Opinion of the Advocate General — ECLI:EU:C:2018:287
Date: 2018-04-26
Language of the case: English
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, the national rules therefore establish a kind of general suspicion in respect of senior executives who have not yet attained the pension age, which runs counter to the fundamental idea of combating abuse. According to case-law, a general presumption of the existence of abuse is unlawful. (32) 4. Interim conclusion 66. The answer to the first two questions must therefore be that Article 8 of Directive 2008/94 is to be interpreted to the effect that every individual employee — subject to specific cases of abuse within the meaning of Article 12(a) of that directive — is entitled to compensation of at least 50% of the total value of his accrued rights or entitlements to old-age benefits in the event of the insolvency of his employer. C. The third question 67. The third question concerns the direct applicability of Article 8 of Directive 2008/94 in the main proceedings. 68. It is settled case-law that national courts must provide the legal protection which individuals derive from the rules of EU law and ensure that those rules are fully effective. (33) If such provisions are contained in a directive, national courts are also bound, when they apply domestic law, to interpret that law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the objective pursued by the directive and thus to comply with the third paragraph of Article 288 TFEU. (34) 69. If it is not possible, in the view of the national court, to give an interpretation in conformity with the directive, a provision of the directive may also be applied directly. This is the case — where there has been a failure to implement a directive by the end of the period prescribed or to implement the directive correctly — as regards all the provisions of a directive which are unconditional and sufficiently precise (see 1 below), provided they are to be relied on against the State (see 2 below). (35) 1. The unconditional and sufficiently precise nature of the provision 70. The Court clarified in Francovich the conditions under which a provision is to be regarded as unconditional and sufficiently precise. According to that judgment, three factors are relevant: first, the beneficiaries, second, the content of the claim and, third, its addressees, that is, the person liable for the act or obligation concerned. (36) Unlike in Francovich, in the present case these three criteria for direct application are all met, the addressee being clear from the national implementing provisions. (37) (a) Beneficiaries 71. It is clear from the wording of Article 8 of Directive 2008/94 that it is intended to protect employees affected by the insolvency of their employer. The Court has ruled that the determination by the Directive of the beneficiaries of the guarantees of that directive meets the conditions of precision and unconditionality normally required for a direct application of the provision. (38) (b) Content of the claim 72. If consideration is given only to the wording of Article 8 of the Directive, the specific content of the right which is to be conferred on employees is less clear. (39) 73. However, the Court made clear in Francovich that the possibility of choosing among several possible means does not preclude the relevant provisions of the directive being applied directly. (40) Rather, it is sufficient that it is possible to determine a minimum guarantee on the basis of the provision in question. (41) The Court thus ruled in Webb-Sämann that, although the Member States enjoy a wide margin of appreciation when implementing Article 8 of Directive 2008/94, they are nonetheless obliged to ensure a minimum degree of protection for employees as required by that provision. (42) 74. The precise content of this minimum guarantee is undoubtedly evident from the Court’s case-law on the provision. (43) The case-law clarifies and defines, where necessary, the meaning and scope of that provision as it must be, or ought to have been, understood and applied from the date of its entry into force. (44) 75. The purpose of the requirement that a provision which is to be applied directly must be unconditional and sufficiently precise is to guarantee a manageable right in practice. To this effect the Court states in settled case-law that a provision must be sufficiently precise to be relied on by an individual and applied by a court (45) The assessment thus depends on whether the precise content is clear beyond doubt to the body applying the law, that is to say, from the provision itself, from its context and its drafting history (46) and with the aid of the case-law concerning it. (47) 76. For those responsible at the PPF, it became clear at the latest when the judgment was delivered in Robins on 25 January 2007 that they were not permitted to apply a basis for calculation under which certain employees would receive compensation of less than 50% of their accrued entitlements. (48) Instead, the ceiling for compensation claims should have been set, directly applying Article 8 of the Directive, at 50% of the accrued pension entitlement at least. 77. The content of the obligation under Article 8 of Directive 2008/94 was therefore to be regarded as unconditional and sufficiently precise on 19 September 2011, the date of the contested assessment decision by the PPF. (49) (c) Addressee of the obligation 78. As regards the addressees of the obligation, the Court has stressed that the Member States enjoy broad discretion in implementing the protection in the context of Article 8 of the Directive. Protection can thus be ensured by direct funding by the public authorities, an obligation on employers to insure or the setting up of a guarantee institution. (50) 79. However, the Court also ruled in Gharehveran with regard to the precision of the addressees that the individual must be allowed to rely on the directive once the discretion given to the Member State has been fully used. (51) The Member State must therefore be bound to a decision taken in transposing the directive if this constitutes the exercise of the discretion available to the Member State. (52) 80. In Francovich the Court had considered that Article 3 of Directive 80/987 was not directly applicable in respect of the precision of the addressees only because it had not been transposed at all in the Member State concerned. On that occasion the Court ruled that the Italian Republic could not itself be identified as the person liable for the unpaid claim in question solely because it had not transposed the directive. (53) 81. The situation is different here, however. The United Kingdom introduced rules transposing Directive 2008/94 which fail to meet the requirements of Article 8 of the Directive only with regard to the prescribed minimum guarantee of 50%. The national rules do, however, contain a clear definition of those responsible for the calculation and for liability, namely the PPF. Furthermore, detailed rules were laid down governing the funding of the PPF and the winding up of supplementary occupational pension schemes. (54) 82. Consequently, the addressee of the obligation under Article 8 of the Directive is also fixed unconditionally and sufficiently precisely in this case. 2. Reliance on direct applicability against public bodies 83. It is recognised that provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals, not only against a Member State and all the organs of its administration, (55) but also against other organisations or bodies which are subject to the authority or control of the State or which possess special powers. (56) 84. It is settled case-law that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for performing a task in the public interest and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included among the bodies against which the provisions of a directive capable of having direct effect may be relied upon. (57) 85. The PPF is such a body. It performs the task in the public interest, which is laid down in the Directive, (58) of determining the specific level of protection in each individual case and, if necessary, assuming responsibility for employees’ claims. In addition, it has special powers within the meaning of the above definition, (59) as it may impose a levy on eligible supplementary occupational pension schemes and, in addition, it has the right under section 154 of the Pensions Act 2004 to issue the necessary directions to supplementary occupational pension schemes in connection with their winding up. Furthermore, it was apparent at the hearing that the classification of the PPF as a State authority is not disputed between the parties. 86. By contrast, a directive cannot impose obligations directly on an individual. (60) 87. For this reason, the United Kingdom rejects the direct application of Article 8 of Directive 2008/94 in the main proceedings, asserting that the provision may not be relied on against a private body such as the T&N pension scheme. 88. It is clear from the order for reference, however, that it is not necessary in the main proceedings to examine whether Mr Hampshire can claim from T&N directly payment of compensation of at least 50% of his accrued pension entitlement. The defendant and respondent in the main proceedings is the PPF. The national court designates the subject-matter of the proceedings as the stage preceding payment, the valuation of the protected liabilities by the PPF. That decision makes a binding determination of the amount of compensation received by employees both in the case of assumption of responsibility by the PPF and in the case of a possible winding up outside the PPF. 89. Accordingly, the only question arising in the main proceedings is whether a body like the PPF may be required to conduct a revaluation of the protected liabilities and, in doing so, to apply Article 8 of the Directive directly. 90. It is true that the Pensions Act 2004 provides that T&N continues to be responsible for payment if there are sufficient funds in its assets to grant the State-fixed PPF compensation. However, this does not mean that there is a direct application of the provision vis-à-vis T&N. Rather, the Pensions Act 2004 merely provides, in the special case of a surplus, that the occupational pension scheme will not be incorporated into the PPF because no subsidisation is necessary. In this case, too, however, the supplementary occupational pension scheme is wound up according to the directions of the Board, albeit outside the PPF. If, following a revaluation, the protected liabilities exceeded the available assets, the PPF would have to assume responsibility in any case. 91. The purpose of the main proceedings, as described in the request for a preliminary ruling and also discussed at the hearing before the Court, is limited to requiring the PPF to apply Article 8 of the Directive directly in the calculation of liabilities. It is possibly also to be required to exercise its power to issue directions to T&N in accordance with EU law. 92. The effect which the calculation of the PPF compensation may then have on supplementary pension schemes whose funds are sufficient even without subsidisation can therefore be described as a mere reflex. It results from the particular characteristics of the Pensions Act 2004 and not from the Directive itself. In so far as this may be seen as detrimental to T&N, it is nevertheless recognised in the Court’s case-law that mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from relying on a directly applicable provision of a directive against the Member State. (61) 93. Admittedly, the other employees of T&N would possibly have received additional payments in the event of the distribution of the surplus created because of the undervalued compensation claims of Mr Hampshire and the other applicants. It should be noted in this regard, however, that the mere removal of such possible benefits likewise cannot be regarded as an obligation falling on a third party pursuant to the provision of the directive relied on. (62) V. Conclusion 94. I therefore propose that the questions referred for a preliminary ruling be answered as follows: (1) Article 8 of Directive 2008/94 is to be interpreted to the effect that every individual employee — subject to specific cases of abuse within the meaning of Article 12(a) of that directive — is entitled to compensation of at least 50% of the total value of his accrued rights or entitlements to old-age benefits in the event of the insolvency of his employer. (2) Article 8 of Directive 2008/94 contains an obligation on Member States which is unconditional and sufficiently precise, with the result that it may be relied on directly by an individual against a body such as the Pension Protection Fund. 1 Original language: German. 2 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ 2008 L 283, p. 36), which replaces Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23). 3 Judgments of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 57), and of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272, paragraph 51). 4 Judgment of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272, paragraph 51). 5 Judgments of 16 July 1992, Meilicke (C‑83/91, EU:C:1992:332, paragraph 23); of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709, paragraphs 34 and 37); and of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 130). 6 It is not explained in any case why a reference with a view to the direct application of a provision of EU law should be precluded if the conditions for making a claim for damages against the State are not met. It should also be pointed out that the relevant State action which might have infringed Article 8 of the Directive is not the insolvency in 2006, but the PPF decision in 2011. 7 Judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56). 8 ‑ 9 Judgments of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56), and of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272). 10 Judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 57). 11 Judgments of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272, paragraph 51), and of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891, paragraph 35). 12 Judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 57). 13 The operative part of the judgment of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272) thus also states that the plaintiffs did not retain at least 50% of the value of their entitlement. 14 Judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 3); of 18 October 2001, Gharehveran (C‑441/99, EU:C:2001:551, paragraph 26); and of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891, paragraph 31); see also recital 3 of Directive 2008/94. 15 See also Article 11(1) of Directive 2008/94. 16 COM(78) 141 final, p. 7, comments on Article 7 of the draft directive, which is essentially the same as Article 8 of the final directive. 17 Judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 38 et seq.); of 5 March 1996, Brasserie du Pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51); and of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56 paragraph 69). 18 Judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 82). 19 See points 11 and 15 of this Opinion. 20 Judgment of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891, paragraph 27). 21 COM(78) 141 final, p. 7. 22 Judgments of 17 May 1990, Barber (C‑262/88, EU:C:1990:209, paragraph 25), and of 1 April 2008, Maruko (C‑267/06, EU:C:2008:179, paragraph 45); and my Opinion in Parris (C‑443/15, EU:C:2016:493, point 33). 23 Judgments of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 42 et seq.), and of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272, paragraph 42). 24 See my Opinion in Robins and Others (C‑278/05, EU:C:2006:476, point 71). 25 This limit represents fair compensation from the point of view of EU law (see judgment of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272, paragraph 43 et seq.)). 26 See point 50 of this Opinion and footnotes 21 and 22. 27 Judgments of 3 December 1974, van Binsbergen (33/74, EU:C:1974:131, paragraph 13); of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 24); of 28 July 2016, Kratzer (C‑423/15, ECLI:EU:C:2016:604, paragraph 37); and of 22 November 2017, Cussens and Others (C‑251/16, EU:C:2017:881, paragraph 27). 28 Judgments of 22 May 2008, Ampliscientifica and Amplifin (C‑162/07, EU:C:2008:301, paragraph 27 et seq.); of 5 July 2007, Kofoed (C‑321/05, EU:C:2007:408, paragraph 38); and of 22 November 2017, Cussens and Others (C‑251/16, EU:C:2017:881,paragraph 27). 29 According to case-law, however, concrete evidence that relates to the individual case in question is necessary (see, for example, judgment of 18 December 2014, McCarthy and McCarthy Rodriguez (C‑202/13, EU:C:2014:2450, paragraph 53)). 30 According to the formula developed by the Court in taxation law, such rules must have the specific purpose of applying to the abusive arrangements (see judgments of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 55), and of 13 March 2007, Test Claimants in the Thin Cap Group Litigation (C‑524/04, EU:C:2007:161, paragraph 79)). 31 See, with regard to this requirement, judgments of 6 November 2003, Gambelli and Others (C‑243/01, EU:C:2003:597, paragraph 67); of 10 March 2009, Hartlauer (C‑169/07, EU:C:2009:141, paragraph 55); and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 78). This case-law in relation to the fundamental freedoms must also apply to rules of secondary law (see also my Opinions in Persidera, C‑112/16, EU:C:2017:250, point 66 with footnote 46, and in Commission v Austria, C‑187/16, EU:C:2017:578, point 71). 32 See, to that effect, judgments of 4 March 2004, Commission v France (C‑334/02, EU:C:2004:129, paragraph 27); of 28 October 2010, Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraph 34); and of 25 October 2017, Polbud — Wykonawstwo (C‑106/16, EU:C:2017:804, paragraph 64). 33 See, with regard to directives, judgments of 9 March 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 111), and of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 42), and, in general, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 34), and of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraph 34). 34 Judgments of 13 November 1990, Marleasing (C‑106/89, EU:C:1990:395, paragraph 8); of 5 October 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113); of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 98); of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 38); and of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraphs 29 and 31). 35 Judgments of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraphs 17 to 25); of 9 March 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 103); of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraph 33); and of 15 February 2017, British Film Institute (C‑592/15, EU:C:2017:117, paragraph 13). 36 Judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 12). 37 See point 78 et seq. of this Opinion and judgment of 18 October 2001, Gharehveran (C‑441/99, EU:C:2001:551, paragraphs 39 to 44). 38 Judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 22), and of 18 October 2001, Gharehveran (C‑441/99, EU:C:2001:551, paragraph 33), with regard to Directive 80/987 as the predecessor provision to Directive 2008/94. 39 Or ‘nebulous’, as Advocate General Bobek put it in Webb-Sämann (C‑454/15, EU:C:2016:653, point 58). 40 Judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 17). 41 See, to that effect, judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 19 et seq.); of 9 March 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 105); and of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 74). 42 Judgment of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891, paragraph 35). 43 See in this regard the statements made in this Opinion under B. 44 See, most recently, judgments of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 44); of 19 April 2016, Dansk Industri (C‑441/14, EU:C:2016:278, paragraph 40); and of 22 November 2017, Cussens and Others (C‑251/16, EU:C:2017:881, paragraph 41). 45 Judgments of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraph 27); of 26 October 2006, Pohl-Boskamp (C‑317/05, EU:C:2006:684, paragraph 41); and of 1 July 2010, Gassmayr (C‑194/08, EU:C:2010:386, paragraph 45). 46 See judgments of 17 December 1970, SACE (33/70, EU:C:1970:118, paragraph 13); of 4 December 1974, Van Duyn (41/74, EU:C:1974:133, paragraph 12); and of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraph 27 et seq.). 47 See, with regard to the possibility of a provision being clarified by case-law, judgment of 4 December 1974, Van Duyn (41/74, EU:C:1974:133, paragraph 14). 48 The Court ruled to this effect, for example, in the judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (C‑664/15, EU:C:2017:987, paragraphs 45 et seq., 55 et seq.), stating that a national provision which does not ensure the minimum protection provided for in Article 9(3) of the Aarhus Convention may not be applied. See also judgment of 15 October 2009, Djurgården-Lilla Värtans Miljöskyddsförening (C‑263/08, EU:C:2009:631, paragraph 45). 49 The date of insolvency on 10 July 2006 is thus immaterial. Furthermore, according to case-law, EU law applies in any case to the future effects of situations that have arisen in the past (see, for example, judgment of 7 November 2013, Gemeinde Altrip and Others (C‑72/12, EU:C:2013:712, paragraph 22), and of 26 March 2015, Commission v Moravia Gas Storage (C‑596/13 P, EU:C:2015:203, paragraph 32)). 50 Judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 36 et seq.). 51 Judgment of 18 October 2001, Gharehveran (C‑441/99, ECLI:EU:C:2001:551, paragraph 44), with regard to the predecessor Directive 80/987. 52 See to that effect judgment of 18 October 2001, Gharehveran (C‑441/99, ECLI:EU:C:2001:551, paragraph 40). 53 Judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 25). In Wagner Miret, on the other hand, there was only partial transposition by which certain areas were not yet regulated at all, with the result that national discretion had likewise not been fully used (see judgment of 16 December 1993, (C‑334/92, EU:C:1993:945, paragraph 16 et seq.)). 54 See, with regard to these criteria, judgment of 18 October 2001, Gharehveran (C‑441/99, ECLI:EU:C:2001:551, paragraph 41). 55 See, for example, judgments of 19 January 1982, Becker (8/81, EU:C:1982:7 paragraph 25); of 8 October 1987, Kolpinghuis Nijmegen (80/86, EU:C:1987:431, paragraph 7); of 22 June 1989, Costanzo (103/88, EU:C:1989:256, paragraph 31); and of 28 June 2007, JP Morgan Fleming Claverhouse (C‑363/05, EU:C:2007:391, paragraph 58). 56 Judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraph 18); of 4 December 1997, Kampelmann and Others (C‑253/96 to C‑258/96, EU:C:1997:585, paragraph 46); and of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 33). 57 Judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraph 18); of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraph 39); and of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 33). 58 See also, with regard to these criteria, judgment of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 38 et seq.). 59 See judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraph 18); of 4 December 1997, Kampelmann and Others (C‑253/96 to C‑258/96, EU:C:1997:585, paragraph 46); of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraph 39); and of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 38 et seq.). 60 Judgments of 14 July 1994, Faccini Dori (C‑91/92, EU:C:1994:292, paragraph 25); of 9 March 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 108); of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 36); and of 19 April 2016, Dansk Industri (C‑441/14, EU:C:2016:278, paragraph 30). 61 See, to that effect, judgments of 26 September 2000, Unilever (C‑443/98, EU:C:2000:496, paragraph 49 et seq.); of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 57); of 17 July 2008, Arcor and Others (C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 36); and of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraph 48). 62 See judgment of 17 July 2008, Arcor and Others (C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 38).