OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 27 January 2016 ( 1 )

Case C‑464/14

SECIL — Companhia Geral de Cal e Cimento SA

v

Fazenda Pública

(Request for a preliminary ruling from the Tribunal Tributário de Lisboa (Tax Court, Lisbon, Portugal))

‛Reference for a preliminary ruling — Euro-Mediterranean Association Agreement — EC-Tunisia Agreement — EC-Lebanon Agreement — Free movement of capital — Restrictions’

I – Introduction

1. This request for a preliminary ruling concerns the interpretation of Articles 63 TFEU and 64 TFEU and of Articles 31, 34 and 89 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC ECSC of the Council and of the Commission of 26 January 1998 ( 2 ) (‘the EC-Tunisia Agreement’) and Articles 31, 33 and 85 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006 ( 3 ) (‘the EC-Lebanon Agreement’).

2. As opposed to earlier cases which have raised questions regarding the interpretation of Euro-Mediterranean Agreements, the present case raises questions on the free movement of capital and, therefore, concerns the application of both the provisions of the FEU Treaty and those of the aforementioned agreements. The Court will therefore have to address, for the first time, the question whether one of those sets of provisions might take precedence over the other.

II – Legal context

A – EU law

1. The FEU Treaty

3. Article 63(1) TFEU provides: ‘Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.’

4. Article 64(1) TFEU, which introduces a ‘standstill’ clause, provides as follows: ‘The provisions of Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate — establishment, the provision of financial services or the admission of securities to capital markets. …’

5. Article 65(1) to (3) TFEU provides: ‘1. The provisions of Article 63 shall be without prejudice to the right of Member States: (a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested; (b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security. 2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Treaties. 3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63.’

2. The EC-Tunisia Agreement

6. Article 31 of the EC-Tunisia Agreement, contained in Title III, entitled ‘Right of establishment and services’, is worded as follows: ‘1. The Parties agree to widen the scope of the Agreement to cover the right of establishment of one Party’s firms on the territory of the other and liberalisation of the provision of services by one Party’s firms to consumers of services in the other. 2. The Association Council will make recommendations for achieving the objective described in paragraph 1. In making such recommendations, the Association Council will take account of past experience of implementation of reciprocal most-favoured-nation treatment and of the respective obligations of each Party under the General Agreement on Trade in Services annexed to the Agreement establishing the [World Trade Organisation (WTO)], hereinafter referred to as “the GATS”, particularly those in Article V of the latter. 3. The Association Council will make a first assessment of the achievement of this objective no later than five years after the Agreement enters into force.’

7. Article 34 of that agreement, contained in Chapter I, entitled ‘Current payments and movement of capital’, of Title IV, entitled ‘Payments, capital, competition and other economic provisions’, provides: ‘1. With regard to transactions on the capital account of balance of payments, [the Union] and Tunisia shall ensure, from the entry into force of this Agreement, that capital relating to direct investments in Tunisia in companies formed in accordance with current laws can move freely and that the yield from such investments and any profit stemming therefrom can be liquidated and repatriated. 2. The Parties shall consult each other with a view to facilitating, and fully liberalising when the time is right, the movement of capital between [the Union] and Tunisia.’

8. Article 89 of that agreement, contained in Chapter I of Title VIII, entitled ‘Institutional, general and final provisions’, provides: ‘Nothing in the Agreement shall have the effect of: — extending the fiscal advantages granted by either Party in any international agreement or arrangement by which it is bound, — preventing the adoption or application by either Party of any measure aimed at preventing fraud or the evasion of taxes, — opposing the right of either Party to apply the relevant provisions of its tax legislation to taxpayers who are not in an identical situation as regards their place of residence.’

3. The EC-Lebanon Agreement

9. Article 31 of the EC-Lebanon Agreement, contained in Chapter 1, entitled ‘Current payments and movement of capital’, of Title IV, entitled ‘Payments, capital, competition and other economic provisions’, provides: ‘Within the framework of the provisions of this Agreement, and subject to the provisions of Articles 33 and 34, there shall be no restrictions between [the Union] of the one part, and Lebanon of the other part, on the movement of capital and no discrimination based on the nationality or on the place of residence of their nationals or on the place where such capital is invested.’

10. Article 33, also in Chapter 1 of that agreement, provides: ‘1. Subject to other provisions in this Agreement and other international obligations of [the Union] and Lebanon, the provisions of Articles 31 and 32 shall be without prejudice to the application of any restriction which exists between them on the date of entry into force of this Agreement, in respect of the movement of capital between them involving direct investment, including in real estate, establishment, the provision of financial services or the admission of securities to capital markets. 2. However, the transfer abroad of investments made in Lebanon by [Union] residents or in [the Union] by Lebanese residents and of any profit stemming therefrom shall not be affected.’

11. Article 85 of that agreement, contained in Title VIII, entitled ‘Institutional, general and final provisions’, provides: ‘As regards direct taxation, nothing in this Agreement shall have the effect of: (a) extending the fiscal advantages granted by either Party in any international agreement or arrangement by which it is bound; (b) preventing the adoption or application by either Party of any measure aimed at preventing fraud or the evasion of taxes; (c) opposing the right of either Party to apply the relevant provisions of its tax legislation to taxpayers who are not in an identical situation, in particular as regards their place of residence.’

B – Public international law

12. Under Article 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331; ‘the Vienna Convention’), entitled ‘Scope of the present Convention’, the Vienna Convention applies to Treaties between States.

13. Article 30 of that Convention, entitled ‘Application of successive treaties relating to the same subject matter’ provides: ‘1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs. … 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) As between States parties to both treaties the same rule applies as in paragraph 3; (b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.’

C – Portuguese law

14. Article 46 of the 2009 version of the Código do imposto sobre o rendimento das pessoas colectivas (Code on Corporation Tax, ‘the CIRC’), entitled ‘Elimination of the economic double taxation of distributed profits’, provided as follows: ‘1. In the determination of the taxable profits of commercial companies, civil law companies having a commercial form, cooperatives and public undertakings, with their head office or effective management in Portuguese territory, income included in the tax base that corresponds to distributed profits shall be deducted, provided that the following requirements are met: a) the company distributing the profits has its head office or effective management in the same territory and is subject to and not exempt from corporation tax or is subject to the tax referred to in Article 7; b) the beneficiary entity is not covered by the fiscal transparency regime provided for in Article 6; c) the beneficiary entity has a direct holding in the capital of the company distributing the profits of not less than 10% or with an acquisition value of not less than EUR 20 million, and that holding had been in its ownership for an uninterrupted period of one year on the date on which the profits were made available to it or, if it had been in its ownership for a shorter period, is retained until such time as that period is completed. … 5. The provisions of paragraph 1 shall also apply where an entity resident in Portuguese territory holds part of the share capital, under the terms and conditions referred to in that paragraph, of an entity resident in another Member State of the European Union, provided that both entities meet the requirements laid down in Article 2 of [Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6)]. 6 The provisions of paragraphs 1 to 5 are also applicable to the income included in the tax base that corresponds to the distributed profits attributable to a permanent establishment located in Portuguese territory of an entity resident in another Member State of the European Union which holds part of the share capital, under the terms and conditions referred to therein, of an entity resident in a Member State, provided that both entities meet the requirements laid down in Article 2 of Directive 90/435/EEC. … 8 The deduction referred to in paragraph 1 shall be only 50% of the income included in taxable profits made up of: a) distributed profits, where none of the requirements laid down in subparagraphs (b) and (c) of that paragraph is met, as well as income received under a profit-sharing arrangement between members of a partnership, provided that, in either case, the requirement laid down in paragraph 1(a) is met; b) profits distributed by an entity resident in another Member State of the European Union, where that entity meets the requirements laid down in Article 2 of Directive 90/435, and none of the requirements laid down in paragraph 1(c) are met. …’

15. As regards the tax incentives for investment arising from an agreement concluded between the Portuguese State and a taxpayer, Article 41(5)(b) of the Estatuto dos Beneficios Fiscais (Tax Advantages Scheme, ‘the EBF’), in the version of the EBF in force in 2009, provided as follows: ‘5 Persons promoting the investment projects … may be granted the following tax advantages: … b) elimination of double economic taxation, under the terms laid down in Article 46 of the CIRC for the term of the contract, where the investment is made in the form of the incorporation or acquisition of foreign companies.’

16. Article 42 of the EBF, entitled ‘Elimination of the double economic taxation of profits distributed by companies resident in the Portuguese-speaking African countries and in the Democratic Republic of Timor-Leste’, in the version of the EBF in force in 2009, provides as follows: ‘1. The deduction provided for in Article 46(1) of the [CIRC] shall apply to profits distributed to resident entities by subsidiaries resident in Portuguese-speaking African countries and Timor-Leste, provided that the following requirements are met: a) the entity in receipt of the profits is subject to and not exempt from IRC and the subsidiary is subject to and not exempt from an income tax similar to IRC; b) the recipient entity has held, directly, at least 25% of the subsidiary’s capital for at least two years; c) the profits distributed derive from profits returned by the subsidiary which have been taxed at a rate of at least 10% and do not result from activities generating passive earnings, that is royalties, capital gains and other earnings from securities, income from immovable property located outside the company’s country of residence, earnings from the insurance business that derive essentially from the insurance of assets located outside the company’s territory of residence or the insurance of persons not resident in that territory and earnings from operations forming part of the banking business which are not directly targeted at the market in that territory.’

17. Article 10, entitled ‘Dividends’ and contained in Chapter III, ‘Taxation of income’, of the Convention between the Portuguese Republic and the Republic of Tunisia for the avoidance of double taxation with respect to taxes on income, signed in Lisbon on 24 February 1999, ( 4 ) provides as follows: ‘1. Dividends paid by a company resident in one Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, those dividends may also be taxed in the Contracting State in which the company paying the dividends is resident, in accordance with the law of that State, although, where the recipient of the dividends is their beneficial owner, the tax thus paid shall not exceed 15% of the gross amount of the dividends. …’

18. Article 25 of that Convention, entitled ‘Exchange of information’ and contained in Chapter V, ‘Special provisions’, provides as follows: ‘1. The competent authorities of the Contracting States shall exchange the information necessary for applying the provisions of this Convention or those of the internal legislation of the Contracting States relating to the taxes covered by the Convention in so far as the taxation for which they provide is not contrary to the Convention. Article 1 does not restrict the exchange of information. The information received by a Contracting State shall be treated as confidential, in the same manner as information obtained under the internal laws of that State, and may be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Convention. Such persons or authorities shall use such information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. 2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation: a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.’

III – The main proceedings and the questions referred for a preliminary ruling

19. SECIL — Companhia Geral de Cal e Cimento SA (‘SECIL’) is a public limited company under Portuguese law with its registered office in Outão (Portugal). It is subject, for tax purposes, to the special regime for the taxation of groups of companies.

20. SECIL is a cement producer which was founded in 1930. In 2009, it held 98.72% of the share capital of Société des Ciments de Gabés SA (‘Ciments de Gabés’), with its registered office in Tunis (Tunisia), and 51.05% of the share capital of Ciments de Sibline, S.A.L. (‘Ciments de Sibline’), with its registered office in Beirut (Lebanon).

21. In 2009, SECIL received dividends in the amount of EUR 6288683.39 from Ciments de Gabés and EUR 2022478.12 from Ciments de Sibline.

22. After each subsidiary was taxed, one in Tunisia and the other in Lebanon, SECIL declared its dividends in Portugal, where no mechanism to eliminate or mitigate economic double taxation was applied.

23. SECIL was thus obliged to pay the Fazenda Pública (Portuguese Treasury) a total of EUR 4587208.20 in corporation tax.

24. On 29 May 2012, SECIL brought an administrative appeal before the Diretor de Finanças de Setúbal (Head of the Setúbal Tax Office) on the ground that the taxation of the dividends received from Ciments de Gabés and Ciments de Sibline was unlawful in so far as the Portuguese law was infringing the EC-Tunisia and EC-Lebanon Agreements and the FEU Treaty by precluding the application of the regime for the elimination of economic double taxation.

25. That appeal was dismissed by decision of 10 October 2012, which was notified to SECIL by letter of 17 October 2012.

26. SECIL challenged that decision before the Tribunal Tributário de Lisboa (Tax Court, Lisbon) claiming, in essence, that the refusal of the Portuguese tax authorities to apply the regime for the elimination of economic double taxation in force in Portugal in financial year 2009, provided for in Article 46(1) and (8) of the CIRC and in Article 41(5)(b) and Article 45 of the EBF, did not comply either with public international law or with EU law, as that regime was being applied only to the profits distributed by companies resident for tax purposes in Portugal, in Member States of the Union or the European Economic Area (EEA), in Portuguese-speaking African countries and in Timor-Leste. According to SECIL, that difference in treatment with respect to profits from Tunisia and from Lebanon infringed the EC-Tunisia and EC-Lebanon Agreements as well as Articles 49 TFEU and 63 TFEU.

27. The Tribunal Tributário de Lisboa (Tax Court, Lisbon) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Does Article 31 of the [EC-Tunisia] Agreement … constitute a provision which is clear, precise and unconditional and, as such, directly applicable, and from which it must be inferred that the right of establishment is applicable to the present case? (2) If so, does the right of establishment under that provision entail the consequences which [SECIL] claims, in the sense that, if that right is not to be infringed, it requires that the full deduction mechanism provided for in Article 46(1) of the CIRC be applied to the dividends which the applicant received from its subsidiary in Tunisia? (3) Does Article 34 of the [EC-Tunisia] Agreement constitute a provision which is clear, precise and unconditional and, as such, directly applicable, and from which it must be inferred that the free movement of capital is applicable to the present case and must therefore be regarded as covering the investment made by the applicant? (4) If so, does the free movement of capital under that provision have the implications which [SECIL] claims, inasmuch as it requires that the full deduction mechanism established in Article 46(1) of the CIRC be applied to the dividends which the applicant received from its subsidiary in Tunisia? (5) Does it result from Article 89 of the [EC-Tunisia] Agreement that the foregoing questions must be answered in the affirmative? (6) Is the restrictive treatment of the dividends distributed by [Ciments de Gabés] justified, given that the framework for cooperation established in Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation does not exist in the case of [the Republic of] Tunisia [OJ 1977 L 336, p. 15]? (7) Do the provisions of Article 31 and Article 33(2) of the [EC-Lebanon] Agreement constitute a rule which is clear, precise and unconditional and, as such, directly applicable, and from which it must be inferred that the free movement of capital is applicable to the present case? (8) If so, does the free movement of capital under those provisions have the implications which [SECIL] claims, inasmuch as it requires that the full deduction mechanism established in Article 46(1) of the CIRC be applied to the dividends which the applicant received from its subsidiary in Lebanon? (9) Does it result from Article 85 of the [EC-Lebanon] Agreement that the foregoing questions must be answered in the affirmative? (10) Is the restrictive treatment of the dividends distributed by [Ciments de Sibline] justified, given that the framework for cooperation established in Council Directive 77/799 … does not exist in the case of [the Republic of] Lebanon? (11) Are the provisions of Article 56 EC (now Article 63 TFEU) applicable to the present case and, if so, does the free movement of capital established in that provision have the effect of requiring the application to the dividends distributed in the 2009 financial year by [Ciments de Gabés] and [Ciments de Sibline] to [SECIL] of the full deduction mechanism provided for in Article 46(1) of the CIRC or, in the alternative, of the partial deduction mechanism provided for in Article 46(8) of the CIRC? (12) Even if the free movement of capital is considered to be applicable in the present case, may the non-application to the dividends in question of the mechanisms for the elimination or mitigation of economic double taxation provided for in the Portuguese legislation in force at that time be regarded as being justified by the fact that the framework for cooperation established in … Directive 77/799 … does not exist in the case of [the Republic of] Tunisia and [the Republic of] Lebanon? (13) Does the “standstill” clause contained in Article 57(1) EC (now Article 64 TFEU) preclude the application of the free movement of capital, together with the consequences claimed by the applicant? (14) Must the “standstill” clause contained in Article 57(1) EC (now Article 64 TFEU) not be applied on account of the introduction in the meantime of the scheme of tax benefits for contractual investments established in Article 41(5)(b) of the EBF and the scheme provided for in Article 42 of the EBF for dividends from the PALOP [(Portuguese-speaking African Countries)] and East Timor?’

IV – The procedure before the Court

28. This request for a preliminary ruling was lodged at the Court on 8 October 2014. Written observations have been submitted by SECIL, by the Portuguese, Greek and Swedish Governments and by the European Commission.

29. Pursuant to Article 61(1) of the Rules of Procedure of the Court, the parties were invited to answer the Court’s questions on the relationship between the FEU Treaty and the Euro-Mediterranean Agreements, which they did.

30. A hearing was held on 18 November 2015, at which SECIL, the Portuguese Government and the Commission presented oral argument.

V – Analysis

A – Preliminary observations

31. This request for a preliminary ruling has a characteristic which is rather unusual in the case-law of the Court in that it raises the issue of the concurrent applicability of the provisions of the FEU Treaty and of the Euro-Mediterranean Agreements, namely Articles 49 TFEU, 63 TFEU and 64 TFEU and Articles 31, 34 and 89 of the EC-Tunisia Agreement and Articles 31, 33 and 85 of the EC-Lebanon Agreement.

32. In that regard, it should be noted that the Court has consistently held that an agreement concluded by the Union and one or more third countries is, as far as the Union is concerned, an act of one of the institutions of the Union, within the meaning of indent (b) of the first paragraph of Article 267 TFEU, that as from its entry into force the provisions of such an agreement form an integral part of the EU legal system and that, within the framework of that system, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement. ( 5 )

33. On that basis, the Court has often had occasion to answer questions referred for a preliminary ruling concerning the interpretation of provisions of Euro-Mediterranean Agreements, namely the EEC-Algeria, ( 6 ) EC-Morocco, ( 7 ) EC-Israel and EC-PLO, ( 8 ) EC-Lebanon, ( 9 ) EC-Egypt, ( 10 ) and EC-Tunisia Agreements. ( 11 )

34. However, none of those cases raised the issue of the concurrent applicability of the provisions of the FEU Treaty and of the Euro-Mediterranean Agreements.

35. The same is true of the cases which raised questions as to the interpretation of the EEC-Greece, ( 12 ) EEC-Turkey ( 13 ) and EC-Hungary ( 14 ) Association Agreements and of the EC-Russia Partnership and Cooperation Agreement. ( 15 )

36. However, the issue of the concurrent applicability of the provisions on the free movement of capital in the FEU Treaty and the provisions on that same freedom in the EEA Agreement has been the subject of several requests for preliminary rulings ( 16 ) and direct actions. ( 17 )

37. Nevertheless, that case-law will serve little purpose in the present case, since the Court has often held that ‘the rules … prohibiting restrictions on the movement of capital and discrimination are identical, so far as concerns relations between the States party to the EEA Agreement, irrespective of whether they are members of the European Union or members of EFTA, to the rules under EU law regarding relations between the Member States’. ( 18 )

38. Given that the level of legal protection afforded by the FEU Treaty and the EEA Agreement is the same in that regard, it is of little importance whether the applicable provisions are those of the FEU Treaty or those of the EEA Agreement. Therefore, the question of whether or not there is a hierarchy or order of priority of those provisions was not raised in those cases, where the FEU Treaty and the EEA both applied.

39. That is not the case in this instance, where the applicable provisions of the EC-Tunisia and EC-Lebanon Agreements are not the same as the provisions of the FEU Treaty. First, even if the provisions of those agreements concerning the freedom of establishment and the free movement of capital have direct effect, their scope is limited by Article 89 of the EC-Tunisia Agreement and Article 85 of the EC-Lebanon Agreement, which limit the scope of those agreements in the field of direct taxation. Secondly, unlike the FEU Treaty, the EC-Tunisia Agreement does not contain a ‘standstill’ clause limiting the scope of the free movement of capital, and the transfer abroad of profits stemming from investments made in Lebanon by natural or legal persons established in the Union is excluded from the scope of the ‘standstill’ clause provided for in Article 33 of the EC-Lebanon Agreement.

40. The question therefore arises whether the application of the provisions of the EC-Tunisia and the EC-Lebanon Agreements precludes the application of the provisions of the FEU Treaty or vice versa.

41. According to settled case-law of the Court, ‘[agreements concluded by the Union] have primacy over secondary [Union] legislation’ ( 19 ) and, the Court adds, ‘that primacy at the level of [EU] law would not … extend to primary law’. ( 20 )

42. However, public international law does not provide for a hierarchy among different treaties concluded by States. As Professor Charles Rousseau wrote, ‘formulated for the State order, based on the hierarchy of bodies and rules, [Kelsen’s doctrine, according to which an inferior rule which is contrary to a superior rule is invalid or may be annulled, or a sanction may be imposed on the body responsible for adopting it] is powerless to resolve conflicts between rules of international law, since the majority of rules of international law are rules established by agreement, emanating from separate and non-hierarchical bodies’, ( 21 ) with the exception of Article 103 of the Charter of the United Nations ( 22 ) and rules of jus cogens ( 23 ) which take precedence over any other conflicting rule of international law. ( 24 )

43. Since the EU legal order is consistent with Kelsen’s doctrine and establishes a hierarchy of norms according to which the FEU Treaty takes precedence over public international law, that hierarchy of norms may be invoked only if the provisions of the various applicable treaties are incompatible, unless the apparent conflict can be resolved by means of interpretation. ( 25 )

44. In my opinion, there are several factors which do not support the conclusion that such incompatibility exists between the provisions of the FEU Treaty and the EC-Tunisia and EC-Lebanon Agreements. On the contrary, like the provisions of the FEU Treaty on the main freedoms of movement, and as indicated in the second indent of Article 1(2) of the EC-Tunisia Agreement and Article 1(2)(b) of the EC-Lebanon Agreement, those agreements aim to ‘establish the conditions for the gradual liberalisation of trade in goods, services and capital’.

45. As the Court has held on several occasions, the aim of the Euro-Mediterranean Agreements ‘is to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of [the third State in question] and helping to strengthen relations between those parties’. ( 26 )

46. Consequently, by introducing provisions for the freedom of establishment and the free movement of capital, the EC-Tunisia and EC-Lebanon Agreements are in line with the underlying principles of the FEU Treaty, and do not pursue objectives which are inconsistent with those pursued by that treaty.

47. The aforementioned incompatibility cannot, furthermore, arise from the provisions of Article 89 of the EC-Tunisia Agreement and Article 85 of the EC-Lebanon Agreement.

48. Those provisions are simply intended i) not to extend to nationals of other party States the benefits granted by double taxation conventions concluded by one of the parties to the Euro-Mediterranean Agreement, ii) not to prevent the adoption and application of any measures to tackle tax evasion and tax avoidance and iii) not to impede the application by the contracting parties of provisions of tax legislation pursuant to which taxpayers are to be treated differently depending on their place of residence.

49. Article 65(1) TFEU incorporates the same objectives and, although it does not make reference to double taxation conventions, there is nothing in the FEU Treaty which would allow a Tunisian or Lebanese national to obtain a benefit provided for by a double taxation convention concluded between the Portuguese Republic and another State. ( 27 )

50. Similarly, the fact that the EC-Tunisia Agreement does not contain a ‘standstill’ clause limiting the scope of the free movement of capital and the fact that the transfer abroad of profits stemming from investments made in Lebanon by persons resident in the Union is excluded from the scope of the ‘standstill’ clause provided for in Article 33 of the EC-Lebanon Agreement are not contrary to Article 64 TFEU.

51. The ‘standstill’ clause provided for in that article, in favour of restrictions to the free movement of capital already in force on 31 December 1993, does not impose any obligation to maintain them and forbids the extension of the scope of those restrictions.

52. As the Swedish Government submits in its written response to the questions raised by the Court, there is therefore no need to invoke the hierarchy of norms. Thus, it is necessary to examine whether the provisions of those agreements are the only ones applicable under the principle lex posterior derogat legi priori.

53. It is not only a general principle of law whose existence in EU law has been recognised by several Advocates General of the Court, ( 28 ) but also a principle of international law, codified in Article 30(1), (3) and (4) of the Vienna Convention on the Law of Treaties, concluded in Vienna on 23 May 1969. ( 29 )

54. In my opinion, in the present case, the rule codified in Article 30(3) of the Vienna Convention is applicable, ( 30 ) which makes it necessary to determine which of the two treaties pre-dates the other.

55. The EC-Tunisia and EC-Lebanon Agreements, in so far as the relevant provisions are concerned, must be considered as post-dating the FEU Treaty, even though they were concluded before the entry into force of the Treaty of Lisbon. After all, as regards the free movement of capital, the FEU Treaty merely reproduced the provisions of the earlier treaty. More specifically the prohibition of ‘all restrictions on the movement of capital between Member States and between Member States and third countries’, ( 31 ) as we know it today, dates from 1992, ( 32 ) before the EC-Tunisia and EC-Lebanon Agreements were concluded.

56. It follows from the foregoing that, under Article 30(3) of the Vienna Convention, since all the parties to the earlier treaty, namely, the FEU Treaty, are also parties to the later treaty, namely the EC-Tunisia and EC-Lebanon Agreements, the provisions of the FEU Treaty are applicable only in so far as they have not been replaced by those of the EC-Tunisia and EC-Lebanon Agreements.

57. That interpretation is consistent with the view taken by Advocate General Jääskinen in point 28 of his Opinion in Établissements Rimbaud (C‑72/09, EU:C:2010:235) that, in a case, such as the case at issue, which falls within the scope of the free movement of capital, ‘the principles of lex posterior derogat legi priori and lex specialis derogat legi generali seem to preclude any application of Article [64](1) [TFEU] to relations between the Member States and the Principality of Liechtenstein’. Thus, the application of Article 40 of the EEA Agreement which, like the EC-Tunisia Agreement, did not include a ‘standstill’ clause, precluded the application of the ‘standstill’ clause laid down in the FEU Treaty. ( 33 )

B – The first, second, third and seventh questions referred for a preliminary ruling

58. By its first, second, third and seventh questions, the referring court asks whether Article 31 of the EC-Tunisia Agreement and Article 30 of the EC-Lebanon Agreement ( 34 ) (providing for the right of establishment and freedom to provide services), on the one hand, and Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement (providing for the free movement of capital), on the other hand, have direct effect.

1. The freedom in question in the case in the main proceedings

59. Those questions must be preceded by the question whether the present case falls within the scope of the freedom of establishment or of the free movement of capital.

60. Although that preliminary question has not, until now, been raised in relation to the Euro-Mediterranean Agreements, there is, as regards Articles 49 TFEU (freedom of establishment) and 63 TFEU (free movement of goods), a body of settled case-law of the Court which may be applied in this case.

61. According to that case-law, ‘the tax treatment of dividends may fall within Article 49 TFEU on freedom of establishment and Article 63 TFEU on the free movement of capital’. ( 35 )

62. According to the Portuguese Government, the present case falls exclusively within the scope of the freedom of establishment provided for in Article 31 of the EC-Tunisia Agreement and Article 30 of the EC-Lebanon Agreement because SECIL exercises decisive influence over its subsidiaries Ciments de Gabés and Ciments de Sibline.

63. However, as the Commission observes, the Portuguese legislation at issue in the case in the main proceedings makes no distinction between dividends received by a resident company on the basis of a shareholding that confers definite influence over the decisions of the company paying the dividends and enables its activities to be determined, and dividends received on the basis of a shareholding not conferring such influence.

64. Nevertheless, ‘national rules relating to the tax treatment of dividends from a third country which do not apply exclusively to situations in which the parent company exercises decisive influence over the company paying the dividends must be assessed in the light of Article 63 TFEU. A company resident in a Member State may therefore rely on that provision in order to call into question the legality of such rules, irrespective of the size of its shareholding in the company paying dividends established in a third country (see, to this effect, judgment in A, C‑101/05, EU:C:2007:804, paragraphs 11 and 27).’ ( 36 )

65. Therefore, as regards the FEU Treaty, the present case falls within the scope of the free movement of goods.

66. That case-law seems to me to be capable of being applied to the Euro-Mediterranean Agreements which contain, like the FEU Treaty, provisions on the right of establishment and on the free movement of capital.

67. I share the Commission’s view that the present case falls not within the scope of the right of establishment provided for in Article 31 of the EC-Tunisia Agreement and Article 30 of the EC-Lebanon Agreement, but within the scope of the free movement of capital provided for, respectively, by Articles 34 and 31 of those agreements. Therefore, the first, second and seventh questions need not be answered in so far as they concern the right of establishment.

2. The scope of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement

68. It is necessary to ascertain whether the case at issue in the main proceedings, which concerns the tax treatment of dividends paid by Ciments de Gabés and Ciments de Sibline to their shareholder SECIL, falls within the scope of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement.

69. In that connection, I would observe that although Article 31 of the EC-Lebanon Agreement imposes a general prohibition on ‘restrictions … on the movement of capital’, Article 34 of the EC-Tunisia Agreement limits that freedom so that ‘direct investments in Tunisia in companies formed in accordance with current laws can move freely and … the yield from such investments and any profit stemming therefrom can be liquidated and repatriated’.

70. In interpreting the concept of ‘direct investment’ in Article 64(1) TFEU, the Court has held that ‘[that] concept … concerns investments of any kind undertaken by natural or legal persons and which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which that capital is made available in order to carry out an economic activity’. ( 37 )

71. Given that ‘the objective of establishing or maintaining lasting economic links presupposes that the shares held by the shareholder enable him, either pursuant to the provisions of the national laws relating to companies limited by shares or in some other way, to participate effectively in the management of that company or in its control’, ( 38 ) it seems to me beyond doubt that an investment such as SECIL’s investment in the share capital of Ciments de Gabés since 2000, which in 2009 amounted to a 98.72% holding in its share capital, largely fulfils those criteria.

72. Likewise, in international law, there is a similar definition of the concept of ‘investment’ in the Convention on the Settlement of Investment Disputes: ‘it is generally considered, in legal literature, that investment entails contributions, a certain period of performance of the contract and the sharing of operational risks … According to the preamble to the [Convention on the Settlement of Investment Disputes], there is also a criterion of contribution to the economic development of the host State of the investment’. ( 39 )

73. The present case therefore falls within the scope of application of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement

3. The direct effect of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement

74. It must be noted that, as the Court held in paragraph 25 of the judgment in Gattoussi (C‑97/05, EU:C:2006:780), in relation to Article 64(1) of the EC-Tunisia Agreement, ‘according to well-established case-law, a provision in an agreement concluded by the Communities with a non-member country must be regarded as having direct effect where, regard being had to its wording and to the purpose and nature of the agreement, the provision lays down a clear and precise obligation which is not subject, in its implementation or its effects, to the adoption of any subsequent measure’. ( 40 )

75. First, under Article 34(1) of the EC-Tunisia Agreement, ‘the [Union] and Tunisia shall ensure … that capital relating to direct investments in Tunisia in companies formed in accordance with current laws can move freely and that the yield from such investments and any profit stemming therefrom can be liquidated and repatriated’. ( 41 )

76. Article 31 of the EC-Lebanon Agreement provides that ‘there shall be no restrictions between the [Union] of the one part, and Lebanon of the other part, on the movement of capital and no discrimination based on the nationality or on the place of residence of their nationals or on the place where such capital is invested’. ( 42 )

77. I take the view, like SECIL and the Commission, that those provisions are clear, precise and unconditional in so far as they lay down a very specific obligation as to the outcome to be achieved without the need for any additional measure to be adopted in order to make them enforceable.

78. As demonstrated by the Portuguese Government in its written observations, the clarity, precision and unconditional nature of those provisions are even more evident if those provisions are compared with the provisions of the agreements at issue on the right of establishment, which are indisputably of a general nature.

79. Article 31 of the EC-Tunisia Agreement and Article 30 of the EC-Lebanon Agreement contain merely an ‘agreement to agree’ on the scope of protection to grant to nationals of the European Union, the Republic of Lebanon and the Republic of Tunisia. To that effect, those provisions are limited to setting the objective that the parties undertake to pursue and determine the procedure for implementing that objective.

80. That conclusion is not called into question by Article 34(2) of the EC-Tunisia Agreement, which provides that ‘the Parties shall consult each other with a view to facilitating, and fully liberalising when the time is right, the movement of capital between the [Union] and Tunisia’. ( 43 )

81. As claimed by the Commission, that provision covers only movements of capital other than direct investments which are governed by paragraph 1 of that article, such as, for example, the provision of financial services and the admission of securities to capital markets. Given that the present case concerns a direct investment covered by paragraph 1 of that article, paragraph 2 has no bearing on the direct effect of paragraph 1.

82. Secondly, having regard to the purpose and nature of the EC-Tunisia and EC-Lebanon Agreements, which both transpose in their respective Article 1(1) the Court’s ruling in paragraph 27 of its judgment in Gattoussi (C‑97/05, EU:C:2006:780), I take the view that the establishment under Article 1(1) of those agreements of an association between the European Union and its Member States, of the one part, and the Republic of Tunisia and the Republic of Lebanon, of the other part, is an additional reason to accept that the purpose and nature of the agreements are compatible with the direct effect of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement.

83. For those reasons, I share the view of SECIL, the Swedish Government and the Commission that Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement have a direct effect which SECIL may invoke before the referring court.

C – The fifth and ninth questions referred for a preliminary ruling

84. By its fifth and ninth questions, the referring court is seeking to determine the scope of Article 89 of the EC-Tunisia Agreement and Article 85 of the EC-Lebanon Agreement in order to establish whether they cover national legislation such as that at issue in the case in the main proceedings, which does not permit the full or partial deduction, as appropriate, of dividends from companies with their head office or effective management outside the Union or the EEA.

85. The first indent of Article 89 of the EC-Tunisia Agreement and Article 85(a) of the EC-Lebanon Agreement provide that those agreements are not to have the effect of extending the fiscal advantages granted by a Member State in a double taxation convention.

86. Unlike the Portuguese Government, which answers the question concerning the first indent of Article 89 of the EC-Tunisia Agreement on the basis of the double taxation convention which it signed with the Republic of Tunisia, I share the Commission’s view that the purpose of that provision is to prevent a rule laid down in a double taxation convention concluded between the Portuguese Republic and a State other than the Republic of Tunisia from being extended to a Tunisian resident whose State of residence is not a party to that convention.

87. However, SECIL is not seeking to obtain an advantage granted by any double taxation convention which the Portuguese Republic signed with a State other than the Republic of Tunisia.

88. The same applies to Article 85(a) of the EC-Lebanon Agreement.

89. Under the second indent of Article 89 of the EC-Tunisia Agreement and Article 85(b) of the EC-Lebanon Agreement, the parties to those agreements may adopt or apply any measure aimed at preventing tax evasion and tax avoidance.

90. However, since no allegations of tax evasion and tax avoidance have been made in the present case, those provisions do not apply.

91. Finally, under the third indent of Article 89 of the EC-Tunisia Agreement and Article 85(c) of the EC-Lebanon Agreement, the Portuguese tax authorities may apply the relevant provisions of their tax legislation to taxpayers who are not in an identical situation as regards their place of residence.

92. According to the Portuguese Government, it is permitted, under those provisions, to draw a distinction between taxpayers on the basis of their residence and the place where their capital is invested.

93. I do not concur with that interpretation of those provisions, whereby there exists an additional factor which could justify a difference in treatment, namely the place where the capital is invested.

94. Moreover, SECIL is a company which is resident in Portugal and, as such, the provisions at issue prohibit any discrimination against it based on the place of residence of its subsidiaries.

95. On that point, I would recall the settled case-law of the Court ‘according to which the situation of a corporate shareholder receiving foreign-sourced dividends is comparable to that of a corporate shareholder receiving nationally-sourced dividends in so far as, in each case, the profits made are, in principle, liable to be subject to a series of charges to tax’. ( 44 )

96. Consequently, I propose that the Court’s answer to the fifth and ninth questions should be that national legislation such as that at issue in the case in the main proceedings, which does not permit the full or partial deduction, as appropriate, of dividends from companies with their head office or effective management outside the Union or the EEA, cannot be based either on Article 89 of the EC-Tunisia Agreement or on Article 85 of the EC-Lebanon Agreement.

D – The fourth, sixth, eighth and tenth questions referred for a preliminary ruling

97. By its fourth, sixth, eighth and tenth questions, the referring court asks whether Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement must be interpreted as precluding legislation of a Member State, such as that at issue in the case in the main proceedings, under which the right to the elimination of the economic double taxation of distributed profits is granted only where the company distributing the profits has its head office or effective management in Portuguese territory or is resident in another Member State of the Union or the EEA and, if so, what conclusions should be drawn from it.

1. The existence in the Portuguese legislation at issue of a restriction on the free movement of capital guaranteed by Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement

98. As I mentioned recently, in point 27 of my Opinion in Timac Agro Deutschland (C‑388/14, EU:C:2015:533), in the context of direct taxation and fundamental freedoms, the Court examines the existence of discrimination under the guise of a restriction, namely, an impediment to fundamental freedoms arising from a difference in treatment between taxpayers in objectively comparable situations or from the identical treatment of taxpayers in different situations.

99. This allows the Member States to justify the measure at issue based on one or more of the overriding reasons in the public interest established in case-law on the basis of which it is normally impossible to justify discrimination, since discrimination may be justified only by the reasons expressly provided for in the FEU Treaty, namely, public policy, public security and public health, which are of little relevance in the field of taxation.

100. In that regard, it is clear from the settled case-law of the Court that national measures ‘which are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States’ interfere with the free movement of capital. ( 45 )

101. As the Court ruled in paragraph 46 of the judgment in Test Claimants in Class IV of the ACT Group Litigation (C‑374/04, EU:C:2006:773), ‘in order to determine whether a difference in tax treatment is discriminatory, it is … necessary to consider whether, having regard to the national measure at issue, the companies concerned are in an objectively comparable situation. According to well-established case-law, discrimination is defined as treating differently situations which are identical, or treating in the same way situations which are different’.

102. As to the prevention of double economic taxation, the Court has ruled on several occasions that Article 63 TFEU requires ‘a Member State which has a system for preventing economic double taxation as regards dividends paid to residents by resident companies to accord equivalent treatment to dividends paid to residents by non-resident companies’. ( 46 )

103. In this case, as stated by the referring court, under Article 46 of the CIRC, the right to the elimination of double economic taxation of distributed dividends is granted only to Portuguese companies which meet certain minimum requirements as regards the size of the holding in the capital of the company paying the dividends, and the value and duration of that holding. ( 47 ) That elimination takes the form of a full deduction of the dividends in question from the taxable profits of the Portuguese companies. Pursuant to that provision, a partial deduction of 50% is to apply where one of those minimum requirements is not met.

104. However, that entitlement to full or partial deduction is granted only where the company distributing the dividends has its head office or effective management in Portuguese territory or is resident in another Member State of the EU or the EEA.

105. By contrast, companies receiving dividends from a company which has, like Ciments de Gabés and Ciments de Sibline, its head office or effective management in a third State, such as Tunisia and Lebanon, are subject to corporation tax at a rate of 23%, unless a lower rate applies under a double taxation convention.

106. It is clear from the request for a preliminary ruling that the Portuguese Republic has not concluded such a convention with the Republic of Lebanon and that Article 10(2) of the convention concluded with the Republic of Tunisia provides for a maximum rate of 15%.

107. It follows from the foregoing that the effective tax rate on dividends is fixed (at a maximum of 15% for dividends originating in Tunisia and 23% for dividends originating in Lebanon) while the rate for dividends originating in Portugal, the EU or the EEA is either 0% (full deduction) or 11.5% (partial deduction of 50%).

108. There is, therefore, a difference in treatment between Portuguese taxpayers depending on the origin of the dividends they receive.

109. Moreover, there is no doubt that SECIL is in a situation which is objectively comparable to that of a Portuguese taxpayer receiving dividends originating in Portugal or in a Member State of the EU or the EEA. ( 48 )

110. Therefore, a difference in treatment such as that arising from the Portuguese legislation at issue in the case in the main proceedings constitutes a restriction which is prohibited under Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement.

2. The applicability of the ‘standstill’ clause laid down in Article 33 of the EC-Lebanon Agreement

111. As observed by the Swedish Government, unlike the EC-Tunisia Agreement, the EC-Lebanon Agreement contains a ‘standstill’ clause in Article 33 which is similar to that in Article 64(1) TFEU.

112. Article 31 of the EC-Lebanon Agreement guarantees the free movement of capital only ‘subject to … [Article] 33 ...’, the first paragraph of which provides that ‘[Article] 31 … shall be without prejudice to the application of any restriction which exists between them on the date of entry into force of this Agreement, in respect of the movement of capital between them involving direct investment, including in real estate, establishment, the provision of financial services or the admission of securities to capital markets’.

113. Paragraph 2 of that Article adds that, ‘however, the transfer abroad of investments made in Lebanon by [Union] residents or in the [Union] by Lebanese residents and of any profit stemming therefrom shall not be affected’.

114. In so far as the present case concerns the treatment of dividends paid by Ciments de Sibline to its Portuguese shareholder, that is dividends from profits stemming from investments made in Lebanon by an EU resident, as provided for in Article 33(2) of the EC-Lebanon Agreement, I take the view that the ‘standstill’ clause is not applicable in this case.

115. Finally, it is necessary to examine whether the restriction at issue can be justified.

3. The justification for the restriction

116. By its sixth and tenth questions, the referring court wishes to know whether the restriction on the free movement of capital guaranteed by the EC-Tunisia and EC-Lebanon Agreements can be justified in so far as there exists no framework for cooperation like that established in Council Directive 77/799. ( 49 )

117. Interestingly, with the exception of Article 28 of the EC-Tunisia Agreement and Article 27 of the EC-Lebanon Agreement, which provide for possible justification of a restriction on the free movement of goods in terms which are almost identical to those used in Article 36 TFEU, those agreements do not provide for any justification equivalent to that laid down in Article 45(3) TFEU, Article 52(1) TFEU, Article 62 TFEU, Article 65(1)(b) TFEU and Article 65(2) TFEU, namely, public policy, public security and public health.

118. However, here, too, the case-law of the Court concerning the relationships between national direct tax systems and the provisions of the FEU Treaty on the major freedoms of movement (more specifically, the freedom of establishment, the freedom to provide services and the free movement of capital) ( 50 ) may be applied to the issues raised in the present case.

119. I have already noted that the restrictions placed on the aforementioned freedoms of movement by national direct taxation measures are unlikely to be justified by reasons relating to public policy, public security or public health. For proof of this, I need only refer to the fact that, of the approximately 250 Court judgments relating to the compatibility of national tax measures with the FEU Treaty, none has ever been based on the presence or absence of those justifications.

120. All the other justifications (or overriding reasons in the public interest) which were central to those procedures have gradually been incorporated into EU law (theoretically at first, and then in specific cases) solely through the Court’s case-law, whether they relate to fiscal coherence, the need to ensure the efficacy of fiscal supervision and combat tax evasion and tax avoidance or the need to ensure a balanced allocation of the power to tax.

121. In that regard, the reference made by the national court to Directive 77/799 (which it classes as a ‘framework for cooperation’) relates directly to restrictions on the freedoms of movement justified by the need to ensure the efficacy of fiscal supervision and combat tax avoidance and tax evasion, on which the FEU Treaty is also silent. The Court’s case-law on the interpretation of the FEU Treaty applies a fortiori in this case since what is at issue is the free movement of capital, which is applicable, under the FEU Treaty, in relations with third countries.

122. It is precisely with regard to relations with third countries that the Court has accepted justifications for restrictions on capital movements, having refused to do so in respect of restrictions on movements between Member States. The Court has held, in several judgments, that Directive 77/799 allowed Member States to ensure efficient tax collection without having to impose restrictions on the movement of capital. The fact that the directive was not applicable to third countries obviously changed the situation unless, according to the Court, there was a double taxation convention containing provisions on administrative cooperation between the third State and the Member State which adopted the contested tax measure. ( 51 )

123. As noted by the Portuguese and Swedish Governments, rejecting all justifications for a restriction on the free movement of capital on the basis that the EC-Tunisia and EC-Lebanon Agreements are silent in that regard would have the effect of establishing, for capital movements to or from Tunisia and Lebanon, a more liberalised system than the existing system for capital movements between Member States and between Member States and third countries in respect of which overriding reasons in the public interest may justify certain restrictions imposed by Member States.

124. As held by the International Court of Justice in the judgment in Gabčikovo-Nagymaros Project (Hungary/Slovakia) in relation to the parties’ obligation to implement the treaties ‘in good faith’, in accordance with the requirement under Article 26 of the Vienna Convention, ( 52 )‘this latter element … implies that, in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realised’. ( 53 )

125. Given that it seems highly improbable that those who drafted the EC-Tunisia and the EC-Lebanon Agreements would have wanted to grant full freedom for capital movements between the Union and those two countries while imposing certain restrictions on capital movements between Member States or between Member States and third countries, I consider that a restriction on the free movement of capital would not infringe the EC-Tunisia and EC-Lebanon Agreements if it was justified by one of the overriding reasons in the public interest, ( 54 ) and more specifically those referred to by the national court.

126. From that point of view, the Portuguese Government, supported by the Swedish Government, relies on the efficacy of fiscal supervision and the fight against tax evasion and tax avoidance to justify a restriction such as that at issue in the case in the main proceedings, since there is no instrument for administrative cooperation similar to Directive 77/799 either with the Republic of Tunisia or with the Republic of Lebanon.

127. The Portuguese Government states that there is no double taxation convention between the Portuguese Republic and the Republic of Lebanon and that the information exchange mechanism provided for in Article 25 of the convention between the Portuguese Republic and the Republic of Tunisia is not binding on the States, which is not the case under the aforementioned directive.

128. Given that, under the second indent of Article 89 of the EC-Tunisia Agreement and Article 85(b) of the EC-Lebanon Agreement, each party may adopt and apply any measure aimed at preventing tax evasion and tax avoidance, I am of the view, for the reason given in point 90 of the present Opinion, that any justification on that basis must be rejected at the outset in the present case.

129. I would add that the case-law of the Court accepts that justification only for measures which have the specific purpose of preventing wholly artificial arrangements, set up to circumvent tax legislation, from attracting benefits, which has not been an issue at all in the present case. ( 55 ) Furthermore, the justification in question has never been accepted in the case of a general presumption of tax evasion.

130. As regards the justification based on the effectiveness of fiscal supervision in the context of capital movements between Member States and third States, the Court has previously held that that justification ‘can only be accepted where the legislation of a Member State makes entitlement to a tax advantage dependent on the satisfaction of conditions compliance with which can be verified only by obtaining information from the competent authorities of a non-Member State and where, because that non-Member State is not bound under an agreement to provide information, it proves impossible to obtain that information from it’. ( 56 )

131. As stated by the referring court, under Article 46 of the CIRC, the right to the elimination of double economic taxation of distributed dividends is granted only to Portuguese companies which meet certain minimum requirements as regards the size of the holding in the capital of the company paying the dividends, and the value and duration of that holding. ( 57 )

132. In the present case, neither the Portuguese Government nor the referring court has claimed that the grant of the benefit at issue would be dependent ‘on the satisfaction of conditions compliance with which can be verified only by obtaining information from the competent authorities of a non-Member State’. ( 58 )

133. If the referring court were to reach the opposite conclusion in that regard, it would be permissible for the Portuguese Government to invoke the effectiveness of fiscal supervision, but only in relation to the dividends received from Ciments de Sibline because ‘[Lebanon] is not bound under an agreement to provide information’. ( 59 )

134. That is not so in relation to the dividends received from Ciments de Gabés because Article 25 of the double taxation convention between the Portuguese Republic and the Republic of Tunisia provides for an information exchange mechanism. ( 60 )

135. However, it should be pointed out that if the grant of the benefit at issue were dependent on the satisfaction of conditions which the competent authorities in the third country concerned are unable to confirm because, for example, the collection of the information in question does not fall within its competence, it would not be permissible to refuse to grant that benefit without giving the taxpayer the opportunity to provide the necessary information.

136. In conclusion, the refusal under national legislation such as that at issue in the case in the main proceedings to eliminate or mitigate double economic taxation may not be justified by an overriding reason in the public interest.

4. The consequences of a breach of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement

137. Should the Court hold that national legislation such as that at issue in the case in the main proceedings infringed Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement, the referring court also asks whether it would be required to apply the full deduction mechanism provided for in Article 46(1) of the CIRC to the dividends which SECIL received from Ciments de Gabés and Ciments de Sibline.

138. It should be noted at the outset that ‘it is apparent from the settled case-law of the Court that the right to a refund of taxes levied by a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law prohibiting such taxes, as interpreted by the Court. A Member State is therefore in principle required to repay charges levied in breach of EU law’. ( 61 )

139. Furthermore, the Court has previously held that ‘where a Member State has levied taxes in breach of the rules of EU law, individuals are entitled to reimbursement not only of the tax unduly levied but also of the amounts paid to that State or retained by it which relate directly to that tax’. ( 62 )

140. That rule has only one exception, namely, the passing-on of the tax to other persons ( 63 ) and, in the absence of EU legislation, it is governed by national rules of procedure, subject to observance of the principles of equivalence and effectiveness. ( 64 )

141. The same applies as regards taxes received in breach of the Euro-Mediterranean Agreements which ‘form an integral part … of the [EU] legal system’. ( 65 )

142. Accordingly, the Portuguese tax authorities are required to repay SECIL, with interest, the amounts collected in breach of Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement.

143. Those amounts correspond to the difference between the amount paid by SECIL and the amount that it would have paid if the dividends it received from Ciments de Gabés and Ciments de Sibline had been considered to have been paid by companies with their head office or effective management in EU or EEA territory.

144. In conclusion, I propose that the Court’s answer to the fourth, sixth, eighth and tenth questions should be that Article 34 of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement must be interpreted as precluding legislation of a Member State, such as that at issue in the case in the main proceedings, under which the right to the (full or partial) elimination of the economic double taxation of distributed profits is granted only where the company distributing the profits has its head office or effective management in Portuguese territory or is resident in another Member State of the Union or the EEA. The amounts collected in breach of those provisions must be repaid, with interest, to the taxpayer.

E – The eleventh and twelfth questions referred for a preliminary ruling

145. By its eleventh and twelfth questions, the referring court wishes to know whether Article 63 TFEU is to be interpreted as precluding national legislation such as that at issue in the case in the main proceedings, which does not allow deduction from the tax base in the case of dividends received from companies with their head office or effective management outside the EU or the EEA, but does allow it where the companies distributing the dividends have their head office or effective management in a Member State of the EU or the EEA.

146. As explained in points 40 to 57 of the present Opinion, the provisions of the FEU Treaty apply only in so far as they are compatible with the provisions of the EC-Tunisia and EC-Lebanon Agreements, which seems to be the case with Article 63(1) TFEU.

147. For the same reasons as those set out in points 98 to 110 and 116 to 144 of the present Opinion, I am of the view that legislation such as the Portuguese legislation at issue in the present case constitutes a restriction on the free movement of capital which cannot be justified.

F – The thirteenth question referred for a preliminary ruling

148. By its thirteenth question, the referring court asks whether the ‘standstill’ clause provided for in Article 64 TFEU is applicable to the case at issue in the main proceedings.

149. I would point out that the EC-Tunisia Agreement does not contain a ‘standstill’ clause comparable to that provided for in Article 64 TFEU, and the ‘standstill’ clause in Article 33 of the EC-Lebanon Agreement is less extensive than that provided for in Article 64 TFEU.

150. The application of the FEU Treaty is to take precedence only in the event of conflict with provisions of international law and secondary EU legislation, of which the EC-Tunisia and EC-Lebanon Agreements form part, and this is not the case in my opinion.

151. Article 64 TFEU permits, but does not impose, the application of restrictions existing on 31 December 1993 on the movement of capital between Member States and third countries. Therefore, there is nothing to prevent Member States from choosing to abandon them either unilaterally, or, as submitted in this case by the Swedish Government and the Commission, by means of an international agreement, whether in full (as in the EC-Tunisia Agreement) or in part (as in the EC-Lebanon Agreement).

152. There is therefore no need to answer that question.

153. If, however, the Court should disagree, it would be necessary to examine whether the conditions under Article 64 TFEU are satisfied.

154. According to paragraph 1 of that article, ‘Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate — establishment, the provision of financial services or the admission of securities to capital markets’.

155. In that regard, the Portuguese Government submits that although the present case concerns Article 46 of the 2009 version of the CIRC, an equivalent provision already existed on 31 December 1993.

156. As the Court held in paragraph 47 of the judgment in Emerging Markets Series of DFA Investment Trust Company (C‑190/12, EU:C:2014:249), ‘as regards the temporal criterion laid down by Article 64(1) TFEU, it is apparent from the Court’s settled case-law that while it is, in principle, for the national court to determine the content of the legislation which existed on a date laid down by a European Union measure, it is for the Court of Justice to provide guidance on interpreting the concept of EU law which constitutes the basis of a derogation under EU law for national legislation “existing” on a particular date’.

157. According to settled case-law, ‘any national measure adopted after a date thus fixed is not, by that fact alone, automatically excluded from the derogation laid down in the European Union measure in question. A provision which is, in essence, identical to the previous legislation, or limited to reducing or eliminating an obstacle to the exercise of rights and freedoms established by EU law in the earlier legislation, will be covered by the derogation. By contrast, legislation based on an approach which differs from that of the previous law and establishes new procedures cannot be treated as legislation existing at the date fixed in the European Union measure in question’. ( 66 )

158. If the Court were to hold that Article 64 TFEU is applicable, it would fall to the referring court to ascertain whether a provision which was, in essence, identical to Article 46 of the CIRC, in the sense that it did not permit the elimination of economic double taxation where dividends are received from third countries, was in force on 31 December 1993. Only then would the restriction introduced by Article 46 of the CIRC be covered by the ‘standstill’ clause provided for in Article 64 TFEU.

G – The fourteenth question referred for a preliminary ruling

159. By its fourteenth question, the referring court asks whether the ‘standstill’ clause provided for in Article 64 TFEU should not be applied because the Portuguese Republic has introduced the scheme of tax benefits for contractual investments abroad provided for in Article 41(5)(b) of the EBF and the scheme provided for in Article 42 of the EBF for dividends from the Portuguese-speaking African countries and Timor-Leste.

160. That question stems from SECIL’s claim that the Portuguese Republic could not refrain from applying the ‘standstill’ clause only in cases where the special tax regimes provided for in Article 41(5)(b) and Article 42 of the EBF applied.

161. In view of my answers to the previous questions, I do not consider it necessary to answer the fourteenth question.

162. This is, in particular, because, as submitted by the Commission, the existence of a scheme of tax benefits for contractual investments and for dividends from the Portuguese-speaking African countries and Timor-Leste is not a relevant factor in this case.

163. Those schemes mean that the Portuguese Republic may no longer apply its general scheme for dividends received from a third country to the dividends received from Portuguese-speaking African countries and Timor-Leste, but has to apply that specific regime. It cannot be held that, by adopting those specific regimes, the Portuguese Republic has decided to abandon the possibility of invoking the ‘standstill’ clause under Article 64 TFEU, the scope of which it is possible to restrict.

164. If there was a question regarding equal treatment, it would be governed by national law alone and would come under the jurisdiction of the Portuguese courts.

VI – Conclusion

165. I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Tribunal Tributário de Lisboa (Tax Court, Lisbon): (1) Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC ECSC of the Council and of the Commission of 26 January 1998 and Article 30 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006 are not applicable in the case in the main proceedings, which falls exclusively within the scope of the free movement of capital. (2) Article 34 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC ECSC of the Council and of the Commission of 26 January 1998 and Articles 31 and 33 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006 are provisions which are clear, precise and unconditional and have direct effect. (3) Article 34 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC ECSC of the Council and of the Commission of 26 January 1998 and Articles 31 and 33 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006 must be interpreted as precluding legislation of a Member State, such as that at issue in the case in the main proceedings, under which the right to the (full or partial) elimination of the economic double taxation of distributed profits is granted only where the company distributing the profits has its head office or effective management in Portuguese territory or is resident in another Member State of the European Union or the EEA. The amounts collected in breach of those provisions must be repaid, with interest, to the taxpayer. (4) National legislation such as that at issue in the case in the main proceedings, which does not permit the full or partial deduction, as appropriate, of dividends from companies with their head office or effective management outside the European Union or the European Economic Area, cannot be based either on Article 89 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC ECSC of the Council and of the Commission of 26 January 1998, or on Article 85 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006. (5) Article 63 TFEU of the EC-Tunisia Agreement and Article 31 of the EC-Lebanon Agreement must be interpreted as precluding legislation of a Member State, such as that at issue in the case in the main proceedings, under which the right to the (full or partial) elimination of the economic double taxation of distributed profits is granted only where the company distributing the profits has its head office or effective management in Portuguese territory or is resident in another Member State of the European Union or the European Economic Area. The amounts collected in breach of that provision must be repaid, with interest, to the taxpayer.

( 1 ) Original language: French.

( 2 ) OJ 1998 L 97, p. 1.

( 3 ) OJ 2006 L 143, p. 1.

( 4 ) Diário da República I, Series A, No 77, of 31 March 2000, p. 1411.

( 5 ) See judgments in Haegeman (181/73, EU:C:1974:41, paragraphs 3 to 6) on the Agreement establishing an association between the European Economic Community and Greece, signed in Athens on 9 July 1961, concluded on behalf of the Community by Council Decision 63/106/EEC of 25 September 1961 (OJ, English Special Edition 1963(II), p. 3, ‘the EEC-Greece Association Agreement’); Demirel (12/86, EU:C:1987:400, paragraph 7) on the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963, concluded on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1977 L 361, p 29, ‘the EEC-Turkey Association Agreement’); Andersson and Wåkerås-Andersson (C‑321/97, EU:C:1999:307, paragraphs 26 and 27); Ospelt and Schlössle Weissenberg (C‑452/01, EU:C:2003:493, paragraph 27); and Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraph 19) on the Agreement on the European Economic Area, signed on 2 May 1992 (OJ 1994 L 1, p. 3, ‘the EEA Agreement’) and approved by Decision 94/1/EC ECSC of the Council and the Commission of 13 December 1993 on the conclusion of the Agreement on the European Economic Area between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation (OJ 1994, L 1, p. 1).

( 6 ) See the Cooperation Agreement between the European Economic Community and the People’s Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1), which was analysed by the Court in the cases which gave rise to the judgments in Krid (C‑103/94, EU:C:1995:97) and Babahenini (C‑113/97, EU:C:1998:13).

( 7 ) See the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 (OJ 1978 L 264, p. 1), replaced by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 26 February 1996 and approved on behalf of those Communities by Council and Commission Decision 2000/204/EC, ECSC of 24 January 2000 (OJ 2000 L 70, p. 1). Those Agreements were the subject of requests for preliminary rulings in the cases which gave rise to the judgments in Eddline El-Yassini (C‑416/96, EU:C:1999:107) and Mesbah (C‑179/98, EU:C:1999:549), and the orders in Echouikh (C‑336/05, EU:C:2006:394) and El Youssfi (C‑276/06, EU:C:2007:215).

( 8 ) See the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995 (OJ 2000 L 147, p. 3) and the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 (OJ 1997 L 187, p. 3). Those agreements were the subject of a request for a preliminary ruling in the case which gave rise to the judgment in Brita (C‑386/08, EU:C:2010:91).

( 9 ) The EC-Lebanon Agreement has already been analysed by the Court in the case which gave rise to the order in Mugraby v Council and Commission (C‑581/11 P, EU:C:2012:466), and by the General Court in the case which gave rise to the order in Mugraby v Council and Commission (T‑292/09, EU:T:2011:418).

( 10 ) See the Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part, signed in Luxemburg on 25 June 2001, approved by Council Decision 2004/635/EC of 21 April 2004 (OJ 2004 L 304, p. 38). That agreement was the subject of a request for a preliminary ruling in the case which gave rise to the judgment in Helm Düngemittel (C‑613/12, EU:C:2014:52).

( 11 ) The EC-Tunisia Agreement has already been the subject of a request for a preliminary ruling in the case which gave rise to the judgment in Gattoussi (C‑97/05, EU:C:2006:780) and the subject of analysis by the General Court in the case which gave rise to the judgments in Pigasos Alieftiki Naftiki Etaireia v Council and Commission (T‑162/07, EU:T:2009:333) and ICF v Commission (T‑406/08, EU:T:2013:322, paragraphs 208 to 214).

( 12 ) The EEC-Greece Association Agreement was the subject of a request for a preliminary ruling in the case which gave rise to the judgment in Haegeman (181/73, EU:C:1974:41).

( 13 ) The EEC-Turkey Association Agreement was the subject of requests for preliminary rulings in cases which gave rise to several judgments, most importantly the judgment in Demirel (12/86, EU:C:1987:400).

( 14 ) See the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, concluded and approved on behalf of the Community by Decision 93/742/Euratom, ECSC, EC of the Council and Commission of 13 December 1993 (OJ 1993 L 347, p. 1). That agreement was analysed by the Court in the cases which gave rise to the judgments in Regione autonoma Friuli-Venezia Giulia and ERSA (C‑347/03, EU:C:2005:285); Sfakianakis (C‑23/04 to C‑25/04, EU:C:2006:92); Agrover (C‑173/06, EU:C:2007:612), and to the order in Agenzia Dogane Circoscrizione Doganale di Genova (C‑505/06, EU:C:2007:768).

( 15 ) See the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, signed in Corfu on 24 June 1994 and approved on behalf of the Communities by Council and Commission Decision 97/800/ECSC, EC, Euratom of 30 October 1997 (OJ 1997 L 327, p. 1). That agreement was analysed by the Court in the case which gave rise to the judgment in Simutenkov (C‑265/03, EU:C:2005:213).

( 16 ) See, inter alia, judgments in Andersson and Wåkerås-Andersson (C‑321/97, EU:C:1999:307); Salzmann (C‑300/01, EU:C:2003:283); Ospelt and Schlössle Weissenberg (C‑452/01, EU:C:2003:493); Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt (C‑157/07, EU:C:2008:588); Établissements Rimbaud (C‑72/09, EU:C:2010:645), and order in projektart and Others (C476/10, EU:C:2011:422).

( 17 ) See, inter alia, judgments in Commission v Belgium (C‑522/04, EU:C:2007:405); Commission v Netherlands (C‑521/07, EU:C:2009:360); Commission v Portugal (C‑267/09, EU:C:2011:273); and Commission v Germany (C‑284/09, EU:C:2011:670).

( 18 ) Judgment in Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraph 21). See also, to that effect, judgments in Ospelt and Schlössle Weissenberg (C‑452/01, EU:C:2003:493, paragraphs 28 and 32); Commission v Belgium (C‑522/04, EU:C:2007:405, paragraph 44); and Commission v Netherlands (C‑521/07, EU:C:2009:360, paragraph 33), and order in projektart and Others (C‑476/10, EU:C:2011:422, paragraphs 34 and 35).

( 19 ) Judgment in Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 42). See also, to that effect, judgments in Commission v Germany (C‑61/94, EU:C:1996:313, paragraph 52); Algemene Scheeps Agentuur Dordrecht (C‑311/04, EU:C:2006:23, paragraph 25); and IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 35).

( 20 ) Judgment in Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 285 and 308).

( 21 ) Rousseau, C., ‘De la compatibilité des normes juridiques contradictoires dans l’ordre international’, Revue générale de droit international public, vol. 39, 1932, pp. 133 to 136.

( 22 )

( 23 ) According to Article 53 of the Vienna Convention, ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. See also, to that effect, Article 53 of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, concluded in Vienna on 21 March 1986.

( 24 ) See, to that effect, Crawford, J., ‘Brownlie’s Principles of Public International Law’, 8th edition, Oxford University Press, 2012, pp. 22 and 23; Matz-Lück, N., ‘Conflicts between treaties’ published in Berhardt, R., and Macalister-Smith, P., (eds.), Max Planck Encyclopedia of Public International Law, 2010, paragraphs 4, 9 and 10, available online at the following web address: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1485?rskey=uOhZpi&result= 5&prd=EPIL.

( 25 ) See Kelsen, H., ‘Les rapports de système entre le droit interne et le droit international public’, Recueil des cours de l’Académie de droit international, vol. IV, 1926, p. 231 and pp. 267 to 274.

( 26 ) Judgment in Eddline El-Yassini (C‑416/96, EU:C:1999:107, paragraph 29). See also, to that effect, judgments in Kziber (C‑18/90, EU:C:1991:36, paragraph 21) and Gattoussi (C‑97/05, EU:C:2006:780, paragraph 27).

( 27 ) See, to that effect, judgment in D. (C‑376/03, EU:C:2005:424, paragraphs 58 to 63), in which the Court ruled that ‘Articles [63 TFEU] and [65 TFEU] do not preclude a rule laid down by a bilateral convention for the avoidance of double taxation … from not being extended … to residents of a Member State which is not party to that convention’ (paragraph 63). As the Court held in paragraph 55 of that judgment, making reference to paragraph 59 of the judgment in Saint-Gobain ZN (C‑307/97, EU:C:1999:438), ‘there are situations where the benefits under a bilateral convention may be extended to a resident of a Member State which does not have the status of party to that convention’. This is so where ‘in the case of a double taxation convention concluded between a Member State and a non-member country, the national treatment principle requires the Member State which is party to the convention to grant to permanent establishments of non-resident companies the benefits provided for by that convention on the same conditions as those which apply to resident companies’ (paragraph 56). However, that does not apply to the case at issue in the main proceedings.

( 28 ) See Opinions of Advocate General Jacobs in Commission v Council (C‑110/02, EU:C:2003:667, point 33); Advocate General Ruiz-Jarabo Colomer in St. Paul Dairy (C‑104/03, EU:C:2004:509, point 61); Advocate General Jääskinen in Établissements Rimbaud (C‑72/09, EU:C:2010:235, point 28); Advocate General Mazák in Commission v Italy (C‑565/08, EU:C:2010:403, point 30); View of Advocate General Kokott in Réexamen Commission v Strack (C‑579/12 RX-II, EU:C:2013:573, point 48); Opinions of Advocate General Szpunar in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:246, point 59), and Advocate General Jääskinen in United Kingdom v Parliament and Council (C‑507/13, EU:C:2014:2394, point 59).

( 29 ) See also, to that effect, Article 30(3) and (4) of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, concluded in Vienna on 21 March 1986. As the Court held in paragraph 37 of the judgment in Helm Düngemittel (C‑613/12, EU:C:2014:52), ‘international treaty law was codified, in essence, by the Vienna Convention and … the rules contained in that convention apply to an agreement concluded between a State and an international organisation, such as the Euro-Mediterranean Agreement with Egypt, in so far as those rules are an expression of general international customary law’. See also, to that effect, judgment in Brita (C‑386/08, EU:C:2010:91, paragraphs 40 and 41). Accordingly, those rules ‘are binding upon the institutions [of the Union] and form part of the [EU] legal order’ (judgment in Brita, C‑386/08, EU:C:2010:91, paragraph 42).

( 30 ) The rule set out in Article 30(3) of the Vienna Convention does not imply that the parties to the two treaties must be identical. On the contrary, as the International Law Commission explains in its commentaries on the Draft Articles on the Law of Treaties (Yearbook of the International Law Commission, 1966, vol. II, p. 216, ‘paragraph 3 states the general rule for cases where all the parties to a treaty (whether without or with additional States) conclude a later treaty relating to the same subject-matter’ (emphasis added). See also, to that effect, Pauwelyn, J., Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law, 1st edition, Cambridge University Press, 2003, p. 381; Sadat-Akhavi, S.A., Methods of Resolving Conflicts Between Treaties, Martinus Nijhoff Publishers, Leiden/Boston, 2003, pp. 62 and 63; Mus, J. B., ‘Conflicts between treaties in international law’, Netherlands International Law Review, vol. XLV, 1998, p. 208, p. 219.

( 31 ) Article 63(1) TFEU.

( 32 ) See Article 73b EC, inserted in 1992 by Article G(15) TEU, and applicable as of 1 January 1994.

( 33 ) See paragraph 31 of the judgment in Ospelt and Schlössle Weissenberg (C‑452/01, EU:C:2003:493) in which the Court held that ‘since 1 May 1995, the date on which the EEA Agreement entered into force in respect of the Principality of Liechtenstein, and in the sectors covered thereby, Member States may no longer invoke Article [64 TFEU] vis-à-vis the Principality of Liechtenstein. Consequently, contrary to the arguments advanced by the Austrian Government, it is not for the Court to examine, pursuant to that provision, whether the restrictions on the movement of capital between Austria and Liechtenstein as a consequence of the VGVG were already substantively in force on 31 December 1993 and thus whether they could be maintained by virtue of the same article’. See also, to that effect, judgment in Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraphs 19 to 22) in which the Court applied only the provisions of the EEA Agreement.

( 34 ) None of the referring court’s questions relates to Article 30 of the EC-Lebanon Agreement. Given that the parties make reference to that article, it has been included for the purposes of supplementing the analysis.

( 35 ) Judgment in Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraph 89). See also, to that effect, judgments in Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 36); Haribo Lakritzen Hans Riegel and Österreichische Salinen (C‑436/08 and C437/08, EU:C:2011:61, paragraph 33); and Accor (C‑310/09, EU:C:2011:581, paragraph 30).

( 36 ) Judgment in Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraph 99). See also, to that effect, judgment in Emerging Markets Series of DFA Investment Trust Company (C‑190/12, EU:C:2014:249, paragraphs 27 to 30).

( 37 ) Judgment in Holböck (C‑157/05, EU:C:2007:297, paragraph 34). See also, to that effect, judgments in Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraphs 180 and 181) and Orange European Smallcap Fund (C‑194/06, EU:C:2008:289, paragraph 102).

( 38 ) Judgment in Holböck (C‑157/05, EU:C:2007:297, paragraph 35).

( 39 ) Salini Costruttori S.p.A. & Italstrade S.p.A. v Kingdom of Morocco (ICSID Case No. ARB/00/4) Decision on jurisdiction of 23 July 2001, 2002, vol. 129 Journal du droit international, p. 196, paragraph 52. Several arbitration tribunals have used that definition of the concept of ‘investment’. See, in that regard, the arbitration case-law cited by Gaillard, E., ‘Identify or Define? Reflections on the Evolution of the Concept of Investment in ICSID Practice’ in Binder, C., Kriebaum, U., Reinisch, A., and Wittich, S., (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, Oxford University Press, Oxford, 2009, p. 403, p. 411.

( 40 ) See also, to that effect, judgments in Gloszczuk (C‑63/99, EU:C:2001:488, paragraph 30); Wählergruppe Gemeinsam (C‑171/01, EU:C:2003:260, paragraph 53); and Simutenkov (C‑265/03, EU:C:2005:213, paragraph 21).

( 41 ) Emphasis added.

( 42 ) Emphasis added.

( 43 ) Emphasis added.

( 44 ) Judgment in Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraph 37). See also, to that effect, judgments in Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 62) and Haribo Lakritzen Hans Riegel and Österreichische Salinen (C‑436/08 and C437/08, EU:C:2011:61, paragraph 59).

( 45 ) Judgment in Emerging Markets Series of DFA Investment Trust Company (C‑190/12, EU:C:2014:249, paragraph 39). See also, to that effect, judgments in A (C‑101/05, EU:C:2007:804, paragraph 40); Haribo Lakritzen Hans Riegel and Österreichische Salinen (C‑436/08 and C437/08, EU:C:2011:61, paragraph 50); and Santander Asset Management SGIIC and Others (C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 15).

( 46 ) Judgment in Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraph 38). See also, to that effect, judgments in Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 72) and Haribo Lakritzen Hans Riegel and Österreichische Salinen (C‑436/08 and C437/08, EU:C:2011:61, paragraph 60).

( 47 ) The beneficiary company must have a direct holding in the capital of the company distributing the profits of not less than 10% or with a value of not less than EUR 20 million, and that holding must have been in its ownership for at least one year.

( 48 ) See point 95 of the present Opinion.

( 49 ) That directive was repealed and replaced by Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation (OJ 2011 L 64, p. 1).

( 50 ) Since the free movement of goods is not affected by direct taxation.

( 51 ) See, inter alia, judgments in ELISA (C‑451/05, EU:C:2007:594, paragraphs 91 to 100) and Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraphs 33 to 51).

( 52 ) See also, to that effect, Article 26 of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, concluded in Vienna on 21 March 1986, and the judgments in Eddline El-Yassini (C‑416/96, EU:C:1999:107, paragraph 47) and Brita (C‑386/08, EU:C:2010:91, paragraph 43).

( 53 ) I.C.J. Reports 1997, p. 7, paragraph 142.

( 54 ) The Court has already accepted that a restriction may be justified on the basis of