Provisional text
OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 26 March 2026 (1)
Case C‑117/25
Canal Sea Services SRL,
Maritime Pilot SRL,
Asociația Piloților Maritimi din România ‘Euxin Pilot’,
Black Sea Pilots SRL,
Asociația Piloților Maritimi ‘Trident’,
Black Waters SA,
Asociația Piloților Maritimi Independenți ‘Tomis’
v
Ministerul Transporturilor, Infrastructurii și Comunicațiilor,
Compania Națională ‘Administrația Porturilor Maritime’ SA,
other parties:
RJ,
NC,
FR
(Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania)
( Reference for a preliminary ruling – Regulation (EU) 2017/352 – Compulsory pilotage services for seagoing and seagoing-inland waterway vessels – National legislation limiting the provision of compulsory maritime pilotage services to public entities only – Exclusion of private economic operators previously authorised to provide such services – Concept of ‘State aid’ )
I.      Introduction
1.        This reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), forms part of an already well-developed line of case-law, which has led the Court to rule, on numerous occasions, on the compatibility with EU law of national rules governing the operation of port infrastructure or activities carried out there. (2) In the present case, the Court is asked to give a ruling on the conditions under which the pilotage service, consisting of guiding vessels when arriving in and leaving a port, has been entrusted exclusively to port authorities. Those conditions give rise to a number of questions relating in particular to the relationship between primary EU law and Regulation (EU) 2017/352 of the European Parliament and of the Council of 15 February 2017 establishing a framework for the provision of port services and common rules on the financial transparency of ports (3) and, more generally, whether that service is economic in nature or a public power.
2.        Thus, in Romania, Ordonanță Guvernului nr. 22/1999 privind administrarea porturilor și a căilor navigabile, utilizarea infrastructurilor de transport naval aparținând domeniului public, precum și desfășurarea activităților de transport naval în porturi și pe căile navigabile interioare (Government Order No 22/1999 concerning the management of ports and inland waterways, the use of maritime transport infrastructures belonging to the public domain, and the exercise of maritime transport activities in ports and on inland waterways), of 29 January 1999 (4) defines the pilotage service as a safety service, provided under the control of the State, through the Ministerul Transporturilor, Infrastructurii și Comunicațiilor (Ministry of Transport, Infrastructure and Communications; ‘the Ministry’), to all users, on a permanent, non-discriminatory, uniform and continuous basis under equal conditions of quality, duration and price. (5) It is for the Ministry to determine the ports, inland waterways, areas, parts of those areas and categories of vessels for which the pilotage service is compulsory. (6) It follows from Article 50 of that order (7) that the pilotage service may be organised in three ways, namely either by means of port authority pilots, or by means of specialised economic operators authorised on the basis of a contract concluded in a non-discriminatory manner with the authorities or, lastly, by the authorities granting specialised economic operators the right to perform the pilotage service.
3.        After initially entrusting the pilotage service to specialised economic operators such as Canal Sea Services SRL, Black Waters SA, Black Sea Pilots SRL and Maritime Pilot SRL in accordance with the second method referred to above, and then to pilots from the Autonomous Authority ‘Administrația Fluvială a Dunării de Jos’ Galați (‘AFDJ Galați’) in some of those ports, on 19 May 2020, the Ministry finally adopted Ordinul nr. 991/2020 pentru stabilirea porturilor și a căilor navigabile interioare pentru care serviciul de pilotaj al navelor maritime și fluviomaritime este obligatoriu și a modului de derulare a acestui serviciu (Decree No 991/2020 establishing the ports and inland waterways for which the pilotage service for seagoing and seagoing-inland waterway vessels is compulsory and the manner in which this service is to be carried out) (‘Decree No 991/2020’), by which it defined new detailed rules for the organisation of the compulsory pilotage service for seagoing and seagoing-inland waterway vessels.
4.        Thus, Articles 1to 3 of Decree No 991/2020 made the pilotage service for seagoing and seagoing-inland waterway vessels in certain ports (Constanța, Brăila, Galați, Tulcea and Sulina) and in certain circumstances compulsory from 1 January 2021. That service is now provided exclusively by pilots from public entities with the status of a public undertaking or an autonomous authority, namely the AFDJ Galați, the national company ‘Administrația Portuliror Maritime SA Constanța’
(‘the APM’) and the national company ‘Administrația Canalelor Navigabile’ SA, each in the ports or areas within its jurisdiction.
5.        Taking the view that Decree No 991/2020 infringed competition law, Article 107 TFEU and Regulation 2017/352 in so far as it creates a legal monopoly in the field of compulsory pilotage services for seagoing and seagoing-inland vessels, closes a competitive market, eliminates activities linked to maritime pilotage and undermines the rights and interests of pilots, Canal Sea Services and the other economic operators concerned, the professional associations of sea pilots and three pilots in their own name brought an action for annulment of Decree No 991/2020 before the Curtea de Apel Constanța (Court of Appeal, Constanța, Romania).
6.        On 22 December 2021, the Curtea de Apel Constanța (Court of Appeal, Constanța) dismissed that action. It thus held that the public pilotage service had been exempted from the application of competition rules by Regulation 2017/352, so that pilots were exempt from any commercial logic and their integrity was preserved in order to ensure the attainment of the objectives pursued of safety, security and environmental protection. Moreover, it took the view that Decree No 991/2020 had been able lawfully to restrict the right of the parties before it to provide pilotage services since the Romanian Competition Authority had found, inter alia, that Canal Sea Services, Black Sea Pilots and Maritime Pilot had infringed Article 101 TFEU by coordinating their competitive behaviour in a way that restricted competition on the market for pilotage services. (8)
7.        An appeal was lodged by the economic operators concerned, the professional associations and the pilots before the referring court, which sought the opinion of the European Commission (9) on the basis of Regulation (EU) 2015/1589. (10) In essence, the Commission held that the contested decree had granted the port authority an exclusive right to provide pilotage services in certain areas or certain ports; that measure was granted through State resources, was imputable to the State, conferred a selective advantage on the beneficiaries and was liable to affect trade between Member States; it was for the national court to determine whether the activity of providing pilotage services constituted an economic activity and whether it distorted competition.
8.        Thus, the referring court is uncertain as to whether the pilotage services in question constitute an ‘economic activity’ and, if so, whether the transfer of that service to public entities by Decree No 991/2020 is compatible with EU law. In particular, it asks whether the provision of that service may be excluded from the competition rules under Regulation 2017/352 or whether the way in which it is organised, as laid down by the decree at issue in the main proceedings, may constitute a State monopoly prohibited by Article 107 TFEU which could lead to an infringement of the freedom of establishment or the freedom to provide services.
9.        It is in those circumstances that the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and, by decision received at the Registry of the Court of Justice on 4 February 2025, to refer the following question to the Court of Justice for a preliminary ruling:
‘On the basis of the interpretation of Article 107(1) [TFEU] and of [Regulation
2017/352], does a measure adopted by a Member State aimed at ensuring that compulsory port pilotage services are carried out exclusively by certain State bodies – even though such services were previously also provided by other private (non-State) undertakings – establish a legal monopoly in accordance with Union law, constituting a permitted form of derogation from the competitive market, or, on the contrary, does this constitute State aid incompatible with the internal market, such as to exclude competition on the market and for the market?’
10.      Written observations were submitted by Canal Sea Services, the APM, the Romanian, Belgian, French and Italian Governments and the Commission.
II.    Analysis
11.      According to settled case-law, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. 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 beneficiary. Fourth, it must distort or threaten to distort competition. (11)
12.      In the context of the dispute in the main proceedings, the referring court asks the Court only, first, whether or not the port authorities, to which the pilotage service has been entrusted, carry out an economic activity and may therefore be classified as ‘undertakings’ within the meaning of Article 107(1) TFEU and, second, whether Decree No 991/2020, which granted the port authorities the exclusive right to provide pilotage services, has resulted in a
distortion of competition. (12)
13.      In my view, answering the question referred to the Court will require taking into account the significantly broader context than the sole question of whether the national measure at issue in the main proceedings must, or must not, be classified as ‘State aid’. At issue here is a decision by a Member State asserting that the market and economic forces have not been able to provide an efficient and safe service, with the result that it necessarily had to intervene in order to provide that service directly. In other words, the case concerns a decision to renationalise a service and create a legal monopoly. While there is nothing wrong with this, such an invasive decision must be fully in line with the fundamental principles of EU economic law. (13)
14.      Therefore, in order to provide a useful response to the referring court, it will be necessary to refer not only to Article 107 TFEU, but also potentially to Article 106 TFEU.
15.      With those considerations in mind, I propose to proceed as follows. Since the question referred for a preliminary ruling refers both to Regulation 2017/352 and to Article 107 TFEU, and since examination of the documents available to the Court reveals a number of ambiguities concerning the relationship between that regulation and that provision of primary law, it is necessary to clarify them immediately. It will then be necessary to establish that the port authorities to which the exclusive right to provide pilotage services has been granted may be regarded as undertakings, which will require determining whether or not that activity is economic in nature. Once I have concluded that it is economic in nature, and that those authorities are ‘undertakings’, it will still be necessary to examine the conditions under which that activity was entrusted exclusively to the port authorities concerned and, in particular, to determine whether those conditions led to a distortion of competition, necessary for the classification as ‘State aid’ within the meaning of Article 107(1) TFEU.
A.      The relationship between Regulation 2017/352 and Article 107 TFEU
1.      State of the debate before the national court
16.      It is apparent from the request for a preliminary ruling that the pilotage service was open to competition before the adoption of Regulation 2017/352.
17.      There has been a debate between the parties to the main proceedings as to the effects of the entry into force of that regulation. The appellants in the main proceedings appear to have focused their arguments, and their request for a preliminary ruling from the Court, on Article 107 TFEU. Regulation 2017/352 was relied on by the respondent in the main proceedings, which opposed the matter being referred to the Court. It argued that Article 107 TFEU was inapplicable precisely because that regulation exempted the pilotage service from the application of competition rules. That interpretation was also adopted by the appeal court, before which proceedings had been brought prior to those before the referring court.
That court ruled at first instance on the legality of Decree No 991/2020. Regulation 2017/352 also appeared in the Commission’s reasoning, as set out in the Commission Opinion, both at the stage of analysing the nature of the activity and at that of examining the legal monopoly resulting from the Romanian legislation.
18.      For its part, the referring court states that it is seeking to determine, first, whether the provision of the pilotage service is excluded from the competition rules under Regulation 2017/352 and, second, whether, under that regulation, the adoption of a measure to transfer the pilotage service to State-managed entities may constitute a State monopoly such as to exclude competition on the market and for the market, or aid that is incompatible with EU law.
2.      A regulation limited to establishing a framework for the provision of maritime port services
19.      Regulation 2017/352 is an act falling within the European Union’s transport policy. (14) It establishes a framework for the provision of port services and common rules on financial transparency and on port service and port infrastructure charges. (15) It follows on from the communication from the Commission entitled ‘Single Market Act II – Together for new growth’, in which the Commission emphasised that the attractiveness of maritime transport was dependent on the availability, efficiency and reliability of port services. (16) Easier access to the port services market was to improve the quality and efficiency of the services provided, contribute to a climate that is more favourable to investments in ports and promote maritime transport. (17) It was intended to apply only to maritime ports of the trans-European transport network. (18)
20.      Moreover, the establishment of a clear framework must help in ‘ensuring that the port’s own commercial strategy and investment plans … comply fully with competition rules. In particular, the transparency of financial relations allows a fair and effective control of State aid, hence preventing market distortion’. (19) It is also specified that Regulation 2017/352 ‘does not impose a specific model for the management of maritime ports and does not affect in any way the competence of Member States to provide, in conformity with Union law, non-economic services of general interest’ (20) and ‘should be without prejudice to the right of Member States to impose public service obligations related to port services’. (21) The competent authorities must be able to ‘grant … compensation for actions taken in fulfilment of the public service obligations provided that such compensation complies with the applicable State aid rules’. (22)
21.      Pilotage is one of the categories of services falling within the scope of Regulation 2017/352. (23) That regulation provides a definition of pilotage, which is understood as ‘the guidance service of a waterborne vessel by a pilot or a pilotage station in order to allow for safe entry or exit of the waterborne vessel in the waterway access to the port or safe navigation within the port’. (24) However, since the EU legislature wishes to ‘avoid potential conflicts of interests between such public interest functions and commercial considerations’, (25) Chapter
II of Regulation 2017/352 does not, in principle, apply to pilotage, although the Member States remain free to decide otherwise, provided that they duly inform the Commission. (26)
22.      As a result of that exclusion in principle, the provisions relating to the organisation of port services, minimum requirements for the provision of port services, the procedure to ensure compliance with the minimum requirements, limitations on the number of providers of port services, public service obligations, the internal operator and the safeguarding of employees’ rights do not apply to pilotage services. (27)
23.      The exclusion provided for in Article 10 of Regulation 2017/352 applies only to the provisions of Chapter
II of that regulation. Therefore, the provisions on financial transparency and autonomy contained in Chapter
III apply to pilotage services. The same applies to the general and final provisions of Chapter
IV. (28)
24.      Three sets of conclusions can be drawn from those considerations.
25.      First, the assertion by the respondent in the main proceedings before the referring court, which is also based on the findings of the appeal court that ruled at first instance on the legality of Decree No 991/2020, that Regulation 2017/352 exempted the pilotage service from the application of the competition rules, in general, and of Article 107 TFEU in particular, is vitiated by a manifest error of law.
26.      Second, the regulation does not impose any particular model as regards the conditions under which the pilotage service is provided. As the Commission has pointed out, Regulation 2017/352 did not have the effect of attributing to that service the prerogative of public power. The question of whether the activity transferred by Decree No 991/2020 to the three port authorities is economic in nature must be answered on the basis of primary EU law.
27.      Third
and lastly, and for the sake of completeness, there is nothing in the documents before the Court to suggest that Romania made use of the freedom conferred on Member States by Article 10(2) of Regulation 2017/352 to decide to make the pilotage service subject to the requirements of Chapter
II of that regulation. In its written observations, the Romanian Government merely stated that it had ‘taken into account’ Regulation 2017/352 when adopting Decree No 991/2020. Nor is it apparent from the Commission’s written observations that it had received any notification under that provision. Accordingly, where appropriate and for the purposes of further analysis, it should be considered that Chapter
II of Regulation 2017/352 does not apply to the pilotage service in Romania.
28.      I would point out that such a conclusion is, in any event, without prejudice to the obligation on Member States to organise the provision of that service in compliance with the rules, relating, in particular, to State aid, as stated repeatedly by the EU legislature in Regulation 2017/352. (29)
B.      The status of port authorities as ‘undertakings’ and the nature of the pilotage service
29.      It follows from the Court’s settled case-law that, for the purposes of classification as ‘State aid’, Article 107(1) TFEU presupposes, inter alia, the existence of an advantage conferred on an undertaking. First, for the purposes of the application of EU competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. (30) Second, any activity consisting in offering goods and services on a given market is an economic activity. (31) Classification as an ‘undertaking’ depends, therefore, on the nature of the activity concerned. (32)
30.      In order to determine whether the port authorities are ‘undertakings’, the analytical approach followed by the Court can be divided into four stages. The nature of the activity will be examined in the context of the examination of the second stage.
1.      The public or private status of the entity concerned has no effect
31.      In the first place, it should be borne in mind that the public or private status of the entity engaged in the activity in question, as defined by national law, has no bearing on the question as to whether or not that entity is an ‘undertaking’, nor can the way in which it is financed. (33) The State itself or a State entity may act as an undertaking. Furthermore, a legal entity, and inter alia a public entity, may be regarded as an undertaking in relation to only part of its activities, if the activities which form that part must be classified as ‘economic’ activities. (34)
32.      It should therefore be noted that the public nature of the port authorities to which Decree No 991/2020 entrusted the exclusive right to provide pilotage services in the areas defined for each of them does not, in itself, preclude recognition of their status as ‘undertakings’ within the meaning of Article 107(1) TFEU.
2.      The absence of a link between the pilotage service and the exercise of public powers
33.      In the second place, I would point out that activities which fall within the exercise of public powers are not of an economic nature justifying the application of the FEU Treaty rules of competition, in particular where the operation of infrastructure is inextricably linked to the exercise of functions which fall within the public task entrusted to the entity that operates it and where that entity acts in the exercise of public powers. (35) However, the fact that, for the exercise of part of its activities, an entity is vested with official powers does not prevent it from being characterised as an undertaking (36) provided that the activities connected with such powers are separable from those which are economic in nature. (37)
34.      Services which, without falling within the exercise of public powers, are carried out in the public interest and without a profit motive, have been classified as ‘economic’ activities. (38)
35.      Moreover, the economic nature of an activity is not called into question by the mere fact that a Member State chooses to remove that activity from the field of competition for reasons of public interest by creating a legal monopoly for an entity entrusted with exclusive rights. (39)
36.      I would add that since the finding of the exercise of public powers results in provisions of EU competition law being inapplicable, on the one hand, activities falling within the scope of such powers must be construed restrictively and, on the other, the classification of an activity as economic in nature is without prejudice to the possibility that it may fulfil a task of general interest, and is therefore subject to specific public service obligations through a service of general economic interest.
37.      In order to determine the nature of an activity, the case-law requires an examination of its nature, its aim and the rules to which it is subject. (40)
38.      As I have already had occasion to point out in another context, ports must be regarded as ‘undertakings’ if – and to the extent that – they actually carry out one or more economic activities. The Court of Justice and the General Court have held that, in certain circumstances, the commercial operation and construction of infrastructure, including port infrastructure, constitutes an economic activity for the purposes of the application of the competition rules. (41)
39.      In essence, the Romanian Government’s argument is that pilotage is an activity inextricably linked to the exercise of public powers, the purpose of which is not to maximise profit but to ensure standards for the provision of services for the purposes of navigational safety, the protection of port infrastructure and environmental protection. That government points out, in particular, the risks to navigational safety arising from the practice prior to Decree No. 991/2020. (42)
40.      Such an argument calls for two sets of comments.
41.      First of all, any past market failures cannot be decisive in determining the nature of the activity itself.
42.      Second, the pilotage service, by its nature, the rules to which it is subject and its purpose, does not appear to me to be inseparable from traffic control or safety which, themselves, form part of the essential functions of the State carried out through the port authorities.
43.      As regards its nature, it is apparent from the documents before the Court that the pilotage service entrusted to port authorities consists of providing mandatory assistance, in return for payment, to seagoing vessels when entering and leaving ports or between berths in the same port or when they are on inland waterways in order to ensure their safe movement for themselves and for other users of the port infrastructure. Those services are provided by pilots who must be transported by boat to the vessel to be assisted. Those pilots, who are experts in the specific features of each port area in which they specialise, go on board to guide the vessel by giving instructions to the captain.
44.      I note that that activity, as I have just described, does not involve the exercise of any legislative or administrative police powers, (43) which continue to fall within the exclusive prerogative of the State, through the Ministry.
45.      As regards the rules to which the pilotage service is subject, I note that the pilotage service is defined as a safety service which must be provided on a permanent, non-discriminatory, uniform and continuous basis under equal conditions of quality, duration and price. (44) Those conditions of service are not sufficient to exclude pilotage from being classified as an ‘economic activity’. I note, moreover, that, under Romanian law, provision is made for three methods of providing the service, (45) with the possibility of entrusting the pilotage service to private economic operators remaining open. The referring court itself described the pilotage service as being open to competition, before the adoption of Decree No. 991/2020. It seems to me that this is a particularly strong indication of the economic nature of that activity. (46)
46.      Lastly, as regards the purpose of the pilotage service, it is clearly linked to ensuring safe navigation in the port. However, safety is not the only aspect that needs to be taken into account. Pilotage also helps to maintain optimal traffic conditions when entering or leaving the port. Pilotage thus contributes to the fluidity of navigation and therefore to the competitiveness and attractiveness of the port area. (47) I would point out that the ports covered by Decree No 991/2020 are all maritime ports of the trans-European transport network, which are therefore of fundamental importance for intra-Community trade. (48) Pilotage is far from being devoid of economic significance.
47.      In those circumstances, and like the Commission, (49) I consider that a distinction must be drawn between, on the one hand, maritime traffic control and safety activities which, considered strictly and distinctly, fall within the powers of a public authority falling outside the scope of the rules of EU competition law and, on the other hand, the provision of a service that must comply with maritime traffic safety rules or that contributes to traffic safety. In other words, while the definition of safety rules, in essence, falls within the powers of a public authority, any subsequent activity subject to those rules or consisting of the implementation of those rules does not fall within the scope of those powers.
48.      In those circumstances, the pilotage service must be regarded as an economic activity.
3.      Identification of a specific activity
49.      In the third place, the classification as an ‘economic activity’ must always be related to a specific activity (50) and each of the different activities of a given entity must be examined. (51)
50.      In the context of the dispute in the main proceedings, that condition does not raise any difficulties. (52)
4.      The offer of goods and services on a given market
51.      In the fourth and last place, an economic activity consists in offering goods and services on a given market. (53) Services normally provided for remuneration are services that may be classified as ‘economic activities’, such remuneration being regarded as consideration for the service in question, (54) it being understood that an activity cannot, in principle, be regarded as economic if it does not generate, at least in the long term, revenue capable of turning a profit or at least of covering costs. (55)
52.      In this respect, the following should be noted.
53.      Subject to subsequent verification by the referring court, the Romanian legislation appears to provide that the pilotage services will be provided in return for payment. (56) The tariffs charged by the port authorities concerned must, admittedly, be approved by the National Supervisory Council for the Maritime Sector. (57) They are not fixed by law. (58) The authorities concerned retain a margin of discretion in setting prices. They are described by the APM as non-discriminatory and transparent. Those characteristics are similar to those of tariffs charged in the context of services of general economic interest, which are indeed economic activities, and, as such, are in principle subject to the law on State aid. (59)
54.      The port authorities to which the pilotage service has been entrusted appear to be registered in the national commercial register as profit-making undertakings. (60) That said, it is not clear from the documents before the Court that the port authorities concerned by Decree No. 991/2020 are pursuing a strictly profit-making objective when providing the pilotage service. In any event, it should be borne in mind that the fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an undertaking, since that offer exists in competition with that of other operators which do seek to make a profit. (61)
55.      The conditions under which the pilotage service was organised prior to the entry into force of Decree No. 991/2020 strongly support the finding that such operators do exist, some of which are, moreover, parties directly involved in the dispute in the main proceedings. The referring court itself confirms that the pilotage service was open to competition on the basis of contracts for the provision of services concluded on a non-discriminatory basis between private operators and the port authorities (62) after those operators had been authorised by the Ministry to provide the service concerned. (63) Moreover, while the Competition Authority found that there was a cartel between the economic operators involved in the market for pilotage services, (64) that is because, contrary to what the Romanian Government and APM maintain, there was indeed a market for those services occupied by competitors of the port authorities pursuing a profit-making objective.
56.      In my view, there is therefore no doubt that the pilotage service does indeed consist in the provision of a service on a market in competition with other economic operators.
5.      Interim conclusion
57.      Accordingly, it follows from the foregoing considerations that the pilotage service must be classified as an ‘economic’ activity. The port authorities to which that service has been entrusted exclusively are therefore undertakings within the meaning of Article 107(1) TFEU.
C.      Distortion of competition
58.      Assuming that the pilotage service is regarded, under Romanian law, as a public service, which is for the referring court to determine, (65) I note that a legal monopoly entrusted to a public undertaking responsible for that public service does not necessarily lead to a distortion of competition, and an advantage granted to the operator of an infrastructure subject to a legal monopoly may, in certain circumstances, not distort competition. The following cumulative conditions must be met: (i) the service is subject to a legal monopoly established in accordance with EU law; (ii) the legal monopoly not only excludes competition on the market, but also for the market; (iii) the service is not in competition with other services and (iv) where the service provider carries out activities on another market open to competition, cross-subsidisation must be excluded. (66)
59.      A legal monopoly exists when a given service is reserved by legislative or regulatory measures to an exclusive provider and it is clearly prohibited for any other operator to provide the service. The decision to close a market must be taken by the competent public authorities or entities in accordance with EU law.
60.      It is apparent from the documents before the Court that the State acted through the Ministry which adopted Decree No 991/2020, which therefore constitutes a regulatory measure. Although GO
No 22/1999 is still in force and continues to provide for the three permissible methods of providing pilotage services, (67) it must be noted that that decree had the effect of prohibiting private operators from carrying out their activities. Each of the three port authorities has been granted an exclusive right to provide the pilotage service in the areas under their respective jurisdiction. The Romanian Government itself acknowledges the re-establishment of a legal monopoly through the adoption of Decree No. 991/2020. (68)
61.      It remains to be determined whether that legal monopoly was established in accordance with EU law.
62.      In that regard, I would point out that Chapter
II of Regulation 2017/352 does not apply to pilotage services. The Commission infers from this that Article 56 TFEU is not applicable in the present case. Its argument is undoubtedly based on the fact that services in the field of transport are excluded from the scope of that provision, which can apply to those services only if an EU act has been adopted on the basis of provisions relating to transport and has made it applicable to those services, (69) which is not the case in respect of Regulation 2017/352.
63.      That said, although it is mentioned in Regulation 2017/352, which was itself adopted on the basis of Article 100 TFEU, I am not convinced that pilotage services, as such, can be regarded as a service for the transport of goods or passengers. (70) Therefore, an analysis under Article 56 TFEU could be considered. The applicability of Article 49 TFEU does not raise any issues. (71)
64.      In any event, the Court has already held that national legislation under which exclusive rights to carry on an economic activity are conferred on a single, private or public, operator, constitutes a restriction both of the freedom of establishment and of the freedom to provide services, in respect of which it must be assessed whether it may be justified by an overriding reason relating to the public interest and, if so, whether it is suitable for securing the attainment of the objective pursued and does not go beyond what is necessary in order to attain that objective. (72)
65.      Moreover, the services provided are clearly, in themselves, cross-border in nature (73) given the ‘international nature’ of the market in question. (74) The link between the situation at the heart of the main proceedings and the fundamental freedoms referred to certainly stems from the fact that each of the ports concerned belongs to the trans-European port network established by Regulation No 1315/2013, a network which concentrates the ‘overwhelming majority of Union maritime traffic’. (75) It can therefore safely be concluded that the recipients of the pilotage service are not exclusively Romanian. (76) Lastly, the dispute in the main proceedings is clearly cross-border in nature, given the place where the pilotage service is carried out and its economic importance. (77) The APM’s assertion that no private operator from another Member State would be interested in providing pilotage services in Romania (78) appears to be irrelevant.
66.      In order to justify any infringement of a fundamental freedom, the Romanian Government relies on considerations relating to maritime traffic safety. (79) That justification must be accepted, since it is clear from the Court’s settled case-law that the aim of ensuring safety in port waters constitutes an overriding reason in the public interest. (80)
67.      It remains to be determined whether the restriction of the freedom to provide services and the freedom of establishment which I have just described is nevertheless suitable for attaining the objective pursued and does not go beyond what is necessary to attain that objective.
68.      In order to determine whether a restriction satisfies the condition of proportionality, it is for the Member State wishing to rely on an objective capable of justifying a restriction of a fundamental freedom or a right to provide the national court with all the evidence of such a kind as to enable it to be satisfied that the measure concerned does indeed meet the requirements deriving from the principle of proportionality. (81) However, the Court may provide guidance based on the documents available to it in order to enable the national court to give judgment. (82)
69.      Decree No 991/2020 must be both appropriate for pursuing the legitimate objective relied on and necessary and proportionate to that end.
70.      It is apparent from the documents before the Court that, by adopting Decree No 991/2020, the Romanian authorities essentially intended to respond to the shortcomings arising from the previous arrangements for the organisation of the pilotage service, which led to an increase in navigation incidents, an increase in the risk to safety due to the confusion between pilotage and towing services, an increase in costs, the exposure of pilots to commercial pressure and discontinuity in the provision of that service. According to that logic, optimised safety in port waters therefore necessarily required the elimination of competition in the pilotage market.
71.      It is interesting to note that, while the Romanian Government believed that improving safety required removing the actors responsible for the deterioration of the situation, the Ministry did not consider it problematic to grant exclusive rights to the port authority APM, in respect of which the Competition Authority had nevertheless found that there had been an infringement of competition law and Article 102 TFEU (83) and, therefore, incidentally, acknowledged responsibility for the worsened safety situation. The idea of a correlation between the improvement in the safety situation and the grant of an exclusive right to the port authorities is, at the very least, weakened by such a finding. (84)
72.      Faced with an open but failing market, the Romanian authorities had a wide range of less restrictive measures available to them than opting for the radical solution of closing the market by granting exclusive rights. As the Commission argued, the first of those measures consisted in applying effective sanctions such as those decided by the Competition Authority. Those authorities could also intervene from a regulatory perspective to supervise and regulate the profession of pilot in order to ensure that the pilots could act independently. (85) Moreover, in view of the classification of the port authorities as undertakings, the claim that the pilots performing the pilotage service are exempt from any commercial pressure because they are part of the port authority needs to be verified.
73.      Consequently, subject to subsequent verification by the referring court, I very much doubt that the legal monopoly established for the benefit of port authorities is proportionate to the objective of safety in port waters relied on. An unjustified restriction of the freedom of establishment and of the freedom to provide services should be found. Since the legal monopoly does not appear to be consistent with EU law, it is not necessary to continue with the analysis of the other conditions referred to in point 58 of this Opinion.
74.      However, the following should be pointed out to the referring court.
75.      Even if the existence of a distortion of competition were to be established, it would still be possible to find that the measures laid down by Decree No 991/2020 avoids classification as ‘State aid’ if the four conditions laid down in the judgment in
Altmark (86) are satisfied, which it will be for the referring court to verify, if necessary, with the assistance of the Court of Justice by means of a new preliminary ruling.
III. Conclusion
76.      Having regard to all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) as follows:
Article 107(1) TFEU
must be interpreted as meaning that
a public entity which has been granted, by a Member State, an exclusive right to provide pilotage services in the port falling within its jurisdiction must be regarded as being engaged in an economic activity and, therefore, as an undertaking.
In order to determine whether State aid exists, it is for the referring court to verify
that the other conditions necessary for that purpose are satisfied, in particular that relating to distortion of competition. In that context, that court will have to satisfy itself that the condition that a monopoly must have been established in a manner consistent with EU law is satisfied. It will be for that court to examine, in particular, the grant of exclusive rights by the decree at issue in the main proceedings in the light of the freedom to provide services and the freedom of establishment, and to satisfy itself that it does not create an unjustified restriction.
1      Original language: French.
2      See, for example, judgments of 17 May 1994, Corsica Ferries (C‑18/93, EU:C:1994:195); of 20 February 2001, Analir and Others (C‑205/99, EU:C:2001:107); of 30 September 2003, Colegio de Oficiales de la Marina Mercante Española (C‑405/01, EU:C:2003:515); of 10 June 2010, Fallimento Traghetti del Mediterraneo (C‑140/09, EU:C:2010:335); of 17 March 2011, Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia (C‑128/10 and C‑129/10, EU:C:2011:163); of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902); and of 22 January 2026, Vlaams Gewest (C‑413/24, EU:C:2026:30).
3      OJ 2017 L 57, p. 1, as amended by Regulation (EU) 2020/697 of the European Parliament and of the Council of 25 May 2020 (OJ 2020 L 165, p. 7) (‘Regulation 2017/352’).
4      Republished in Monitorul Oficial al României, Part
I, No 511, of 22 July 2010 (‘GO
No 22/1999’).
5      See Articles 47 and 48 of GO
No 22/1999.
6      See Article 49 of GO No 22/1999.
7      That provision reads as follows:
‘(1)      The pilotage of seagoing and seagoing-inland waterway vessels in ports where this service has been made compulsory shall be carried out by the port authorities:
(a)      by means of port authority pilots;
(b)      by means of specialised economic operators authorised in accordance with Article 19(2) on the basis of a contract concluded in a non-discriminatory manner between the authorities and those economic operators;
(c)      by the authorities granting specialised economic operators the right to perform the pilotage service, in accordance with the law, pursuant to Article 19(2).
…
(4)      The authorities shall publish the list of authorised economic operators with whom they have concluded pilotage contracts, the tariffs charged and the facilities granted by them.
(5)      The economic operators referred to in paragraph 1 shall pay a fee set by the authorities for the use of the port infrastructure.
(6)      The detailed rules for the operation of the pilotage service for seagoing vessels shall be approved by decree of the Minister for Transport.’
8      Competition Authority Decision No 51/2016 of 10 August 2016 (available at https://www.consiliulconcurentei.ro/wp-content/uploads/2017/02/decizia_51.pdf) (‘the Competition Authority decision’). See, in particular, Articles 1 and 2 of that decision.
9      See Opinion of the European Commission sj.c
(2024) 4262312 of 31 May 2024 in Case No 458/36/2020 Canal Sea Services v Ministerul Transporturilor, Infrastructurii și Comunicațiilor (‘the Commission Opinion’).
10      Council Regulation of 13 July 2015 laying down detailed rules for the application of Article 108
[TFEU] (OJ 2015 L 248, p. 9). See Article 29 of that regulation.
11      See, among many, judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 19 and the case-law cited).
12      I would point out that, although the Commission has exclusive jurisdiction to assess the compatibility of aid with the internal market, subject to review by the EU Courts, that fact does not preclude a national court from referring to the Court of Justice a question on the interpretation of the definition of ‘aid’ (see judgment of 3 March 2021, Poste Italiane and Agenzia delle entrate – Riscossione (C‑434/19 and C‑435/19, EU:C:2021:162, paragraph 33)).
13      See judgment of 23 April 1991, Höfner and Elser (C‑41/90, EU:C:1991:161).
14      In accordance with its legal basis, which is Article 100(2) TFEU.
15      See Article 1(1) of Regulation 2017/352.
16      See communication from the Commission COM(2012) 573 final of 3 October 2012, cited in recital 3 of Regulation 2017/352.
17      See recital 4 of Regulation 2017/352.
18      See Article 1(4) of Regulation 2017/352. Those ports are listed in Annex II to Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU (OJ 2013 L 348, p. 1). It is apparent from the entry for Romania in the table contained in List
2 of that annex that all the ports concerned by Decree No 991/2020 are included therein.
19      Recital 6 of Regulation 2017/352. Emphasis added.
20      Recital 10 of Regulation 2017/352. See also recital 24 of that regulation.
21      Recital 23 of Regulation 2017/352.
22      Recital 32 of Regulation 2017/352. Emphasis added. It also follows from that recital that, where public service obligations qualify as services of general economic interest, it is necessary to comply with the requirements of Commission Decision 2012/21/EU, of 20 December 2011, on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ 2012 L 7, p. 3) and Commission Regulation (EU)
No 360/2012 of 25 April 2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest (OJ 2012 L 114, p. 8), and the communication from the Commission entitled ‘European Union framework for State aid in the form of public service compensation’ (OJ 2012 C 8, p. 15). More broadly, there are numerous references to competition rules, effective competition, the competitive market, a level playing field and market distortion as well as to State aid in the preamble to Regulation 2017/352: see, inter alia, recitals 34, 40 to 46 and 55 of that regulation.
23      See Article 1(2) of Regulation 2017/352.
24      Article 2(8) of Regulation 2017/352. Only deep-sea pilotage services do not appear to fall within the scope of that regulation: see recital 8
thereof.
25      Recital 39 of Regulation 2017/352.
26      See Article 10 of Regulation 2017/352.
27      See, respectively, Articles 3 to 9 of Regulation 2017/352, together with Article 21 of that regulation, as follows from Article 10(1) thereof, which concerns transitional measures.
28      With the exception of Article 21 of Regulation 2017/352: see footnote 27 to this Opinion.
29      On the lack of impact of Regulation 2017/352 on the assessments carried out by the Commission on the basis of Articles 107 and 108 TFEU, see judgment of 30 April 2019, UPF v Commission (T‑747/17, EU:T:2019:271, paragraph 140).
30      See judgment of 23 April 1991, Höfner and Elser (C‑41/90, EU:C:1991:161, paragraph 21).
31      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 21).
32      See judgment of 11 June 2020, Commission and Slovak Republic
v
Dôvera zdravotná poist’ovňa (C‑262/18 P and C‑271/18 P, EU:C:2020:450, paragraph 29).
33      See judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraph 107), and of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 23 and the case-law cited).
34      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 23 and the case-law cited). See also judgments of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449, paragraphs 37 and 38); of 7 November 2019, Aanbestedingskalender and Others v Commission (C‑687/17 P, EU:C:2019:932, paragraphs 18 and 19); and of 24 March 2022, GVN v Commission (C‑666/20 P, EU:C:2022:225, paragraph 71).
35      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 25 and the case-law cited).
36      See judgment of 24 October 2002, Aéroports de Paris v Commission (C‑82/01 P, EU:C:2002:617, paragraph 74).
37      See judgment of 24 October 2002, Aéroports de Paris v Commission (C‑82/01 P, EU:C:2002:617, paragraph 77). In the same vein, see judgments of 12 July 2012, Compass‑Datenbank (C‑138/11, EU:C:2012:449, paragraphs 35 to 38), and of 18 January 2024, Lietuvos notarų rūmai and Others (C‑128/21, EU:C:2024:49, paragraph 62).
38      See judgment of 6 September 2011, Scattolon (C‑108/10, EU:C:2011:542, paragraph 44).
39      See judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 56).
40      See judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 49 and the case-law cited).
41      See my Opinion in Stockholms Hamn (C‑401/24, EU:C:2025:415, point 10, and the case-law cited). See, with regard to the economic activities that may be carried out by ports, as illustrated by the Commission’s decision-making practice, judgments of 30 April 2019, UPF v Commission (T‑747/17, EU:T:2019:271, paragraph 53); of 30 April 2019, Chambre de commerce et d’industrie métropolitaine Bretagne-Ouest (port de Brest) v Commission (T‑754/17, EU:T:2019:270, paragraph 65),
and of
20 September 2019, Port autonome du Centre et de l’Ouest and Others v Commission (T‑673/17, EU:T:2019:643, paragraph 63). See also, with regard to the economic nature of the grant of access to ports and the grant of concessions for State-owned areas and docks, judgment of 20 December 2023, Autorità di sistema portuale del Mar Ligure occidentale and Others v Commission (T‑166/21, EU:T:2023:862, paragraphs 81 and 82).
On the contrary, the Court has held that the anti-pollution surveillance carried out in an oil port is a task in the public interest which forms part of the essential functions of the State as regards protection of the environment in maritime areas and, accordingly, is not of an economic nature (see judgment of 18 March 1997, Diego Calì & Figli (C‑343/95, EU:C:1997:160, paragraphs 22 and 23 and the case-law cited)). It has also held that activities relating to the control and supervision of air space are typically powers of a public authority (see judgment of 19 January 1994, SAT Fluggesellschaft (C‑364/92, EU:C:1994:7, paragraph 30)). See also judgment of 19 December 2012, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission (C‑288/11 P, EU:C:2012:821, paragraph 42)). Again recently, the Court reiterated that activities such as waterway traffic control and safety or waterway policing must be regarded as inextricably linked to the exercise of public powers (see judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 26)). See also my Opinion in Stockholms Hamn (C‑401/24, EU:C:2025:415, point 18).
42      The Romanian Government relies, in a general manner, on discontinuities and risks to navigational safety that occurred during the period in which pilotage services were provided by authorised operators (see point 43 of the written observations of that government).
43      See, by analogy, judgment of 25 January 2018, BSCA v Commission (T‑818/14, EU:T:2018:33, paragraphs 100 to 102).
44      See Article 48 of GO No 22/1999.
45      See Article 50 of GO No 22/1999, cited in point 2 of this Opinion.
46      Moreover, by applying competition rules to pilotage services, the Court, implicitly,
but necessarily, recognised the economic nature of such an activity: see judgment of 17 May 1994, Corsica Ferries (C‑18/93, EU:C:1994:195, paragraph 38 et seq.). The EU legislature did the same by not ruling out that pilotage may be economic in nature in Regulation 2017/352 (see, in that regard, paragraph 36 of the Commission Opinion).
47      See, by analogy, judgment of 25 January 2018, BSCA v Commission (T‑818/14, EU:T:2018:33, paragraph 103).
48      See, in particular,
recital 2 of Regulation No 1315/2013.
49      See, in particular,
paragraph 30 of the Commission Opinion.
50      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 27 and the case-law cited).
51      See judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 44).
52      I would note that the other activities of the port authorities are not set out in detail in the documents available to the Court.
53      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 29).
54      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 30).
55      See judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraph 32).
56      According to Article 48 of GO
No 22/1999 referred to by the Commission in paragraph 41 of its written observations.
57      It follows from paragraph 52 of the Romanian Government’s written observations that the National Supervisory Council for the Maritime Sector approves the rules justifying the tariffs applied by the authorities for the provision of safety services, which pilotage services appear to fall within, and the breakdown of those tariffs by expenditure items. That council is also responsible for verifying that they are proportionate to the cost of the service provided. However, it is not apparent from that information that the port authorities covered by Decree No. 991/2020 are deprived of any control over the setting of the tariffs applied to pilotage services.
58      In the case of a non-economic activity, the charging of remuneration determined by law can be regarded as inseparable from that activity and prove incapable of altering the nature of the activity in question: see judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449, paragraph 42). Nor is such a circumstance sufficient, in itself, to exclude the activity in question from classification as an ‘economic activity’ (see judgment of 12 July 2012, Compass-Datenbank (C‑138/11, EU:C:2012:449, paragraph 49)).
59      See, to the same effect, judgment of 20 September 2019, Port autonome du Centre et de l’Ouest and Others v Commission (T‑673/17, EU:T:2019:643, paragraph 82).
60      See paragraph 45 of Canal Sea Services’ written observations.
61      See judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 46).
62      See page 3 of the request for a preliminary ruling.
63      See paragraph 5 of the Commission’s written observations.
64      See the Competition Authority decision referred to in footnote 8
to this Opinion.
65      The Romanian Government describes the service as being in the ‘public interest’ (see paragraph 24 of its observations).
66      See, to that effect, judgment of 6 October 2021, Scandlines Danmark and Scandlines Deutschland
v Commission (C‑174/19 P and C‑175/19 P, EU:C:2021:801, paragraph 130 and the case-law cited). See also paragraph 188 of the Commission Notice on the notion of State aid referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ 2016 C 262, p. 1).
67      See point 45 of this Opinion.
68      See paragraph 40 of the Romanian Government’s written observations.
69      See judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 352 to 356).
70      I doubt that providers of pilotage services can truly be regarded as ‘transport operators’. The freedom to provide services in the field of transport is defined as a right for hauliers to exercise freedom to provide transport services (see judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 358)).
71      Since, in any event, freedom of establishment applies directly to transport: see judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 361). See, with regard to freedom of establishment more generally, paragraph 362 et seq. of that judgment.
72      See judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraphs 164 and 165). See, also, judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 117).
73      The recent case-law of the Court has indeed emphasised that the provisions on the freedom of establishment and the freedom to provide services do not, in principle, apply to a situation which is confined in all respects within a single Member State (see judgment of 2 March 2023, Bursa Română de Mărfuri (C‑394/21, EU:C:2023:146, paragraph 48)).
74      To paraphrase the judgment of 8 March 2001, Gourmet International Products (C‑405/98, EU:C:2001:135, paragraph 39).
75      See recital 7 of Regulation 2017/352. Within that network, Romanian ports are of fundamental commercial importance. The port of Constanța, the largest port on the Black Sea, is a strategic hub.
76      See, by analogy, judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 41).
77      See, by analogy, judgments of 17 July 2008, ASM Brescia (C‑347/06, EU:C:2008:416, paragraph 62), and of 21 March 2019, Unareti (C‑702/17, EU:C:2019:233, paragraphs 28 and 30).
78      See page 12 of the APM’s written observations.
79      See paragraph 42 of the Romanian Government’s written observations.
80      See judgment of 22 January 2026, Vlaams Gewest (C‑413/24, EU:C:2026:30, paragraph 30 and the case-law cited).
81      See judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 101 and the case-law cited).
82      See judgment of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 124 and the case-law cited).
83      See Articles 3 and 7 of the Competition Authority decision.
84      I also note that the Competition Authority decision found that a number of rules in relation to the towing service had been infringed. In order to ensure consistency in the response provided by the Romanian authorities, it would be useful to determine whether a closure of the towing market has also been decided.
85      Article 11 of the Competition Authority decision also called for clarification of the legislative framework for pilotage and towing services.
86      Judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), as reaffirmed on numerous occasions by the Court and, most recently at the time of writing this Opinion, in the judgment of 20 November 2025, Stockholms Hamn (C‑401/24, EU:C:2025:902, paragraphs 41 and 42). The examination of the question of whether the measure at issue should be categorised as ‘State aid’, within the meaning of Article 107 TFEU, which may involve the verification of the conditions laid down in that judgment occurs before the examination of a measure of aid under Article 106(2) TFEU. That question must be resolved before the one which consists in examining, where necessary, if aid that is incompatible with the internal market is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU (see judgment of 3 March 2021, Poste Italiane and Agenzia delle entrate – Riscossione (C‑434/19 and C‑435/19, EU:C:2021:162, paragraph 35 and the case-law cited)).