Associação Peço a Palavra and Others v Conselho de Ministros.
Date: 2019-02-27
29


In that regard, it must be found that a service activity in the air carrier industry, such as TAP’s main business, must be classified as ‘services in the field of transport’ within the meaning of Article 2(2)(d) of Directive 2006/123 read in the light of recital 21 thereof, to which that directive does not apply (see, to that effect, judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 36).
30


That classification is confirmed by the case-law of the Court, according to which the concept of ‘services in the field of transport’ includes not only transport services in themselves but also any service inherently linked to any physical act of moving persons or goods from one place to another by means of transport (judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 41 and the case-law cited).
32


By contrast, in so far as the Court may extract from the information provided by the referring court the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 16 July 2015, Abcur, C‑544/13 and C‑545/13,EU:C:2015:481, paragraph 34), it should be made clear that, for the purposes of assessing the compatibility with EU law of the conditions set out in the tender specifications, Regulation No 1008/2008, in so far as it establishes common rules for the operation of air services in the European Union, may be relevant.
36


According to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly separate. Although it is for the Court to interpret the provisions of EU law, it falls exclusively to the referring court to interpret national legislation. The Court must base itself on the interpretation of national law as described to it by the referring court (see, to that effect, inter alia, judgments of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 52, and of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 24).
43


According to the Court’s settled case-law, national legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities falls within the scope of the freedom of establishment (judgments of 13 April 2000, Baars, C‑251/98, EU:C:2000:205, paragraph 22, and of 10 June 2015, X, C‑686/13, EU:C:2015:375, paragraph 18).
46


However, according to the Court’s settled case-law, Article 345 TFEU does not mean that rules governing the system of property ownership current in the Member States are not subject to the fundamental rules of the FEU Treaty, including, inter alia, the prohibition of discrimination, freedom of establishment and the free movement of capital (judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 36 and the case-law cited).
49


According to the Court’s settled case-law, any national measure taken in an area which has been the subject of exhaustive harmonisation at the level of the European Union must be assessed in the light of the provisions of that harmonising measure and not in the light of the provisions of primary law (judgments of 17 November 2015, RegioPost, C‑115/14, EU:C:2015:760, paragraph 57, and of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 15 and the case-law cited).
54


In that regard, it must be borne in mind that, according to the Court’s settled case-law, all measures which prohibit, impede or render less attractive the exercise of freedom of establishment must be considered to be restrictions on that freedom within the meaning of Article 49 TFEU (see, inter alia, judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 46 and the case-law cited).
57


Thus, those requirements mean restrictions on the decision-making powers normally open to the bodies of the company of a purchaser of shares representing up to 61% of TAP SGPS’s share capital, such restrictions being comparable to those which could result from the exercise by a Member State of the powers of Member State shares which confer upon it special rights, namely ‘golden shares’, intended to defend general interests (see, by analogy, judgment of 28 September 2006, Commission v Netherlands, C‑282/04 and C‑283/04, EU:C:2006:608, paragraph 30).
60


In that regard, the Court pointed out, in particular, that the requirement at issue could not logically constitute, as such, a barrier to, or restriction on, the freedom of establishment since it did not impose the slightest restriction on the freedom of economic operators established in other Member States to create agencies or other establishments in that territory (judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb, C‑338/09, EU:C:2010:814, paragraph 34).
62


In accordance with Articles 49 and 54 TFEU, such a requirement to maintain a principal place of business in the Member State concerned constitutes a restriction to the freedom of establishment of a company incorporated under the legislation of a Member State, that is, in the present case, under Portuguese legislation. That freedom encompasses the right to transfer the principal place of business of the company to another Member State, which requires, if that transfer entails the conversion of the company into a company subject to the law of the latter Member State and the loss of its nationality of origin, compliance with the conditions for incorporation laid down in the legislation of the Member State of relocation (see, to that effect, judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraphs 33 to 35).
63


The issue then arises of whether the requirements arising from Article 5(c) and (e) of the tender specifications, relating to maintaining TAP’s headquarters and effective management in Portugal and to maintaining and developing the existing national hub, respectively, which have been found to constitute restrictions to the freedom of establishment of the purchaser of the shares subject to the reprivatisation process at issue in the main proceedings, may be justified by an overriding reason in the public interest, which requires that they are appropriate for ensuring the attainment of the objective in question and do not go beyond what is necessary to attain that objective (see, to that effect, inter alia, judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 52).
70


In that regard, it must be borne in mind that, in so far as Article 5(c) and (e) of the tender specifications refers to objectives such as preserving and promoting the growth of TAP, reinforcing the economic strength of that company, contributing to preserving and developing the operational and commercial qualities of the TAP Group and contributing to the growth of the national economy, it is settled case-law that purely economic grounds, such as, in particular, promotion of the national economy or its proper functioning, cannot serve as justification for an obstacle to one of the fundamental freedoms enshrined in the Treaties (see, inter alia, judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 72).
72


In that regard, it must be borne in mind that the guarantee of a service of general interest may constitute an overriding reason in the public interest capable of justifying an obstacle to one of the fundamental freedoms enshrined in the Treaties (see, by analogy, judgment of 28 September 2006, Commission v Netherlands, C‑282/04 and C‑283/04, EU:C:2006:608, paragraph 38).