Abstract;Judgment — ECLI:EU:C:2020:792
Date: 2020-10-06
Language of the case: Hungarian
Court formation: Grand Chamber
Subject matter: Right of establishment;Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Action for failure to fulfil obligations - successful
Origin: Hungary

summary, I therefore suggest that the Court find that, by adopting Paragraph 76(1)(a) of the Law on higher education, Hungary infringed its obligations under Article XVII of the GATS in conjunction with Article 216(2) TFEU and under the second sentence of Article 13 and Article 14(3) of the Charter. 2. Requirement of the existence of genuine teaching activities in the State of origin, Paragraph 76(1)(b) of the Law on higher education 152. With regard to Paragraph 76(1)(b) of the Law on higher education, which makes the establishment and continued operation of a foreign higher education institution in Hungary dependent on the existence of genuine teaching activities in the State of origin, the Commission alleges infringements of Article 16 of Directive 2006/123, Articles 49 and 56 TFEU, Article 13, Article 14(3) and Article 16 of the Charter and Article XVII of the GATS. Unlike the requirement of the conclusion of an international treaty that has just been examined, the condition now under review also applies to higher education institutions having their seat in another Member State of the European Union or the EEA. (a) Infringement of Article 49 TFEU in conjunction with Article 54 TFEU 153. It is first necessary to consider the alleged infringement of freedom of establishment. It must be assumed that ‘teaching activities leading to a qualification’, which are subject to special requirements under Paragraph 76(1) of the Law on higher education, are offered in the vast majority of cases by a permanent establishment in Hungary. (1) Limitation of freedom of establishment 154. According to the Court’s case-law, the organisation of remuneration of university courses falls within the scope of freedom of establishment when that activity is carried on by a national of one Member State in another Member State on a stable and continuous basis from a principal or secondary establishment in the latter Member State. (70) 155. It is settled case-law that Article 49 TFEU includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the same conditions as are laid down by the law of the Member State of establishment for its own nationals. On the other hand, all measures which prohibit, impede or render less attractive the exercise of freedom of establishment within the meaning of the first paragraph of Article 49 TFEU must be regarded as constituting restrictions on that freedom. (71) 156. By these standards, Paragraph 76(1)(b) of the Law on higher education limits the freedom of establishment of foreign higher education institutions in Hungary, as they are impeded in commencing higher education activities and are required to cease those activities after the expiry of the transitional period if they do not offer higher education in their State of origin. (2) Justification of the limitation 157. As regards the justification for this measure, Article 52(1) TFEU provides that special treatment for foreign nationals may be justified only on grounds of public policy, public security or public health. 158. There is a case of ‘special treatment for foreign nationals’ here, as only foreign higher education institutions are required to prove the existence of an institution in their State of origin in order to commence or continue teaching activities in Hungary. Domestic higher education institutions are naturally unable to provide such proof because they do not have a seat in another Member State. This does not mean, however, that foreign higher education institutions would not be comparable in this respect with domestic higher education institutions. (72) Having a seat in another Member State cannot be a permissible criterion for differentiation in this connection. The discriminatory character of the rules resides precisely in the fact that the activities of foreign higher education institutions are subject to additional conditions because they have their seat in another Member State. 159. Hungary also relies on the protection of public policy and claims that the requirement at issue is necessary to prevent deceptive and fraudulent practices. In addition, it is contended, it is the only way to assure teaching quality. 160. The justification of public policy means protection against a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Although the importance of the aims of preventing deceptive and fraudulent practices and assuring high teaching quality should not be dismissed, no fundamental interests of society are affected within the meaning of this definition. (73) 161. It should be pointed out in this regard that the Court has ruled that Article 49 TFEU prohibits Member States, in principle, from prohibiting the formation of a branch solely on the ground that the company concerned has not carried on business activities in the State in which it has its seat. (74) It is another matter whether the Member State may impose requirements for the activities of the branch and, if so, which. 162. Moreover, a justification for other overriding reasons in the public interest can be taken into consideration only in the case of restrictions of freedom of establishment which are applied without discrimination on grounds of nationality. (75) 163. By adopting Paragraph 76(1)(b) of the Law on higher education, Hungary therefore infringed Article 49 TFEU. (b) Infringement of Article 16 of the Services Directive 164. The Commission also considers that the condition in Paragraph 76(1)(b) of the Law on higher education constitutes an infringement of the Services Directive. (1) Applicability 165. Under Article 2(1) of the Services Directive, the directive applies to services supplied by providers established in a Member State, ‘service’ being defined in Article 4(1) of the directive as a ‘self-employed economic activity, normally provided for remuneration’. According to case-law, courses provided by educational establishments financed essentially by private funds that do not come from the provider itself constitute services, since the aim of such establishments is to offer a service for remuneration. (76) 166. Article 2(1) of the Services Directive does not explicitly lay down any other requirements governing applicability. In particular, it does not have regard to the temporary nature of the activities, which is used in connection with the fundamental freedoms in distinguishing between freedom of establishment and freedom to provide services, (77) as the Services Directive also contains rules on freedom of establishment for providers. (78) I consider this distinction to be relevant in this case, however, as the Commission specifically alleges an infringement of Article 16 of the Services Directive, which is in Chapter IV on free movement of services. 167. Paragraph 76(1)(b) of the Law on higher education falls within the scope of Article 16 of the Services Directive only in so far as it makes the temporary provision of teaching activities leading to a degree subject to special conditions. Such business models are perfectly feasible, although the vast majority of higher education institutions offering qualifications undoubtedly do so through a permanent establishment. 168. In any event, Paragraph 76(1)(b) of the Law on higher education does not distinguish between institutions which carry on teaching activities in Hungary permanently and those which do so only temporarily. Nor does the rule distinguish between suppliers of privately financed education services and those whose activities are not for profit. 169. The rule therefore falls at least partly within the scope of Article 16 of the Services Directive. (2) Lawful requirement for the purposes of Article 16(1) and (3) of the Services Directive? 170. Under Article 16(1) and (3) of the Services Directive, Member States may make access to or exercise of a service activity in their territory only subject to compliance with requirements which are non-discriminatory, necessary and proportionate. The requirements set out must, in accordance with point (b) of the third subparagraph of Article 16(1) and Article 16(3) of the directive, serve to maintain public policy, public security, public health or the protection of the environment. 171. In the present case, the requirement in Paragraph 76(1)(b) of the Law on higher education is not lawful because of its discriminatory character. (79) 172. In any event, however, the measure cannot be justified on any of the grounds mentioned in point (b) of the third subparagraph of Article 16(1) or Article 16(3). It has already been shown that the rule at issue cannot be justified on grounds of protection of public policy. (80) 173. The EU legislature did not provide in Article 16 of the Services Directive, — unlike in other provisions of the directive (81) — for a justification for other overriding reasons in the public interest, which, according to recital 40 of the directive, include a high level of education. 174. It is true that case-law recognises a justification for overriding reasons in the public interest in the context of Article 56 TFEU. However, such a justification has not thus far been recognised in similar cases where there are discriminatory measures. (82) Consequently, there is no need to determine in the present case whether the possible justifications in the context of Article 16 of the Services Directive could be lawfully restricted by the EU legislature vis-à-vis the justifications recognised in primary law, (83) as the measure at issue likewise could not be considered to be justified under Article 56 TFEU. 175. It must therefore be stated that the requirement of the existence of genuine teaching activities in the State of origin does not satisfy the requirements of Article 16(1) and (3) of the Services Directive. By Paragraph 76(1)(b) of the Law on higher education, Hungary thus infringed Article 16 of the Services Directive. 176. The Services Directive contains more specific rules than Article 56 TFEU, which is relied on in the alternative, and there is thus no need to examine the latter provision in this case. (84) (c) Infringement of the Charter 177. Finally, it must be examined whether by adopting Paragraph 76(1)(b) of the Law on higher education, Hungary breached the fundamental rights of the higher education institutions concerned, in particular those under Article 13 and Article 14(3) of the Charter. (85) (1) Applicability of the Charter 178. Paragraph 76(1)(b) of the Law on higher education constitutes a deficient transposition of the Services Directive. (86) The Charter is therefore applicable under Article 51(1) thereof. (87) 179. The question whether a separate infringement of the Charter can be found if EU law is applicable merely by reason of a restriction of fundamental freedoms does not therefore arise in this case, contrary to the view taken by Hungary. (88) 180. However, the finding of a separate breach of a fundamental right has no particular repercussions in this case, as the action for failure to fulfil obligations is already well founded on account of the infringements of the Services Directive and Article 49 TFEU. The separate examination of fundamental rights nevertheless reflects the particular significance and nature of the infringement more clearly. This holds especially if, as in this case, the alleged breach of fundamental rights goes beyond the detrimental economic effects which are already covered by a finding of infringements of the internal market rules. (2) Interference 181. As has already been explained, a condition which, if not fulfilled, means that a university’s teaching and research activities may not be commenced or must be ended and the foundation and operation of such an institution on a profit-making basis are prohibited falls within the scope of protection offered by both the second sentence of Article 13 and Article 14(3) of the Charter. (89) (3) Justification 182. It must therefore be examined whether interference with those fundamental rights caused by Paragraph 76(1)(b) of the Law on higher education can be justified. In particular, interference would have to be proportionate. (90) According to the wording of Article 52(1) of the Charter, limitations of fundamental rights 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. 183. Hungary asserts, first, that only where teaching activities exist in the State of origin can its authorities be certain that the activities are lawful and that all the conditions for teaching activities in the State of origin are fulfilled. Fraudulent practices can thereby be prevented. Second, the authorities can verify, on the basis of the education offered in the State of origin, whether the institution has a sustainable strategy and qualified teaching staff, thereby assuring the quality of teaching. 184. It is true that the successful operation of a higher education institution in the State of origin indicates that it meets all the legal conditions for operation there. That condition is therefore appropriate for eliminating illegal and fraudulent institutions at any early stage. 185. The legality and integrity of a higher education programme certainly cannot, however, be verified solely on the basis of existing teaching activities in the State of origin. If there are no such activities in the State of origin, a Member State must therefore also accept other appropriate proof, particularly given the paramount importance of the right to free establishment in the European Union, which, according to case-law, specifically includes the right of companies to carry on their activities principally or exclusively in a Member State other than the one in which they have their seat. (91) In order to avoid contradictory assessments, proof of activities in the State of origin cannot therefore be regarded as necessary. 186. As regards the aim of quality control, the Hungarian Government has not explained at all how the mere existence of higher education in the State of origin might assure the quality of education in the host State. It can hardly be presumed that the university employs the same teaching staff and teaches the same content in both States or that quality standards are the same in both States. The appropriateness of the measure is thus questionable. 187. As regards the necessity of the requirement, it should be noted that it would be impossible to carry out quality control upon the initial foundation of domestic higher education institutions if existing provision was the only means to verify quality. Consequently, recourse must inevitably be had to other quality control measures which could also be applied to foreign higher education institutions. 188. Therefore, the link to the existence of teaching activities in the State of origin is, in itself, not appropriate and generally not necessary in any case for ensuring the legality and quality of higher education. (4) Conclusion 189. By adopting Paragraph 76(1)(b) of the Law on higher education, Hungary thus also infringed the second sentence of Article 13 and Article 14(3) of the Charter. (d) Infringement of Article XVII of the GATS in conjunction with Article 216(2) TFEU 190. In so far as the Commission also alleges an infringement of Article XVII of the GATS in respect of the requirement in Paragraph 76(1)(b) of the Law on higher education, it is sufficient to note that the rules of primary and secondary EU law prevail over international trade law in relations between Member States. (92) 191. However, Paragraph 76(1)(b) of the Law on higher education also applies to universities from third countries. For the abovementioned reasons, (93) that rule thus infringes the national treatment obligation under Article XVII of the GATS and cannot be regarded as a permissible exception in accordance with Article XIV of the GATS. That provision permits measures necessary to protect public morals or to maintain public order (94) or to prevent deceptive and fraudulent practices. As has been explained, the requirement of teaching activities in the State of origin does not fulfil those requirements. (95) 192. An infringement of Article XVII of the GATS in conjunction with Article 216(2) TFEU should thus also be taken to exist with regard to the requirement in Paragraph 76(1)(b) of the Law on higher education. VI. Conclusion 193. In the light of all the foregoing considerations, I propose that the Court should rule as follows: (1) By adopting Paragraph 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law CCIV of 2011 on national higher education), as amended, Hungary infringed Article XVII of the General Agreement on Trade in Services in conjunction with Article 216(2) TFEU and the second sentence of Article 13 and Article 14(3) of the Charter of Fundamental Rights of the European Union. (2) By adopting Paragraph 76(1)(b) of Law CCIV of 2011, as amended, Hungary infringed Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, Article 49 TFEU in conjunction with Article 54 TFEU, Article XVII of the General Agreement on Trade in Services in conjunction with Article 216(2) TFEU and the second sentence of Article 13 and Article 14(3) of the Charter of Fundamental Rights. (3) Hungary shall bear the costs. 1 Original language: German. 2 His foundations are affected by another piece of Hungarian legislation adopted alongside this, Law LXXVI of 2017 on the transparency of organisations receiving foreign support, which imposes certain enforceable obligations of registration, declaration and transparency on civil society organisations receiving foreign financial support. The law is the subject of infringement proceedings in Case C‑78/18, Commission v Hungary (Transparency of associations). 3 OJ 1994 L 336, p. 1. 4 ‘The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society’ (footnote in the original). 5 OJ 2019 L 87, p. 1. 6 Hungary Schedule of Specific Commitments, WTO Doc. GATS/SC/40 of 15 April 1994. 7 WTO Doc. S/C/W/273, pp. 166 and 167. With regard to entry into force, see the Communication of 7 March 2019 from the European Union to the Members of the WTO. 8 Hungary Schedule of Specific Commitments, WTO Doc. GATS/SC/40 of 15 April 1994, p. 19 (section 5.C.). 9 OJ 2007 C 364, p. 1. 10 OJ 2006 L 376, p. 36. 11 Judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C‑439/13 P, EU:C:2015:753, paragraph 37). 12 Judgment of 19 March 2002, Commission v Ireland (C‑13/00, EU:C:2002:184, paragraph 13). 13 Judgments of 25 February 1988, Commission v Greece (194/85 and 241/85, EU:C:1988:95); of 10 September 1996, Commission v Germany (C‑61/94, EU:C:1996:313); of 19 March 2002, Commission v Ireland (C‑13/00, EU:C:2002:184); of 7 October 2004, Commission v France (C‑239/03, EU:C:2004:598); and of 21 June 2007, Commission v Italy (C‑173/05, EU:C:2007:362). 14 Judgments of 30 April 1974, Haegeman (181/73, EU:C:1974:41, paragraphs 2/6); of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 7); and of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 30). 15 Judgments of 7 October 2004, Commission v France (C‑239/03, EU:C:2004:598, paragraph 25); of 16 November 2004, Anheuser-Busch (C‑245/02, EU:C:2004:717, paragraph 41); of 11 September 2007, Merck Genéricos — Produtos Farmacêuticos (C‑431/05, EU:C:2007:496, paragraph 33 et seq.); and of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 31 et seq.). 16 At that time, the European Union still shared that external competence with its Member States; see Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009 (EU:C:2009:739, paragraph 135). 17 See my Opinion in Commission v Council (C‑13/07, EU:C:2009:190, point 124). 18 See Council Decision (EU) 2019/485 of 5 March 2019 (OJ 2019 L 87, p. 1). Prior to the entry into force of the Treaty of Lisbon, the Court had ruled in Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009 (EU:C:2009:739) that that modification fell within the shared competence of the Union and its Member States and participation by the Member States was necessary. 19 See Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017 (EU:C:2017:376, paragraph 248). 20 The WTO dispute settlement procedure is laid down in the Understanding on Rules and Procedures governing the Settlement of Disputes (DSU) in Annex 2 to the WTO Agreement. It provides for the establishment of panels to settle certain disputes, which report to the Dispute Settlement Body (DSB). On that basis, it produces a final report, which is binding on the parties unless an appeal is made to the Appellate Body (AB) within 60 days. 21 See, for example, Article 6(1) of Annex IX to the United Nations Convention on the Law of the Sea, signed on 10 December 1982 at Montego Bay (United Nations Treaty Series, Vol. 1833, 1834 and 1835, p. 3). 22 The same provision is made, mutatis mutandis, in Article 46(2) of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLTIO) with regard to an international organisation’s internal distribution of competences. 23 Examples from the practice of the WTO dispute settlement organs: WTO Appellate Body Report of 5 June 1998, adopted by the DSB on 1 July 1998, WT/DS62/AB/R, WT/DS67/AB/R and WT/DS68/AB/R, European Communities — Computer Equipment, concerning certain Irish and British measures; WTO Appellate Body Report of 12 March 2001, adopted by the DSB on 5 April 2001, WT/DS135/AB/R, European Communities — Asbestos, concerning a French decree; most recently, WTO Appellate Body Report of 15 May 2018, WT/DS316/AB/RW, European Union — Large Civil Aircraft. 24 Judgments of 26 October 1982, Kupferberg (104/81, EU:C:1982:362, paragraphs 11 and 13); of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 11); of 19 March 2002, Commission v Ireland (C‑13/00, EU:C:2002:184, paragraph 15); and of 7 October 2004, Commission v France (C‑239/03, EU:C:2004:598, paragraph 26). 25 See Article 23(1) of the DSU [the WTO Dispute Settlement Understanding]. 26 See below, point 90 of this Opinion. 27 Judgments of 12 December 1972, International Fruit Company and Others (21/72 to 24/72, EU:C:1972:115); of 23 November 1999, Portugal v Council (C‑149/96, EU:C:1999:574); and of 9 January 2003, Petrotub and Republica (C‑76/00 P, EU:C:2003:4). 28 Judgment of 5 October 1994, Germany v Council (C‑280/93, EU:C:1994:367, paragraph 109). 29 See the first paragraph of Article 264 TFEU. 30 Judgment of 10 September 1996 (C‑61/94, EU:C:1996:313, paragraph 16). 31 Opinion of Advocate General Tesauro in Commission v Germany (C‑61/94, EU:C:1996:194, points 23 and 24). 32 See points 49 to 52 of this Opinion. 33 The Airbus dispute can be mentioned again as a prominent, current example. 34 See judgments of 22 June 1989, Fediol v Commission (70/87, EU:C:1989:254, paragraphs 19 to 22); of 7 May 1991, Nakajima v Council (C‑69/89, EU:C:1991:186, paragraph 31); of 30 September 2003, Biret International v Council (C‑93/02 P, EU:C:2003:517, paragraph 53); of 23 November 1999, Portugal v Council (C‑149/96, EU:C:1999:574, paragraph 49); and of 1 March 2005, Van Parys (C‑377/02, EU:C:2005:121, paragraph 40). 35 Judgments of 5 November 2002, Commission v Austria (C‑475/98, EU:C:2002:630, paragraph 35), and of 18 July 2007, Commission v Germany (C‑490/04, EU:C:2007:430, paragraph 25). 36 Judgment of 2 February 1988, Commission v Belgium (293/85, EU:C:1988:40, paragraph 20). 37 See Opinion of Advocate General Mischo in Commission v France (C‑1/00, EU:C:2001:467, point 57). See also, to that effect, judgment of 10 July 1985, Commission v Netherlands (16/84, EU:C:1985:309, paragraph 10). 38 Judgments of 2 February 1988, Commission v Belgium (293/85, EU:C:1988:40, paragraphs 13 and 14); of 2 July 1996, Commission v Luxembourg (C‑473/93, EU:C:1996:263, paragraphs 19 and 20); of 28 October 1999, Commission v Austria (C‑328/96, EU:C:1999:526, paragraph 51); and of 13 December 2001, Commission v France (C‑1/00, EU:C:2001:687, paragraphs 64 and 65). 39 In the case in which the judgment of 2 February 1988, Commission v Belgium (293/85, EU:C:1988:40) was delivered, the periods were 8 and 14 days; in Commission v France (C‑1/00, EU:C:2001:687), the periods were 15 days and 5 days; in Commission v Austria (C‑328/96, EU:C:1999:526), the periods were one week and 15 days; in the case in which the judgment of 31 January 1984, Commission v Ireland (74/82, EU:C:1984:34) was delivered, a period of five days was at issue. 40 Judgment of 10 July 1985, Commission v Netherlands (16/84, EU:C:1985:309, paragraph 10). 41 Judgment of 31 January 1984, Commission v Ireland (74/82, EU:C:1984:34, paragraph 13). 42 Judgment of 3 March 2016, Commission v Malta (C‑12/14, EU:C:2016:135, paragraph 24). 43 Judgment of 3 March 2016, Commission v Malta (C‑12/14, EU:C:2016:135, paragraph 26). 44 In such a case, the Court finds an infringement not only of the international treaty in question, but also of Article 216(2) TFEU (formerly Article 300(7) EC); see judgments of 19 March 2002, Commission v Ireland (C‑13/00, EU:C:2002:184), and of 7 October 2004, Commission v France (C‑239/03, EU:C:2004:598). 45 Judgments of 25 January 1979, Racke (98/78, EU:C:1979:14, paragraph 52), and of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 110). 46 Judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 110). 47 See point 59 of this Opinion. 48 See, to that effect, judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 49). 49 Hungary Schedule of Specific Commitments, WTO Doc. GATS/SC/40 of 15 April 1994, p. 19 (section 5.C.). See now the Consolidated Schedule of Specific Commitments of the European Union and its Member States of 15 March 2019, WTO Doc. S/C/W/273, pp. 166 and 167 (section 5.C.). 50 WTO Panel Report of 16 July 2012, adopted by the DSB on 31 August 2012, WT/DS413/R, China — Electronic Payment Services, section 7.658. ‘… [T]he special rule in Article XX:2 provides a simpler requirement: a Member need only make a single inscription of the measure under the market access column, which then provides an implicit limitation under national treatment.’ 51 WTO Panel Report of 16 July 2012, adopted by the DSB on 31 August 2012, WT/DS413/R, China — Electronic Payment Services, section 7.661: ‘… Article XX:2 provides … that the measure inscribed in the market access column encompasses aspects inconsistent with both market access and national treatment obligations … [This thus permits] China to maintain measures that are inconsistent with both Articles XVI and XVII. With an inscription of “Unbound” for subsector (d) in mode 1 under Article XVI, and a corresponding “None” for Article XVII, China has indicated that it is free to maintain the full range of limitations expressed in the six categories of Article XVI:2, whether discriminatory or not.’ 52 WTO Panel Report of 16 July 2012, adopted by the DSB on 31 August 2012, WT/DS413/R, China — Electronic Payment Services, section 7.652: ‘Unlike Article XVII, however, the scope of the market access obligation does not extend generally to “all measures affecting the supply of services”. Instead, it applies to six carefully defined categories of measures of a mainly quantitative nature. The issue thus arises whether the scope of these measures, and thus the extent of China’s absence of obligation with respect thereto, extends to discriminatory measures in the sense of Article XVII.’ 53 WTO Panel Report of 16 July 2012, adopted by the DSB on 31 August 2012, WT/DS413/R, China — Electronic Payment Services, section 7.663: ‘… Due to the inscription of “None”, China must grant national treatment with respect to any of the measures at issue that are not inconsistent with Article XVI:2’ (emphasis added). 54 See, mutatis mutandis, footnote 53. 55 See above, points 88 and 90 of this Opinion. 56 See above, points 107 to 109 of this Opinion. 57 This applies, for example, to the conclusion of an international treaty with US States, whose area of responsibility includes higher education. 58 See points 53 and 47 of this Opinion. 59 See also, in this respect, Opinion of Advocate General Saugmandsgaard Øe in Commission v Hungary (Usufruct over agricultural land) (C‑235/17, EU:C:2018:971, point 82). 60 To this effect, judgments of 6 March 2014, Siragusa (C-206/13. EU:C:2014:126, paragraph 25 et seq.), and of 10 July 2014, Julián Hernández and Others (C‑198/13, EU:C:2014:2055, paragraph 36 et seq.). 61 OJ 2007 C 303, p. 22. 62 See, with regard to the similarly worded Article 16 of the Charter, judgment of 22 January 2013, Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 47). 63 See points 116 and 119 of this Opinion. 64 See points 118 to 121 of this Opinion. 65 See also point 122 of this Opinion. 66 ECtHR, judgments of 23 June 2009, Mustafa Erdoğan v. Turkey (CE:ECHR:2009:0623JUD001708903), and of 15 April 2014, Hasan Yazıcı v. Turkey (CE:ECHR:2014:0527JUD000034604). 67 OJ 2007 C 303, p. 22. 68 ECtHR, judgment of 15 April 2014, Hasan Yazıcı v. Turkey (CE:ECHR:2014:0527JUD000034604, § 40). 69 See points 136 to 139 of this Opinion. 70 Judgment of 13 November 2003, Neri (C‑153/02, EU:C:2003:614, paragraph 39). 71 Judgments of 11 July 2002, Gräbner (C‑294/00, EU:C:2002:442, paragraph 38), and of 13 November 2003, Neri (C‑153/02, EU:C:2003:614, paragraph 41). 72 The fundamental freedoms are specific prohibitions of discrimination which thus prohibit only different treatment of comparable situations; see judgment of 14 February 1995, Schumacker (C‑279/93, EU:C:1995:31, paragraph 30). 73 The Court considered, for example, the prevention of serious offences as affecting one of the fundamental interests of society; see judgment of 13 July 2017, E (C‑193/16, EU:C:2017:542, paragraph 20). 74 Judgments of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 38), and of 30 September 2003, Inspire Art (C‑167/01, EU:C:2003:512, paragraph 97). 75 See, for example, judgments of 9 March 2017, Piringer (C‑342/15, EU:C:2017:196, paragraph 53), and of 14 November 2018, Memoria and Dall’Antonia (C‑342/17, EU:C:2018:906, paragraph 51). 76 Judgments of 11 September 2007, Commission v Germany (C‑318/05, EU:C:2007:495, paragraph 69); of 11 September 2007, Schwarz and Gootjes-Schwarz (C‑76/05, EU:C:2007:492, paragraph 48); and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 48). 77 Judgment of 11 December 2003, Schnitzer (C‑215/01, EU:C:2003:662, paragraphs 27 and 28). 78 See Chapter III of the Services Directive. 79 See, with regard to discriminatory character, point 158 of this Opinion. 80 See, mutatis mutandis, point 160 of this Opinion. 81 See, for example, Article 9(1) and (4), Article 10(2) and Article 11(1) of the Services Directive. 82 Judgments of 25 July 1991, Collectieve Antennevoorziening Gouda (C‑288/89, EU:C:1991:323, paragraphs 11 to 13); of 19 July 2012, Garkalns (C‑470/11, EU:C:2012:505, paragraph 37); and of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 43). 83 With regard to the parallel problem in respect of Article 14 of the Services Directive, see judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraph 40). For the arguments, see Opinion of Advocate General Szpunar in X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 99 et seq.). 84 Judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 118). See, by analogy, on the relationship between Article 15 of the Services Directive and Article 49 TFEU, judgment of 7 November 2018, Commission v Hungary (C‑171/17, EU:C:2018:881, paragraph 87). 85 In this case, Article 14(3) of the Charter takes precedence, as a lex specialis, over Article 16 of the Charter, which is also relied upon; see above, points 130 and 132 of this Opinion. 86 See points 170 to 175 of this Opinion. 87 See, to that effect, judgment of 1 December 2016, Daouidi (C‑395/15, EU:C:2016:917, paragraph 64 et seq.). See also judgment of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 66). 88 See, on this point, Opinions of Advocate General Saugmandsgaard Øe in Joined Cases SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2017:410, points 121 to 142), and Commission v Hungary (Usufruct over agricultural land) (C‑235/17, EU:C:2018:971, points 64 to 112). 89 See points 133 and 147 of this Opinion. 90 See points 134 and 148 of this Opinion. 91 See point 158 of this Opinion and judgment of 30 September 2003, Inspire Art (C‑167/01, EU:C:2003:512, paragraph 97). 92 See, to that effect, judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 161 et seq. and paragraph 165 et seq.). 93 See points 106 and 111 of this Opinion. 94 This is defined in the Agreement as a ‘genuine and sufficiently serious threat is posed to one of the fundamental interests of society’. 95 See, mutatis mutandis, point 160 and points 183 to 188 of this Opinion.