular the principles of legal certainty, equal treatment and proportionality.18In the first place, the referring court entertains doubts as to the validity and interpretation of the provisions of Directive 2014/40 concerning the prohibition of flavourings in tobacco products, the rules on the labelling and packaging of tobacco products, and the prohibition of advertising of flavourings.19The referring court is uncertain, to begin with, as to the interpretation of Article 7(1), (7) and (14) of Directive 2014/40 and the conformity of that provision with the principle of legal certainty, as regards the prohibition from 20 May 2016 of placing on the market tobacco products with a characterising flavour where the EU-wide sales volume of those products is less than 3% in a particular product category, and from 20 May 2020 where that is not the case. The referring court explains that the tobacco manufacturers concerned are not in a position to obtain information on sales volumes at EU level, despite the introduction by the Commission, in Implementing Decision (EU) 2015/2186 of 25 November 2015 establishing a format for the submission and making available of information on tobacco products (OJ 2015 L 312, p. 5), of a reporting and information system intended in the medium term for the collection and making available of that information. Neither the Commission’s website nor those of the competent German federal authorities contain information of that kind or indications of how to obtain it. The procedure to be followed for the application of the derogation in Article 7(14) of Directive 2014/40 is thus not clearly defined.20Next, the expression ‘product category’ in that provision is not defined by Directive 2014/40 and cannot be defined with certainty by means of interpretation. The referring court is uncertain, in particular, whether product categories are to be classified solely according to the kind of tobacco product or the kind of flavouring it contains, or whether those two criteria are to be combined (menthol cigarettes, mentholated fine-cut tobacco, etc.).21The referring court observes, moreover, that, as regards the dates of application of the prohibitions of placing tobacco products on the market, Article 7 of that directive is contrary to the principle of equal treatment, in that it distinguishes between flavoured tobacco products according to their sales volume, although those products are in comparable situations from the point of view of the directive’s objectives of protecting consumers’ health and of eliminating obstacles to trade.22Furthermore, the referring court asks whether, having regard to the time limits laid down by Directive 2014/40, the prohibition of flavourings complies with the principle of proportionality and with Article 34 TFEU, bearing in mind the negative economic and social consequences for small and medium-sized undertakings specialising in ‘niche products’ whose market share at EU level is less than 3% and whose placing on the market is therefore prohibited from 20 May 2016.23In the second place, the referring court also mentions the shortness of the period ending on 20 May 2016 prescribed in Article 29(1) of Directive 2014/40 for the transposition of that directive and the commencement of the application of the national provisions, having regard to the dates of adoption of Commission Implementing Decision (EU) 2015/1735 of 24 September 2015 on the precise position of the general warning and the information message on roll-your-own tobacco marketed in pouches (OJ 2015 L 252, p. 49) and Commission Implementing Decision (EU) 2015/1842 of 9 October 2015 on the technical specifications for the layout, design and shape of the combined health warnings for tobacco products for smoking (OJ 2015 L 267, p. 5).24In this respect, the referring court asks whether, from the point of view of EU law, the national legislature is entitled generally to adopt its own transitional provisions. If the answer is in the negative, it then asks whether it is contrary to the principle of sincere cooperation laid down in Article 4(3) TEU, in conjunction with the principle of the uniform and effective application of EU law, to require the Member States to transpose Directive 2014/40 well before the expiry of the period laid down in Article 29(1) of the directive.25In addition, the referring court states that the temporal coincidence of the deadline for transposing Directive 2014/40 and the application of the national provisions is difficult to reconcile with the principle of proportionality. It considers that, without the detail added by Implementing Decisions 2015/1735 and 2015/1842 concerning inter alia the precise placing of the general warning and the information message on roll-your-own tobacco marketed in pouches, manufacturers would not have been able to plan and order packaging and printing materials or, if necessary, to arrange for the conversion of the corresponding filling and packaging machines. There was a period of approximately seven months between the adoption of those decisions and the date of 20 May 2016 laid down in Article 29(1) of Directive 2014/40.26In the third place, the referring court is uncertain, having regard to the principle of proportionality, whether the mere mention of a flavouring or a substance producing a smell or taste, permitted in tobacco products, in a neutral, non-advertising form on the unit packet or outside packaging is allowed by Article 13(1)(c) of Directive 2014/40.27Finally, the referring court asks whether, by prohibiting the use of certain trade marks, Article 13(1)(c) of Directive 2014/40 constitutes a disproportionate expropriation for the purposes of the second sentence of Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Trade mark proprietors to whom that provision applies are excluded from making any reasonable or relevant use of those marks and that exclusion affects them economically in the same way as a formal expropriation. The rules on labelling following from that provision have the consequence that trade mark proprietors are permanently deprived of certain essential possibilities of use referred to in Article 10 of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (OJ 2015 L 336, p. 1).28In those circumstances, the Verwaltungsgericht Berlin (Administrative Court, Berlin) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:‘(1)Is Article 7(1) and (7) of Directive 2014/40 … in conjunction with Article 7(14) of Directive 2014/40 … invalid on the ground of breach of the principle of legal certainty because it requires Member States to prohibit the placing on the market of particular tobacco products even though it is not stated clearly and precisely which of those tobacco products are to be prohibited from as early as 20 May 2016 and which only from 20 May 2020?Is Article 7(1) and (7) of Directive 2014/40 … in conjunction with Article 7(14) of Directive 2014/40 … invalid on the ground of breach of the principle of equal treatment because it differentiates, as regards the prohibitions to be adopted by Member States, on the basis of sales volumes without any valid reason for doing so?Is Article 7(1) and (7) of Directive 2014/40 … invalid on the ground of breach of the principle of proportionality and/or infringement of Article 34 TFEU because it requires Member States to prohibit, from as early as 20 May 2016, the placing on the market of tobacco products with a characterising flavour whose Union-wide sales volumes represent less than 3% in a particular product category?(d)If the answers to Question 1(a) to 1(c) are in the negative, how is the term “product category” in Article 7(14) of Directive 2014/40 … to be understood? Must assignment to “product categories” be based on the type of characterising flavour, on the type of (flavoured) tobacco product, or on a combination of both criteria?If the answers to Question 1(a) to 1(c) are in the negative, how is it to be ascertained, with respect to a particular tobacco product, whether the 3% limit in Article 7(14) of Directive 2014/40 … has been reached, in the absence of any official and publicly accessible figures and statistics in that regard?(2)When transposing Articles 8 to 11 of Directive 2014/40 … into national law, are Member States allowed to adopt supplementary transitional arrangements?If the answer to Question 2(a) is in the negative:Are Article 9(6) and Article 10(1)(f) of Directive 2014/40 … invalid on the ground of breach of the principle of proportionality and/or infringement of Article 34 TFEU because they delegate the determination of certain labelling and packaging requirements to the Commission without setting it a time limit in that respect and without providing for more extensive transitional arrangements or time limits to ensure that undertakings affected have adequate time to adapt to the requirements of the directive?Are the second subparagraph of Article 9(1) (text of the warning), the second sentence of Article 9(4)(a) (font size), Article 10(1)(b) (smoking cessation information) and (e) (positioning of the warnings), and the first sentence of the first subparagraph of Article 11(1) (labelling) of Directive 2014/40 … invalid on the ground of breach of the principle of proportionality and/or infringement of Article 34 TFEU because they confer on Member States various rights of selection and design without setting them a time limit in that respect and without providing for more extensive transitional arrangements or time limits to ensure that undertakings affected have adequate time to adapt to the requirements of the directive?(3)Must Article 13(1)(c) in conjunction with Article 13(3) of Directive 2014/40 … be interpreted as requiring Member States to prohibit the use of information referring to taste, smell, flavourings or other additives even where that information is not promotional information and the use of the ingredients is still permitted?Is Article 13(1)(c) of Directive 2014/40 … invalid on the ground that it infringes Article 17 of the Charter …?’ Consideration of the questions referred Question 1(a) to (c) 29By Question 1(a) to (c), the referring court essentially raises the question of the validity of Article 7(1), (7) and (14) of Directive 2014/40, having regard to the principles of legal certainty, equal treatment and proportionality and to Article 34 TFEU. Validity of Article 7(1), (7) and (14) of Directive 2014/40 having regard to the principle of legal certainty 30The referring court asks whether Article 7(1), (7) and (14) of Directive 2014/40, which requires the Member States to prohibit the placing on the market of certain tobacco products without specifying clearly and precisely which of those products must be prohibited from 20 May 2016 and which of them only from 20 May 2020, infringes the principle of legal certainty.31The principle of legal certainty indeed requires, according to settled case-law, that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (judgment of 25 July 2018, Teglgaard and Fløjstrupgård, C‑239/17, EU:C:2018:597, paragraph 52 and the case-law cited).32It must also be recalled, however, that it is not necessary for a legislative act itself to provide details of a technical nature, and that it is open to the EU legislature to have recourse to a general legal framework which is, if necessary, to be made more precise at a later date (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraphs 78 and 139).33The fact that Article 7(1), (7) and (14) of Directive 2014/40, first, does not specify the products with a particular characterising flavour whose EU-wide sales volumes represent 3% or more in a particular product category and, second, does not lay down a specific procedure for determining which products fall within Article 7(14) of the directive does not mean that Article 7(1), (7) and (14) of the directive infringes the principle of legal certainty. In the absence of any legislation in this respect at EU level, it is for the Member States or, if appropriate, the manufacturers themselves to choose a reliable method capable of ensuring compliance with the requirement following from that provision (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 101).34In those circumstances, it must be considered that Article 7(1), (7) and (14) of Directive 2014/40 does not infringe the principle of legal certainty. Validity of Article 7(1), (7) and (14) of Directive 2014/40 having regard to the principles of equal treatment and proportionality and to Article 34 TFEU 35The referring court asks whether, because of the distinction between tobacco products according to sales volumes drawn by Article 7(14) of Directive 2014/40, that provision infringes the principle of equal treatment.36It must be recalled that the principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 35).37The comparability of different situations must be assessed with regard to all the elements which characterise them. Those elements must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 12 May 2011, Luxembourg v Parliament and Council, C‑176/09, EU:C:2011:290, paragraph 32).38Directive 2014/40 pursues a twofold objective, according to Article 1, namely to facilitate the smooth functioning of the internal market in tobacco and related products while taking as a base a high level of protection of human health, especially for young people (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 80).39To achieve the objective of facilitating the smooth functioning of the internal market in tobacco and related products, it is necessary, according to recital 16 of Directive 2014/40, to avoid measures introducing unjustified differences of treatment between different types of flavoured cigarettes.40Moreover, the Court found in the judgment of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 114), that tobacco products containing a characterising flavour have similar objective characteristics and similar effects as regards initiating tobacco consumption and sustaining tobacco use.41Consequently, tobacco products with a particular characterising flavour whose EU-wide sales volume is less than 3% in a particular product category are not distinguished from tobacco products with a particular characterising flavour whose EU-wide sales volume represents 3% or more in a specific product category either from the point of view of the objective of facilitating the smooth functioning of the internal market in tobacco and related products or from the point of view of the objective of achieving a high level of protection of human health.42It follows that the flavoured products concerned by the prohibitions of characterising flavours in Article 7(1) and (7) of Directive 2014/40 are in comparable situations for the purposes of applying the principle of equal treatment.43However, as follows from the case-law cited in paragraph 36 above, a difference in treatment between comparable situations is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question and is proportionate to the aim pursued by the treatment (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 47).44On this point, the Court has acknowledged that, in the exercise of the powers conferred on it, the EU legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 57). The EU legislature was therefore able, in the exercise of its broad discretion, to proceed towards harmonisation only in stages and to require only the gradual abolition of the unilateral measures taken by the Member States (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraphs 63 and 134).45As regards the objectives pursued by Article 7(14) of Directive 2014/40, it may be seen from recital 16 of the directive that products with a characterising flavour representing a higher sales volume were to be phased out over an extended time period to allow consumers adequate time to switch to other products.46As the Advocate General observes in point 48 of his Opinion, the criterion of the sales volume of tobacco products with a characterising flavour in a particular product category does not target tobacco products containing a specific flavouring and is neutral with respect to manufacturers. The documents available to the Court do not show that tobacco products with a particular characterising flavour whose EU-wide sales volume is less than 3% in a particular product category are manufactured principally by small and medium-sized undertakings. That criterion must therefore be regarded as objectively justified.47Moreover, it must be considered appropriate for allowing consumers adequate time to switch to other products, thus allowing the economic consequences of the prohibition in Article 7 of Directive 2014/40 to be reconciled with the requirement of ensuring a high level of protection of human health.48As the Advocate General observes in point 50 of his Opinion, a criterion based on the sales volume of products, such as that at issue in the main proceedings, reflects consumption habits and the economic importance of the production of the products concerned.49In those circumstances, it must be concluded that Article 7(1), (7) and (14) of Directive 2014/40 does not infringe the principle of equal treatment.50Next, the referring court asks whether Article 7(1) and (7) of Directive 2014/40 is compatible with the principle of proportionality, as it prohibits the placing on the market of tobacco products with a characterising flavour whose market share at EU level is less than 3% in a particular product category.51According to settled case-law, the principle of proportionality requires that acts of the EU institutions must be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve those objectives; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 78).52As regards judicial review of the conditions mentioned in the preceding paragraph, according to the case-law cited in paragraph 44 above, the EU legislature enjoys a broad discretion in an area such as that concerned in the present case, which involves political, economic and social choices and in which it is called on to undertake complex assessments.53Given the objective pursued by the prohibition of placing tobacco products with a characterising flavour on the market, it must be stated that the prohibition is also appropriate for ensuring a high level of protection of human health, especially for young people. It is not disputed that certain flavourings are particularly attractive to them and that they facilitate initiation of tobacco consumption (judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraphs 81 and 82).54In its judgments of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323, paragraph 102), and of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 190), the Court found that by Article 7(14) of Directive 2014/40 the EU legislature struck a balance between the economic consequences of the prohibition in Article 7 of that directive, on the one hand, and, on the other, the requirement to ensure a high level of protection of human health with regard to a product characterised by harmful properties.55It must therefore be concluded that the prohibition of the placing on the market of tobacco products with a characterising flavour does not go manifestly beyond what is necessary in order to attain the objective pursued.56In those circumstances, it must be concluded that Article 7(1), (7) and (14) of Directive 2014/40 does not infringe the principle of proportionality.57Furthermore, with reference to the referring court’s doubts as to the compatibility of Article 7(1), (7) and (14) of Directive 2014/40 with Article 34 TFEU, it is clear that, although Article 7(1), (7) and (14) of that directive constitutes a restriction within the meaning of Article 34 TFEU, that restriction, as found in paragraph 54 above, is justified by the balancing of the economic consequences of the prohibition in Article 7 of Directive 2014/40 against the requirement to ensure a high level of protection of human health, and does not infringe the principle of proportionality. Consequently, Article 7(1), (7) and (14) of Directive 2014/40 does not infringe Article 34 TFEU either.58In the light of all the above considerations, the answer to Question 1(a) to (c) is that examination of that question has disclosed no factor of such a kind as to affect the validity of Article 7(1), (7) and (14) of Directive 2014/40. Question 1(d) and (e) 59By Question 1(d) and (e), the referring court essentially asks the Court to interpret the concept of ‘product category’ in Article 7(14) of Directive 2014/40 and to explain the procedure to be followed in order to establish whether the 3% limit laid down in that provision is reached in the case of a particular tobacco product.60It must be recalled that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (judgment of 26 September 2018, Baumgartner, C‑513/17, EU:C:2018:772, paragraph 23).61First, it should be observed that the expression ‘product category’, which appears in Article 7(14) of Directive 2014/40, is not defined in Article 2 of that directive, entitled ‘Definitions’.62Next, as regards the context in which Article 7(14) of Directive 2014/40 occurs, it must be observed that, in accordance with Article 7(12) of Directive 2014/40, cigarettes and roll-your-own tobacco are the only tobacco products concerned by the prohibitions in Article 7(1) and (7) of the directive.63Moreover, in Article 2(14) of Directive 2014/40, which defines the term ‘novel tobacco product’, cigarettes and roll-your-own tobacco are presented as separate categories of tobacco product.64Roll-your-own tobacco is also mentioned as an example of a ‘product category’ in recital 9 of the directive.65Cigarettes are consequently a ‘product category’ within the meaning of Article 7(14) of Directive 2014/40, as is roll-your-own tobacco.66As regards the objectives pursued by Article 7(14) of Directive 2014/40, recital 16 of the directive states that products with characterising flavour with a higher sales volume should be phased out over an extended time period to allow consumers adequate time to switch to other products.67In so far as the interpretation that cigarettes are a ‘product category’ within the meaning of Article 7(14) of Directive 2014/40, and roll-your-own tobacco is another one, is not contrary to those objectives, and in so far as identical terms used in the same EU act may be presumed to have the same meaning, the expression ‘product category’ within the meaning of that provision should not be interpreted differently from the same expression in other provisions of the directive.68Moreover, with regard to the method for establishing whether a particular tobacco product reaches the 3% limit at EU-wide level laid down in Article 7(14) of Directive 2014/40, in order to apply the derogation in that provision, it follows from the case-law cited in paragraph 33 above that in the absence of EU legislation it is for the Member States to establish a reliable method capable of ensuring compliance with the requirement following from that provision.69According to the documents before the Court, the Federal Republic of Germany, in accordance with that case-law, implemented Article 7(14) of Directive 2014/40 by laying down, in Paragraph 34(3) of the Verordnung über Tabakerzeugnisse und verwandte Erzeugnisse (Regulation on tobacco products and related products) of 27 April 2016 (BGBl. 2016 I, p. 980), the flavourings which tobacco products must contain for the prohibition of marketing those products to apply only from 20 May 2020.70In the light of the above considerations, the answer to Question 1(d) and (e) is that Article 7(14) of Directive 2014/40 must be interpreted as meaning, first, that the concept of ‘product category’ within the meaning of that provision covers cigarettes and roll-your-own tobacco and, second, that the procedure to be followed for determining whether a particular tobacco product reaches the 3% limit laid down in that provision must be established in accordance with the domestic law of the Member State concerned. Question 2 Question 2(a) 71By Question 2(a) the referring court asks essentially whether Articles 8 to 11 of Directive 2014/40 must be interpreted as allowing the Member States to determine transposition periods additional to those provided for in Articles 29(1) and 30(a) of that directive.72It must be observed that Article 29(1) of Directive 2014/40 provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 20 May 2016, and are to apply those measures from 20 May 2016, without prejudice inter alia to Article 7(14) of the directive.73Article 30 of the directive, headed ‘Transitional provision’, provides, however, in point (a) that the Member States may allow the placing on the market until 20 May 2017 of tobacco products manufactured or released for free circulation and labelled in accordance with Directive 2001/37 before 20 May 2016.74On the other hand, Articles 8 to 11 of Directive 2014/40 do not provide for transposition periods to take the place of those laid down in Articles 29 and 30 of the directive.75In the light of the above considerations, the answer to Question 2(a) is that Articles 8 to 11 of Directive 2014/40 must be interpreted as not allowing the Member States to determine transposition periods additional to those provided for in Articles 29 and 30 of that directive. Question 2(b) 76By Question 2(b) the referring court asks, in the event of a negative answer to Question 2(a), whether the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f), and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40 infringe the principle of proportionality and Article 34 TFEU.77The referring court notes that Article 9(6) and Article 10(1)(f) of Directive 2014/40 delegate to the Commission the establishment of certain rules concerning the labelling and packaging of tobacco products, without setting the Commission a time limit for doing so and without providing for more precise transitional arrangements or time limits to ensure that undertakings affected have adequate time to adapt to the requirements of the directive.78As regards the principle of proportionality, it must be observed that, since general principles of law, which include that principle, form part of the EU legal order, they must be observed not only by the EU institutions but also by the Member States in the exercise of the powers conferred on them by EU directives (judgment of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, paragraph 20).79In the present case, in accordance with Article 32 of Directive 2014/40, that directive entered into force on 19 May 2014, while the Member States were required to apply the laws, regulations and administrative provisions necessary to comply with the directive by 20 May 2016, without prejudice inter alia to Article 7(14).80The period of two years that was available to the Member States for adopting those provisions in order to transpose Directive 2014/40 and ensure that the economic operators affected would have adequate time to adapt to the requirements of the directive is sufficient from the point of view of the principle of proportionality.81Moreover, Article 30 of Directive 2014/40 authorises the Member States to allow the placing on the market until 20 May 2017 of tobacco products manufactured or released for free circulation and labelled in accordance with Directive 2001/37 before 20 May 2016.82Furthermore, as regards the compliance with Article 34 TFEU of the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f),and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40, it is clear that the principle of the free movement of goods does not preclude prohibitions or restrictions of imports, exports or goods in transit justified inter alia on grounds of protection of the health and life of humans (see, to that effect, judgment of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 60).83It follows that the provisions of the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f), and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40 must be regarded as consistent with the principle of proportionality and with Article 34 TFEU.84In those circumstances, the answer to Question 2(b) is that examination of that question has disclosed no factor of such a kind as to affect the validity of the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f), and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40. Question 3 Question 3(a) 85By Question 3(a) the referring court asks whether Article 13(1)(c) and (3) of Directive 2014/40 must be interpreted as requiring the Member States to prohibit the use of information referring to taste, smell, flavourings or other additives even where that information is not promotional information and the use of the ingredients concerned is still permitted.86In accordance with Article 13(1)(c) and (3) of Directive 2014/40, the labelling of unit packets, any outside packaging and the tobacco product itself cannot include any element or feature that refers to taste, smell, any flavourings or other additives or the absence thereof. Those elements and features may be represented inter alia by texts, symbols, names, trade marks, figurative or other signs.87Given that, according to the actual wording of Article 13(1)(c) of Directive 2014/40, tobacco products may not include ‘any element or feature’ that ‘refers’ to ‘any flavourings’, and that, according to the wording of Article 13(3) of the directive, those elements and features may include inter alia texts, symbols, names, trade marks or figurative signs that are not of a promotional nature, it must be considered that the EU legislature did not intend to draw a distinction between promotional and non-promotional information. That interpretation is borne out by the fact that, in contrast to the provisions of Article 13 of the directive, the EU legislature expressly provided in Article 20(4)(b) of the directive that unit packets and any outside packaging of electronic cigarettes and refill containers are not to include elements or features referred to in Article 13 of the directive, with the exception of Article 13(1)(c) of the directive, on the presence or absence of flavourings.88Moreover, as the Advocate General observes in point 78 of his Opinion, tobacco products with a characterising flavour can still be distinguished from other tobacco products, provided they do not include any of the elements listed in Article 13(1)(a) to (e) of the directive.89In addition, since the Court held in the judgment of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 141), that the prohibition of any element or feature referring to any flavouring applies irrespective of whether the information in question is factually accurate, it must be considered that the prohibition refers also to non-promotional information mentioning ingredients the use of which is allowed by Directive 2014/40.90It follows that Article 13(1)(c) and (3) of Directive 2014/40 must be interpreted as requiring the Member States to prohibit the use of information referring to taste, smell, flavourings or other additives even where that information is not promotional information and the use of the ingredients concerned is still permitted. Question 3(b) 91By Question 3(b) the referring court asks whether, because of the substantial restrictions on the use of trade marks in Article 13(1)(c) of Directive 2014/40, that provision infringes Article 17 of the Charter.92It must be observed that the right to property enshrined in Article 17 of the Charter extends also, in accordance with Article 17(2), to intellectual property.93By prohibiting the labelling of unit packets and any outside packaging and the tobacco product itself from mentioning trade marks referring to any flavourings, Article 13(1)(c) of Directive 2014/40, read in conjunction with Article 13(3) of the directive, restricts the use of those marks.94However, the right to property is not an absolute right and must be viewed in relation to its social function (see, to that effect, judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 113).95That consideration is reflected in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 47).96In accordance with that provision, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 160).97In the present case, the restriction of the use of trade marks was imposed by Directive 2014/40 and concerns only the use by manufacturers of their marks on the labelling of unit packets, the outside packaging and the tobacco product itself, consequently without prejudicing the substance of their trade mark rights, the purpose being to ensure a high level of health protection when the obstacles created by national laws on labelling are eliminated (see, to that effect, judgment of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 150).98Directive 2014/40 leaves the proprietors of the trade marks referred to in Article 13(1)(c) and (3) the freedom to make use of them in any way, in particular by wholesale, other than those mentioned in those provisions. Consequently, the restriction on the use of trade marks set out in paragraph 93 above does not amount to a deprivation of property.99Moreover, since, according to recital 16 of Directive 2014/40, tobacco products having a characterising flavour facilitate initiation of tobacco consumption and affect consumption patterns, the prohibition of placing trade marks referring to a flavouring on the labelling of unit packets, the outside packaging and the tobacco product itself is liable to make them less attractive and meets objectives of general interest recognised by the European Union, by contributing to ensuring a high level of protection of public health.100It follows that examination of the third question has disclosed no factor of such a kind as to affect the validity of Article 13(1)(c) and (3) of Directive 2014/40. Costs 101Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.On those grounds, the Court (First Chamber) hereby rules: 1. Examination of the first question referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Article 7(1), (7) and (14) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC. 2. Article 7(14) of Directive 2014/40 must be interpreted as meaning, first, that the concept of ‘product category’ within the meaning of that provision covers cigarettes and roll-your-own tobacco and, second, that the procedure to be followed for determining whether a particular tobacco product reaches the 3% limit laid down in that provision must be established in accordance with the domestic law of the Member State concerned. 3. Articles 8 to 11 of Directive 2014/40 must be interpreted as not allowing the Member States to determine transposition periods additional to those provided for in Articles 29 and 30 of that directive. 4. Examination of the second question referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f), and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40. 5. Article 13(1)(c) and (3) of Directive 2014/40 must be interpreted as requiring the Member States to prohibit the use of information referring to taste, smell, flavourings or other additives even where that information is not promotional information and the use of the ingredients concerned is still permitted. 6. Examination of the third question referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Article 13(1)(c) and (3) of Directive 2014/40. [Signatures]( *1 ) Language of the case: German. | e476d-e1b9c8c-4ffd | EN |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.