Openbaar Ministerie v Freddy Lucien Magdalena Kirschstein and Thierry Frans Adeline Kirschstein.
Date: 2019-07-04
21


In this respect, it should be noted, on the one hand, that the Member States are bound, when exercising the areas of competence reserved to them, to comply with EU law and, on the other hand, that it does not follow from any element of Directive 2005/29 or Directive 2006/123 that higher education services would fall outside the respective scope of those directives. Consequently, the competence of the Member States for the organisation of their education systems cannot have the effect of removing legislation such as that at issue in the main proceedings from the scope of those directives (see, by analogy, judgment of 18 December 2007, Jundt, C‑281/06, EU:C:2007:816, paragraphs 86 and 87).
24


However, even if it must be assumed that the ‘master’s’ degrees in question in the main proceedings were awarded by a Belgian company and that all the relevant elements of the case at issue in the main proceedings are therefore confined to a single Member State, it is clear from the Court’s case-law that the provisions of Chapter III of Directive 2006/123, to which the second and third questions referred relate, also apply to such a situation (see, to that effect, judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 110).
25


Moreover, the arguments drawn from GES Switzerland’s specific role in that case cannot, in any event, succeed. It is apparent from the information provided, at the Court’s request, by the referring court, which has sole jurisdiction to establish the facts of the main proceedings (see, to that effect, judgments of 28 July 2016, Kratzer, C‑423/15, EU:C:2016:604, paragraph 27, and of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 35), that that role has not been established and that the ‘master’s’ degrees at issue in the main proceedings could have been awarded either by a Belgian company or by a Swiss company and a Spanish company.
28


However, those differences of interpretation concern the substance of those questions and they cannot, therefore, lead to a finding that those questions are inadmissible. The fact that those differences of interpretation relate in part to the applicability of those directives cannot call into question that assessment, since, where it is not obvious that the interpretation of a Union provision bears no relation to the facts of the main action or its purpose, the objection alleging the inapplicability of that provision to the case in the main action does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions raised (see, to that effect, judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 30).
32


Nevertheless, the fact remains that the tenor of the criminal provision to which the second question directly relates is clearly set out in the decision to refer and that the information contained in that decision is sufficient to enable the Court to formulate certain useful indications for the national court, which is solely responsible for deciding on the conformity of the Belgian rules with EU law (see, to that effect, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 126 and the case-law cited), to decide the dispute before it.
34


It should be borne in mind that it is not for the Court, in the context of the system of judicial cooperation established by Article 267 TFEU, to give a ruling on the interpretation of provisions of national law, or to decide whether the referring court’s interpretation of those provisions is correct (judgment of 26 March 2015, Macikowski, C‑499/13, EU:C:2015:201, paragraph 51 and the case-law cited).
38


According to settled case-law of the Court, national legislation is only likely to fall within the scope of Directive 2005/29 if the conduct referred to in that legislation constitutes commercial practices within the meaning of that directive (see, to that effect, judgments of 14 January 2010, Plus Warenhandelsgesellschaft, C‑304/08, EU:C:2010:12, paragraph 35, and of 17 October 2013, RLvS, C‑391/12, EU:C:2013:669, paragraph 35).
41


The practices thus referred to must, in particular, be directly connected with the promotion, sale or supply of a product to consumers (see, to that effect, judgments of 17 October 2013, RLvS, C‑391/12, EU:C:2013:669, paragraph 37, and of 4 October 2018, Kamenova, C‑105/17, EU:C:2018:808, paragraph 42).
43


Thus, practices which form part of a service provider’s commercial strategy and which are directly connected with the promotion and sale of its services constitute commercial practices (see, to that effect, judgments of 9 November 2010, Mediaprint Zeitungs- und Zeitschriftenverlag, C‑540/08, EU:C:2010:660, paragraph 18, and of 17 October 2013, RLvS, C‑391/12, EU:C:2013:669, paragraph 36).
44


In this context, the Court has been led to link the applicability of Directive 2005/29 both to the quality of commercial practices of the practices in question and to the product quality of the services concerned, to which those practices related, without confusing those two elements (see, to that effect, judgments of 4 May 2017, Vanderborght, C‑339/15, EU:C:2017:335, paragraphs 23 to 25, and of 13 September 2018, Wind Tre and Vodafone Italia, C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 39).
53


It is also apparent from the Court’s case-law that the organisation, for remuneration, of higher education services by institutions mainly financed by private funds and seeking to make a commercial profit, constitutes such an economic activity (see, to that effect, judgments of 7 December 1993, Wirth, C‑109/92, EU:C:1993:916, paragraph 17, and of 13 November 2003, Neri, C‑153/02, EU:C:2003:614, paragraph 39).
57


In the second place, it follows from the Court’s case-law that university teaching activities, being activities of civil society, do not constitute activities which are connected with the exercise of official authority within the meaning of that provision (judgment of 18 December 2007, Jundt, C‑281/06, EU:C:2007:816, paragraph 38).
59


Indeed, the derogation provided for under Article 2(2)(i) of Directive 2006/123 must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority, which requires a sufficiently qualified exercise of prerogatives outside the general law, privileges of official power or powers of coercion (see, by analogy, judgment of 29 April 2010, Commission v Germany, C‑160/08, EU:C:2010:230, paragraphs 78 and 79).
72


Those two objectives must be regarded as constituting overriding reasons relating to the public interest. On the one hand, Article 4(8) of that directive specifies that the reasons recognised as such in the case-law of the Court must be regarded as overriding reasons relating to the public interest and specifically mentions the protection of recipients of services as meeting that criterion. On the other hand, the Court has already held that the two objectives mentioned in paragraph 71 of this judgment constitute overriding reasons relating to the public interest (see, to that effect, judgments of 21 October 1999, Zenatti, C‑67/98, EU:C:1999:514, paragraph 31 and the case-law cited, and of 13 November 2003, Neri, C‑153/02, EU:C:2003:614, paragraph 46).
80


Under that provision, the conditions for grant of an authorisation must be non-discriminatory, justified by imperative reasons in the general interest and proportionate to that objective, which means that they are suitable for securing the attainment of that objective and do not go beyond what is necessary in order to attain it. Moreover, that provision requires that those conditions be clear and unambiguous, objective, transparent, accessible and made public in advance (judgment of 26 September 2018, Van Gennip and Others, C‑137/17, EU:C:2018:771, paragraph 80).