Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2002-11-05
23 Article 234 of the Treaty is of general scope and applies to any international agreement, irrespective of subject-matter, which is capable of affecting application of the Treaty (Case 812/79 Attorney General v Burgoa [1980] ECR 2787, paragraph 6; Case C-158/91 Levy [1993] ECR I-4287, paragraph 11; Case C-62/98 Commission v Portugal [2000] ECR I-5171, paragraph 43).
24 As is clear from paragraph 8 of the judgment in Burgoa, the purpose of the first paragraph of Article 234 of the Treaty is to make it clear, in accordance with the principles of international law [see, in that connection, Article 30(4)(b) of the Convention on the Law of Treaties signed in Vienna on 23 May 1969] that application of the Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under a prior agreement and to perform its obligations thereunder.
41 It is to be observed, next, that the application of Article 52 of the Treaty in a given case depends, not on the question whether the Community has legislated in the area concerned by the business which is carried on, but on the question whether the situation under consideration is governed by Community law.  Even if a matter falls within the power of the Member States, the fact remains that the latter must exercise that power consistently with Community law (Factortame and Others, paragraph 14; Case C-124/95 Centro-Com [1997] ECR I-81, paragraph 25; Case C-264/96 ICI v Colmer [1998] ECR I-4695, paragraph 19).
45 Articles 52 and 58 of the Treaty thus guarantee nationals of Member States of the Community who have exercised their freedom of establishment and companies or firms which are assimilated to them the same treatment in the host Member State as that accorded to nationals of that Member State (Saint-Gobain, paragraph 35), both as regards access to an occupational activity on first establishment and as regards the exercise of that activity by the person established in the host Member State.
46 The Court has thus held that the principle of national treatment requires a Member State which is a party to a bilateral international treaty with a non-member country for the avoidance of double taxation to grant to permanent establishments of companies resident in another Member State the advantages provided for by that treaty on the same conditions as those which apply to companies resident in the Member State that is party to the treaty (see Saint-Gobain, paragraph 59, and judgment of 15 January 2002 in Case C-55/00 Gottardo v INPS [2002] ECR I-413, paragraph 32).
53 That finding cannot be disturbed by the argument which the United Kingdom derives from the Court's reasoning in paragraphs 59 and 60 of the Saint-Gobain judgment.
57 It should be recalled that, according to settled case-law, recourse to justification on grounds of public policy under Article 56 of the Treaty presupposes the need to maintain a discriminatory measure in order to deal with a genuine and sufficiently serious threat affecting one of the fundamental interests of society (see, to that effect, Case 30/77 R v Bouchereau [1977] ECR I-1999, paragraph 35; Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 46; Case C-348/96 Calfa [1999] ECR I-11, paragraph 21).  It follows that there must be a direct link between that threat, which must, moreover, be current, and the discriminatory measure adopted to deal with it (see, to that effect, Case 352/85 Bond van Adverteerders and Others, paragraph 36; and Calfa, paragraph 24).