PI v Landespolizeidirektion Tirol.
Date: 2019-05-08
40


It should also be recalled that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it and to understand the reasons for the referring court’s view that it needs answers to those questions in order to rule in the dispute before it (judgment of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 48 and the case-law cited).
42


It should be observed as a preliminary point that, in the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (judgment of 19 December 2018, AREX CZ, C‑414/17, EU:C:2018:1027, paragraph 34 and the case-law cited).
43


In the present case, even if, formally, the referring court has limited its questions to the interpretation of Article 15(2) and Articles 41, 47 and 52 of the Charter, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in that regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (see, to that effect, judgment of 19 December 2018, AREX CZ, C‑414/17, EU:C:2018:1027, paragraph 35 and the case-law cited).
47


Assuming that PI’s activity also includes the operation of an establishment in which prostitution services are offered, it should be recalled that prostitution constitutes a provision of services for remuneration (judgment of 20 November 2001, Jany and Others, C‑268/99, EU:C:2001:616, paragraph 49), whereas an activity consisting in the operation of a prostitution business falls within the freedom of establishment, within the meaning of Article 49 TFEU and Articles 9 to 15 of Directive 2006/123, where carried out by the provider for an indefinite period and through a stable infrastructure (see, to that effect, judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraphs 67 to 77).
54


In that regard, it should be noted that even though the referring court does not make reference, in its request for a preliminary ruling, to Article 16 of the Charter, it is clear from the case-law of the Court that that provision refers, inter alia, to Article 49 TFEU, which guarantees the fundamental freedom of establishment (see, to that effect, judgment of 13 February 2014, Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraph 22).
56


As regards Article 41 of the Charter, which is referred to in the second and third questions, it must be observed that it is clear from the wording of that provision that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (judgment of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraph 28 and the case-law cited). It follows that Article 41 of the Charter is irrelevant to the case in the main proceedings.
57


Nevertheless, that provision reflects a general principle of EU law to the effect that the right to good administration encompasses the obligation of the administration to give reasons for its decisions (see, to that effect, judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 68). The obligation of the administration to state reasons for a decision which are sufficiently specific and concrete to allow the person concerned to understand the grounds of the individual measure adversely affecting him is thus a corollary of the principle of respect for the rights of the defence, which is a general principle of EU law (see, to that effect, judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 88, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 38).
59


In accordance with the Court’s settled case-law, any national measure which, albeit applicable without discrimination on grounds of nationality, prohibits, hinders or renders less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the Treaty constitutes a restriction within the meaning of Article 49 TFEU (judgment of 14 November 2018, Memoria and Dall’Antonia, C‑342/17, EU:C:2018:906, paragraph 48 and the case-law cited).
60


In the present case, national legislation such as that at issue in the main proceedings, providing that an administrative authority may decide to close a commercial establishment with immediate effect, on the ground that it suspects that prostitution is practised in that establishment without the authorisation required under that legislation, could have negative consequences on the turnover and continuation of the professional activity, in particular as regards the rapport with customers receiving the services concerned. Consequently, that legislation is liable to prevent or dissuade nationals of other Member States who wish to establish themselves in the Province of Tyrol (Austria) to carrying out an occupational activity such as that at issue in the main proceedings (see, by analogy, judgment of 5 November 2014, Somova, C‑103/13, EU:C:2014:2334, paragraphs 41 to 45).
62


In accordance with the Court’s settled case-law, a restriction on freedom of establishment provided for in Article 49 TFEU may be justified, if applied without discrimination on grounds of nationality, by overriding reasons in the public interest, provided that it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (judgment of 14 November 2018, Memoria and Dall’Antonia, C‑342/17, EU:C:2018:906, paragraph 51 and the case-law cited).
63


It is also settled case-law that the fundamental rights guaranteed by the Charter are applicable in all situations governed by EU law and that they must, therefore, in particular be complied with where national legislation falls within the scope of EU law (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 62 and the case-law cited).
64


That is in particular the case where national legislation is such as to obstruct one or more of the fundamental freedoms guaranteed by the Treaty and the Member State concerned relies on overriding reasons in the public interest in order to justify such an obstacle. In such a situation, the national legislation concerned can fall within the exceptions thereby provided for only if it complies with the fundamental rights the observance of which is ensured by the Court (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 63 and the case-law cited).
66


At the same time, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights enshrined by the Charter as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in accordance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 70 and the case-law cited).
70


In that regard, it should be recalled that preventing criminal offences being committed against persons in prostitution, in particular human trafficking, forced prostitution and child prostitution, constitutes an overriding reason relating to the public interest (see, to that effect, judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 68).
71


In addition, it follows from the settled case-law of the Court that the protection of public health is one of the overriding reasons in the public interest recognised by EU law (judgment of 1 March 2018, CMVRO, C‑297/16, EU:C:2018:141, paragraph 57).
78


It follows from the case-law of the Court that the effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that the person concerned be able to ascertain the reasons upon which the decision taken by an administrative authority in relation to him is based, either by reading the decision itself or by communication of those reasons on its request, without prejudice to the power of the court having jurisdiction to require the authority concerned to communicate them so as to enable him to defend his rights in the best possible conditions and to decide in full knowledge of the circumstances whether it is worthwhile applying to the court having jurisdiction, and in order to put the latter fully in a position to carry out the review of the lawfulness of the national decision in question (judgments of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 53, and of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 84).
79


Moreover, the right to be heard in all proceedings, which is affirmed by Articles 47 and 48 of the Charter and which forms an integral part of respect for the rights of the defence, which is a general principle of EU law, requires the authorities to pay due attention to the observations submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision; the obligation to state reasons for a decision are sufficiently specific and concrete to allow the person concerned to understand the reasons for the refusal of his request is thus a corollary of the principle of respect for the rights of the defence (see, to that effect, judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraphs 43, 45 and 48).
80


When the authorities of the Member States take measures which come within the scope of EU law, they are, as a rule, subject to the obligation to observe the rights of defence of addressees of decisions which significantly affect their interests (judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 50).
81


The requirement that the national administrative authorities state reasons is particularly important in a case such as that in the main proceedings, in which it must be determined whether a restriction of the freedom of establishment within the meaning of Article 49 TFEU and the rights of establishment and to conduct a business, enshrined in Article 15(2) and Article 16 of the Charter respectively, is justified and proportionate.
82


In that connection, it has been established that it is for the national courts to carry out a global assessment of the circumstances in which restrictive legislation was adopted and implemented on the basis of the evidence provided by the competent authorities of the Member State, seeking to demonstrate the existence of objectives capable of justifying a restriction of a fundamental freedom guaranteed by the FEU Treaty and its proportionality (see, to that effect, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 53).
83


While those courts may be required, under national procedural rules, to take the necessary measures in order to encourage the production of such evidence, they cannot, in contrast, be required to substitute themselves for those authorities in setting out the justifications which it is the duty of the latter to provide. Should such justifications not be provided through absence or passivity of those authorities, the national courts must be able to draw all inferences which result from such failure (judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 54).