Opinion of the Advocate General — ECLI:EU:C:2018:937
Date: 2018-11-21
Language of the case: Portuguese
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 25 September 2017 — Associação Peço a Palavra and Others v Conselho de Ministros (Case C-563/17) Language of the case: Portuguese Referring court Supremo Tribunal Administrativo Parties to the main proceedings Applicants: Associação Peço a Palavra, João Carlos Constantino Pereira Osório, Maria Clara Marques Pires Sarmento Franco, Sofia da Silva Santos Arauz and Maria João Galhardas Fitas Defendants: Conselho de Ministros Others: PARPÚBLICA — Participações Públicas, SGPS, SA, and TAP, SGPS, SA Questions referred (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/EC 1 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 question 4 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 question 4 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? ____________ 1 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.