Ordre des barreaux francophones et germanophone and Others v Conseil des ministres.
Date: 2016-07-28
23


Since the referring court refers not only to Article 47 of the Charter, but also to Article 14 of the ICCPR and Article 6 of the ECHR, it should be recalled that, whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgments of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44; 3 September 2015 in Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45; and 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 45). This finding also applies to the ICCPR. Accordingly, an examination of the validity of Directive 2006/112 must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (see, to that effect, judgment of 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 46 and the case-law cited).
29


Part (a) of the first question, concerning the validity of Article 1(2) and Article 2(1)(c) of Directive 2006/112 in the light of Article 47 of the Charter, is to be assessed according to the characteristics of those provisions themselves and cannot depend on the particular circumstances of a given case.
31


However, according to the case-law of the Court, relating to several areas other than VAT law, the imposition of such costs can be challenged in the light of the right to an effective remedy guaranteed by Article 47 of the Charter only where those costs represent an insurmountable obstacle (see, by analogy, judgment of 22 December 2010 in DEB, C‑279/09, EU:C:2010:811, paragraph 61, and order of 13 June 2012 in GREP, C‑156/12, not published, EU:C:2012:342, paragraph 46) or where they make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order (see, by analogy, judgment of 6 October 2015 in Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraphs 48, 49 and 58).
40


According to settled case-law, the principle of equality of arms, which is a corollary of the very concept of a fair trial and aims to ensure a balance between the parties to the proceedings, implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, to that effect, judgments of 6 November 2012 in Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 71 and 72, and 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, point 31; order of 16 July 2015 in Sánchez Morcillo and Abril García, C‑539/14, EU:C:2015:508, paragraph 48).
41


The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the bringing of evidence and the adversarial hearing before the court (see, to that effect, judgment of 6 November 2012 in Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 71 and 72) and also those parties’ rights to bring an action (judgment of 17 July 2014 in Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, paragraphs 44, 48 and 49).
49


In that regard, it must be recalled that, according to the Court’s settled case-law, the provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, second, those provisions appear, as regards their content, to be unconditional and sufficiently precise (judgment of 13 January 2015 in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 54 and the case-law cited).
50


As regards Article 9(4) of the Aarhus Convention, it is clear from the wording of that provision that it is applicable only to proceedings referred to in Article 9(1), (2) and 3 of that convention. Those provisions do not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals.
51


The Court has held, with regard to Article 9(3) of the Aarhus Convention, that, since only ‘members of the public who meet the criteria, if any, laid down by [the] national law’ are entitled to exercise the rights provided for in this provision, it is subject, in its implementation or effects, to the adoption of a subsequent measure (judgments of 8 March 2011 in Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 45, and 13 Janaury 2015 in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 55).
60


As the Advocate General has noted in points 54 and 55 of her Opinion, although the Court has not previously ruled on the application of the exemption under Article 132(1)(g) of Directive 2006/112 on services provided by lawyers under a national legal aid scheme, it has held, however, that those services cannot be subject to a reduced VAT rate pursuant to Article 98(2) of that directive, read in conjunction with point 15 of Annex III thereto (see, to that effect, judgment of 17 June 2010 in Commission v France, C‑492/08, EU:C:2010:348, paragraph 47).
61


In that judgment, the Court held that, since point 15 of Annex III to that directive permits Member States to apply a reduced rate of VAT not to all supplies of services related to social wellbeing, but only to those provided by organisations which meet the dual requirement of being themselves devoted to social wellbeing and being engaged in welfare or social security work, the intention of the European Union legislature to make the option of applying a reduced rate refer only to supplies of services provided by organisations meeting that dual requirement would be frustrated if a Member State were free to classify private profit-making entities as organisations within the meaning of point 15 merely because those entities provide, inter alia, services related to social wellbeing (see, to that effect, judgment of 17 June 2010 in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 43 and 44).
62


Accordingly, the Court has held that a Member State cannot apply a reduced rate of VAT to supplies of services provided by private profit-making entities merely on the basis of an assessment of the nature of those services without taking into account, inter alia, the objectives pursued by those entities viewed as a whole and whether they are engaged in welfare work on a permanent basis. In the light of its overall objectives and the fact that any engagement in welfare work is not permanent, the professional category of lawyers as a whole cannot be regarded as devoted to social wellbeing (see, to that effect, judgment of 17 June 2010 in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 45 and 46).