(References for a preliminary ruling – Directive 2011/16/EU – <mask> in the field of taxation – Articles 1 and 5 – Decision ordering that information be provided to the competent authority of a Member State, acting in response to a request for exchange of information from the competent authority of another Member State – Person holding the information the production of which is ordered by the competent authority of the first Member State – Taxpayer concerned by the investigation giving rise to the request from the competent authority of the second Member State – Third parties with whom that taxpayer maintains legal, banking, financial or, more broadly, economic relations – Judicial protection – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy – Article 52(1) – Limitation – Legal basis – Respect for the essence of the right to an effective remedy – Existence of a remedy enabling the individuals in question to obtain an effective review of all the relevant issues of fact and of law, as well as effective judicial protection of the rights guaranteed to them by EU law – Objective of general interest recognised by the Union – Combating international tax fraud and tax evasion – Proportionality – Whether the information referred to in the information order is ‘foreseeably relevant’ – Judicial review – Scope – Personal, temporal and material factors to be taken into consideration)


So far as concerns the second component of the first condition for <mask> of the European Union, it is also apparent from the case-law cited in paragraph 33 of the present judgment that non-contractual liability of the European Union can arise only if the institution concerned manifestly and gravely disregarded the limits set on its discretion. It is, furthermore, clear from that case-law that, in order to determine whether a breach of a rule of EU law is sufficiently serious, the EU judicature takes into account inter alia the complexity of the situations to be regulated, the difficulties in applying or interpreting the legislation and, more particularly, the margin of discretion available to the author of the act in question.


In that connection, I would point out that, in the context of actions for <mask> of the European Union, symbolic forms of compensation or the mere recording in the judgment of the unlawful event might constitute satisfactory compensation for the purposes of Article 340 TFEU: see, inter alia, judgments of 14 June 1979, V. v Commission (18/78, EU:C:1979:154, paragraph 19); of 9 July 1981, Krecké v Commission (59/80 and 129/80, EU:C:1981:170, paragraph 74); and of 9 July 1987, Hochbaum and Rawes v Commission (44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22). This practice appears consistent with that of the ECtHR: see, among others, judgments of 23 November 1976, Engel and Others v. the Netherlands (CE:ECHR:1976:1123JUD000510071, §§ 10 to 11); of 17 October 2002, Agga v. Greece (CE:ECHR:2002:1017JUD005077699, §§ 65 to 66); and of 30 November 2004, Vaney v. France (CE:ECHR:2004:1130JUD005394600, §§ 55 to 57).


For the purpose of providing an interpretation which would be useful to the system for the allocation of international jurisdiction among the Member States, the Court retained the possibility of using both connecting factors. The solution (which was the most reasonable for that case) became a paradigm. It makes sense at a purely theoretical level, given that any <mask> requires an event, damage, and a causal link between the two.


In accordance with the conditions developed in Francovich   ‐ which applies by analogy   ‐ in order for the European Union to incur <mask> under the second paragraph of Article 340 TFEU in respect of the unlawful conduct of its institutions, three conditions must be satisfied. These are, first, the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, second, the fact of damage and, third, the existence of a causal link between the breach of the obligation resting on the perpetrator of the act and the damage sustained by the injured parties.


As I have already stated, I am fully inclined to accept that the action of the Council concerning restrictive measures is subject to particular constraints and that those constraints should be given due regard when assessing whether the European Union should incur <mask>. However, there is nothing in the documents before the Court to indicate that, in the specific case of HTTS’s listing by the measures at issue, the Council had faced such constraints and, in any event, it is for the Council to explain the complexity of the situation that it had to face at the time when the restrictive measures were adopted in order for the EU Court to be able, possibly, to take this into account in determining whether the conduct complained of constitutes a sufficiently serious breach of EU law.


Third, the Council does not accept the concern expressed by the General Court, in paragraph 114 of the first judgment under appeal and paragraph 110 of the second judgment under appeal, that failure to accept that actions may be brought against the Euro Group to establish <mask> of the European Union creates a loophole with regard to effective judicial protection, the principle of which is laid down in the second subparagraph of Article 19(1) TEU.


Finally, so far as concerns the alleged lack of justification for the inclusion of HTTS in the lists at issue following the annulment, by the judgment of 16 September 2013, Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453), of the acts including IRISL, HDSL and SAPID in the lists concerning them, the General Court held, in paragraphs 62 and 63 of the judgment under appeal, first, that that annulment is not sufficient, by itself, to establish that the inclusion of HTTS in the lists at issue was vitiated by a sufficiently serious breach such as to give rise to <mask> of the European Union. Second, the General Court found that the inclusion of HTTS in the lists at issue was founded essentially on a report of the Sanctions Committee of the United Nations Security Council establishing three manifest breaches by IRISL of the arms embargo instituted by Security Council Resolution 1747 (2007) of 24 March 2007. The General Court held that, having regard to the conclusions set out in that report, the finding that IRISL was involved in the nuclear proliferation activities of the Islamic Republic of Iran could not be regarded as manifestly erroneous.


If, subsequent to that ex post definitive valuation, the SRB were to decide not to compensate the appellants through a write-back of their bonds, the SRB’s decision, and, potentially, the definitive valuation under Article 20(15) of Regulation No 806/2014, could, in any event, be challenged by bringing an action for annulment, an action for failure to act or an action to establish <mask> under Article 340 TFEU.


The Court of Justice of the European Union has exclusive jurisdiction, to the exclusion of national courts, to hear and determine an action for <mask> brought by a former member of the temporary staff of the European Commission on account of wrongful conduct which he attributes to the member of that institution, for whom he was an employee and which, it is claimed, led the institution to terminate the employment relationship with that member of staff. Such an action must be directed not against the member of the Commission concerned, but against the European Union, represented by the Commission.


By its fourth question, which it is appropriate to examine in the first place, the referring court is asking, in essence, whether the Court of Justice of the European Union has jurisdiction to hear and determine an action for <mask> brought by a former member of the temporary staff of the Commission on account of wrongful conduct which he attributes to the member of that institution for whom he was an employee and which, it is claimed, led the institution to terminate the employment relationship with that member of staff.


For all of those reasons, and without prejudging the conclusion that the General Court will reach following an analysis which does not contain any errors of law regarding the first of the conditions governing the establishment of <mask> on the part of the European Union, I propose that the Court should refer the case back to the General Court in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice.


As regards the condition that the breach of the legal rule must be sufficiently serious in order for the European Union to incur <mask>, the applicant submits that the judgments of 22 November 2017, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P, EU:C:2017:882), and of 7 October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767) do not leave any room for doubt as to whether the Commission’s manifest error of assessment, that is to say, its failure to have regard to the actual scope of its discretion when adopting the unlawful classification of CTPHT, constitutes such a breach.


Finally, if an institution could rely on any relevant matter that was not taken into account when the decision concerned was adopted in order to demonstrate that it did not commit a breach of a rule of EU law sufficiently serious to give rise to <mask> of the European Union, the outcome of the action for damages could vary according to the date on which it was brought. The award of compensation for the damage suffered on account of the conduct of the EU institutions would depend, in that context, on whether during the five-year period, prescribed in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, in which an action for damages may be brought any matter that was not taken into account at the time of adoption of the decision concerned enabled the institution that adopted it to justify its actions.


The conclusion regarding the legal nature of the Euro Group which precludes its classification as an institution within the meaning of the second paragraph of Article 340 TFEU does not undermine the full application of the principle of effective judicial protection, nor does it contradict the notion of a ‘Union based on the rule of law’. Indeed, individuals are ensured judicial protection by the fact that they can bring an action in <mask> against institutions which adopt acts and conduct giving effect to and developing on the conclusions of the Euro Group.


43. Leaving aside the classic question of categorising a provision of the Charter as ‘enshrining a right or a principle’, it is clear from the case-law of the Court that the infringement of certain rights, such as that corresponding to the administration’s obligation to give reasons for its decisions, which is expressly referred to in Article 41(2)(c) of the Charter, does not always give rise to <mask> on the part of the European Union. (40) Thus, the Court itself does not appear to regard its inclusion in the Charter as decisive of whether the right to sound administration is to be classified as a right intended to confer rights on individuals. It is not the case that every obligation of the administration automatically gives rise to a subjective right on the part of individuals.


In order to assess whether the unlawful act committed by the Commission is capable of resulting in the European Union incurring <mask>, it must be ascertained first whether the applicant has established the existence of a breach, in the present case, of a rule of law intended to confer rights on individuals within the meaning of the case-law, then whether the breach of that rule of law was sufficiently serious within the meaning of the case-law.


HTTS submits that the General Court, in particular in paragraphs 49 and 50 of the judgment under appeal, erred in law in holding that the Council could rely on information and material that were not available to it when HTTS was included in the lists at issue, in order to demonstrate that it had not committed a breach of a rule of EU law sufficiently serious to give rise to <mask> of the European Union. In the appellant’s submission, the General Court had to place itself at the date on which the restrictive measures concerned were adopted in order to decide whether, on the basis of the material available to it, an administrative authority exercising ordinary care and diligence would have acted in the same way as the Council in the case in point.


Second, SatCen alleges that the General Court erred in law in concluding, in paragraphs 118 to 123 of the judgment under appeal, that the respondent’s action for annulment falls within the scope of Article 263 TFEU, and that her claim for <mask> falls within that of Article 268 TFEU. In particular, SatCen contends that the respondent, as a member of staff of SatCen, cannot be considered a ‘third party’ within the meaning of the first paragraph of Article 263 TFEU. In addition, the judgment in H v Council and Others   cannot, in SatCen’s view, be applied by analogy, as the case at hand concerns a contractual agent, rather than an agent seconded by a Member State or an EU institution.


Does it follow from the principles of EU law of equivalence and effectiveness that a national court is obliged to regard, of its own motion, an action as having been brought on the ground of a breach of an obligation arising from Article 4(3) of the Treaty on European Union (TEU) by a Member State if the action relates to the <mask> of the Member State for losses arising from an infringement of EU law that were allegedly caused by an authority of a Member State, and


Since Regulation No 961/2010 was annulled by the judgment of the General Court of 7 December 2011, HTTS v Council (T‑562/10, EU:T:2011:716), which, since an appeal was not brought against it within the time limit, had the force of res judicata, the first component of the first condition for <mask> of the European Union was already fulfilled as regards that regulation (see, to that effect, judgment of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraphs 41 to 45).


It is apparent from all the foregoing that the General Court committed an error of law in the interpretation and application of the second paragraph of Article 340 TFEU by holding, in paragraphs 113 and 114 of the first judgment under appeal and paragraphs 109 and 110 of the second judgment under appeal, that, if the principle of the Union’s being based on the rule of law was not to be infringed, the Euro Group had to be regarded as an EU body established by the Treaties whose acts or conduct could form the subject matter of an action before the EU judicature to establish <mask> of the European Union.


98 Secondly, contrary to what the General Court held in the order under appeal, the alleged illegality was not the same in the two claims. On the one hand, in the claim for annulment, the appellants argued that the acts at issue which make up the legislative package regarding greenhouse gas emissions were vitiated by errors of law, having regard to higher-ranking rules of law. On the other hand, the claim invoking the <mask> of the Union is based on a broader breach of higher-ranking rules of law, which began in 1992. That breach is a continuous one. The European Union’s failure to adopt adequate emission reductions in the legislative package regarding greenhouse gas emissions is only one aspect of that continuous breach.


(Reference for a preliminary ruling – Articles 268, 270, 340 and 343 TFEU – Protocol (No 7) on the privileges and immunities of the European Union – Articles 11, 17 and 19 – Former member of the Commission – Immunity of jurisdiction – Action for <mask> – Waiver – Jurisdiction of the Court of Justice of the European Union)


I therefore share the reservations as regards an interpretation of Article 7(2) of Regulation No 1215/2012 which, in matters of <mask> in connection with investments in securities, is based on the fiction that immaterial damage occurs in a particular place, and which also requires the existence of a set of specific circumstances in order to attribute jurisdiction to the courts of that place.


As regards the question whether, in circumstances such as those at issue in the main proceedings, it is possible, for the referring court, in addition, to apply the rules of its national law governing <mask>, it suffices to note that the purpose of Directive 93/13, in accordance with Article 1(1) thereof, is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer and that it does not contain any provisions relating to non-contractual liability.


The referring court, in the context of assessing its jurisdiction to rule on the substance of the dispute, states that AU based his action on civil liability in tort, that is to say <mask>, to which, in principle, Regulation No 864/2007 applies, whilst relying on his status as a consumer, so that legal jurisdiction may then be determined on the basis of the provisions of Article 17(1)(c) of Regulation No 1215/2012.


See, with regard to the conditions governing the <mask> of EU bodies, judgments of 29 September 1982, Oleifici Mediterranei v EEC (26/81, EU:C:1982:318, paragraph 16), and of 18 March 2010, Trubowest HandelandMakarov v Council and Commission (C‑419/08 P, EU:C:2010:147, paragraph 40). See, for compensation claims by individuals against Member States on the grounds of infringement of EU law, judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 40); of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51); and of 14 March 2013, Leth (C‑420/11, EU:C:2013:166, paragraph 41).


The function of that restriction would therefore be disregarded if it were accepted that the <mask> of the Union could be incurred in order to compensate for damage caused to an individual by the infringement of a rule of law which does not create any rights in his or her favour, but which has the object of conferring rights on a third party.


The European Union may incur <mask> under that provision only if a number of conditions are fulfilled, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 64 and the case-law cited).


‘The SRM [Single Resolution Mechanism] brings together the [Single Resolution Board; ‘the Board’], the Council, the Commission and the resolution authorities of the participating Member States. The Court of Justice has jurisdiction to review the legality of decisions adopted by the Board, the Council and the Commission, in accordance with Article 263 TFEU, as well as for determining their <mask>. Furthermore, the Court of Justice has, in accordance with Article 267 TFEU, competence to give preliminary rulings upon request of national judicial authorities on the validity and interpretation of acts of the institutions, bodies or agencies of the Union. National judicial authorities should be competent, in accordance with their national law, to review the legality of decisions adopted by the resolution authorities of the participating Member States in the exercise of the powers conferred on them by this Regulation, as well as to determine their non-contractual liability.’


However, pursuant to the first paragraph of Article 340 TFEU, it is for the Union to ‘make good any damage caused by its institutions or by its servants in the performance of their duties’. As the Court has emphasised as far back as 1969, in respect of <mask>, the Treaties provide for a ‘uniform system’ in compensating for damage caused by its institutions and by its servants in the performance of their duties.


It follows from paragraphs 127 to 130 of the present judgment that the General Court rightly held, in paragraph 124 of the judgment under appeal, that the rules relied on in that regard by Mr Dalli were not intended to confer rights on him and that that finding was sufficient to exclude the Union’s <mask> arising from the making of that recording.


The option available to individuals to claim, before the EU courts, that the European Union has incurred <mask> is based on the notion that the European Union is based on the rule of law, and is the final step in protecting individuals from actions on the part of the EU institutions where those actions have caused damage.   A Union based on the fully complete rule of law requires that, where the Council acts within the context of the CFSP and then adopts restrictive measures, it is not immune from being held liable.


Thirdly, even if on this occasion all of the conditions for <mask> on the part of the European Union to be established were satisfied, the amount of compensation for the damage would still need to be determined and/or a decision would still need to be taken on the argument raised by the Council that the action for damages is time-barred, an argument which was not addressed by the General Court and, therefore, could not be debated between the parties in the appeal proceedings.


It is apparent from the settled case-law cited above that it is also appropriate to reject the applicant’s argument that a manifest error of assessment is, in all circumstances, a sufficiently serious breach of a rule leaving scope for discretion. As observed in paragraphs 80 to 83 above, as an action for damages is an independent form of action, the fact that a measure adopted by the Commission is unlawful is not, in itself, enough for the European Union to incur <mask>. The characterisation of an error of assessment as manifest relates to the overstepping of the limits of discretion and is therefore intended to distinguish situations in which that overstepping constitutes a breach of law from situations in which there is a mere disagreement over the appropriate exercise of that discretion. Consequently, where the institution in question has broad discretion, a finding that a sufficiently serious breach has occurred can be made only after it has been found that a manifest error of assessment has been committed, with the purpose of identifying, based on the criteria referred to in paragraph 88 above, the most serious and inexcusable errors that amount to a manifest and serious failure to have regard to the limits imposed on the discretion of the institution concerned.


… 114 In the light of the foregoing, the error committed by the Commission therefore appears to be excusable. Given the lack of clarity and the difficulties in interpreting the relevant provisions in Annex I to Regulation No 1272/2008 regarding the consideration that can be given to factors other than those expressly provided for when applying the summation method, the Commission’s conduct is close to that which could reasonably be expected from an administrative authority exercising ordinary care and diligence in an analogous situation, that is to say, a situation characterised by scientific complexity connected to the classification of a substance of unknown composition such as CTPHT with the purpose of ensuring a high level of protection of human health and the environment. That conduct is not equivalent to a manifest and grave disregard of the limits on the Commission’s discretion. Therefore, the error committed does not constitute a sufficiently serious breach of a rule of law, with the result that the European Union has not, in any event, incurred <mask> in the present case. That finding applies equally to the infringement of the summation method and, for the sake of completeness and on the grounds set out above, to the alleged breach of the duty of diligence. [(16)]’ V. Procedure before the Court


Finally, the interpretation according to which all damages claims arising from the employment relationship with an EU institution must be brought under Article 270 TFEU provides more clarity and predictability regarding the rules of jurisdiction before the EU Courts, enhancing respect for the rule of law.   In offering a clear delineation between jurisdiction under Articles 268 and 270 TFEU for actions in damages on the basis of <mask> of the European Union, such an interpretation helps to define the judicial architecture of the European Union   and enhances individual access to the EU Courts.


(Appeal — Arbitration clause — Contract staff of EU international missions — Common Foreign and Security Policy — Jurisdiction of the EU Courts — Contractual dispute — Admissibility — Concept of act separable from its contractual context — Partial reclassification of the action — Action for annulment — Contractual liability — <mask> — Articles 263, 268, 272 and 340 TFEU)


In support of its appeal, the Commission relies on five grounds of appeal, alleging (i) infringement by the General Court of the rights of the defence and of the principle of ne ultra petita; (ii) incorrect interpretation of Article 266 TFEU; (iii) failure by the General Court to take account of the new regulatory framework in the field of competition; (iv) an error of law as regards the conditions for establishing <mask> of the European Union; and (v) infringement of the principles of legality and legal certainty.


As regards actions concerning the <mask> of the European Union, it should be recalled that, under the second paragraph of Article 340 TFEU, the European Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.


Beginning with the judgment in Bier,   the Court has divided the concept of a ‘harmful event’, within the meaning of Article 5(3) of the Brussels I Regulation, into two separate concepts: the ‘harm’ (or ‘damage’) and ‘the event giving rise to the damage’.   In that context, the Court has had regard to the components of <mask>, as they emerge from the general principles stemming from the national legal systems of the Member States.   It has thus held that ‘liability in tort, delict or quasi-delict can only arise provided that a causal connexion can be established between the damage and the event in which that damage originates’.


(Appeal – Action for damages – <mask> of the European Union – Allegedly illegal conduct of the European Commission and the European Anti-Fraud Office (OLAF) – Termination of office of a Member of the Commission – Procedural rules governing the OLAF investigation – Opening of an investigation – Right to be heard – OLAF Supervisory Committee – Presumption of innocence – Assessment of the alleged damage)


Having regard to the finding of the General Court, confirmed by the Court of Justice, that the Commission infringed, in this case, a rule affording it some discretion, it is appropriate to reject the applicant’s argument that the Commission considered that the summation method was a strict rule leaving it no scope for discretion. The damage that the applicant could potentially rely on stems from the Commission’s manifest error of assessment in applying that method. However, that same method cannot, for the purposes of determining the <mask> of the authority that applied it, be regarded as both leaving scope for discretion as regards the infringement criterion and leaving no scope for discretion as regards the sufficiently serious breach criterion.


Moreover, the legal basis for the Council’s ability to rely on evidence which postdates the measure at issue — and thus to excuse, a posteriori, the conduct complained of — cannot, as the General Court maintains in paragraph 49 of the judgment under appeal, stem from the fact that, ‘unlike an action for annulment, an action based on <mask> may be brought up to five years after the occurrence of the event giving rise to the damage’. In stating that ‘the institution in respect of which non-contractual liability is said to have arisen is, in principle, entitled to rely, by way of defence, on all relevant facts and matters occurring before the action for damages was, within that five-year period, brought against it, just as the applicant is entitled to rely on evidence postdating the occurrence of damage in order to prove the scope and extent of such damage’,   the General Court erred in law and clearly confused the two different time frames of the two just as separate conditions for the arising of non-contractual liability of the European Union. In order to determine whether there was a sufficiently serious breach of EU law, the court must assess the conduct of the institution at the time when the measure at issue was adopted — in the present case, the individual decisions which made HTTS subject to restrictive measures in 2010. The Court of Justice did not rule otherwise in Safa Nicu Sepahan v Council   in holding that ‘the obligation on the Council to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures … was already apparent, at the time when the provisions at issue were adopted, from well-established case-law’.   The sufficiently serious breach must be understood as a concept fixed at a particular time: the time of the conduct complained of. Furthermore, still in the context of Case C‑45/15 P, the Council seemed to share that static view of the sufficiently serious breach since it submitted that ‘the case-law on the basis of which it [was] for the Council, in the event of a challenge, to provide information or evidence substantiating the reasons for the adoption of restrictive measures … was not clearly settled at the time when the first of the provisions at issue was adopted’.   By contrast, the damage, which necessarily postdates   the event giving rise to it, may evolve over time (in principle it will worsen) and is the dynamic component of the three conditions governing the European Union’s non-contractual liability. It is therefore only logical that the party which considers that it has suffered damage on account of action on the part of an institution must be able to rely on matters which postdate the event giving rise to it — the sufficiently serious breach — in order to attest to the existence of such damage.


27 It is necessary to note, as a preliminary point, that the legal remedy provided for in Article 265 TFEU is based on the premiss that unlawful inaction on the part of an institution makes it possible to bring an action before the EU courts seeking a declaration that the failure to act is contrary to the FEU Treaty (see, to that effect, judgment of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraph 22 and the case-law cited). Under Article 266 TFEU, such a declaration has the effect that that institution is required to take the necessary measures to comply with the judgment of the EU court, without prejudice to any actions to establish <mask> to which that declaration may give rise. However, where the act whose absence constitutes the subject matter of the proceedings was adopted after the action was brought under Article 265 TFEU but before judgment, a declaration by the EU court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU (see, to that effect, order of 13 December 2000, Sodima v Commission, C‑44/00 P, EU:C:2000:686, paragraph 83).


In that regard, as is apparent from Article 17(1) TEU, the Commission ‘shall promote the general interest of the Union’ and ‘shall oversee the application of Union law’ (judgments of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 163, and of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 57). It therefore retains, in the context of its participation in the activities of the Euro Group, its role of guardian of the Treaties. It follows that any failure on its part to check that the political agreements concluded within the Euro Group are in conformity with EU law is liable to result in <mask> of the European Union being invoked under the second paragraph of Article 340 TFEU.


Since the 19th century, French civil liability law has been based on the principle of non-cumulation of liability ex delicto, on the one hand, and liability ex contractu, on the other, which means: (a) that a person cannot incur liability on both grounds at the same time; and (b) that, where the parties are bound by a valid contract and the loss suffered by one is the result of the non-performance or defective performance of contractual obligations by the other, <mask> is discarded in favour of contractual liability.


(Reference for a preliminary ruling – Articles 268, 270, 340 and 343 TFEU – Protocol (No 7) on the privileges and immunities of the European Union – Articles 11, 17 and 19 – Former member of the European Commission – Immunity from jurisdiction – Claim for <mask> – Waiver of immunity – Jurisdiction of the Court of Justice of the European Union)


It will be recalled that Article 46 of the Statute of the Court of Justice of the European Union provides that proceedings against the European Union in matters arising from <mask> are to be barred after a period of five years from the occurrence of the event giving rise thereto. It will therefore be for the General Court to determine the exact date on which the enrichment (and the associated impoverishment) occurred.


By their second ground of appeal, which it is appropriate to examine in the first place, the appellants claim that the Court should set aside the legal ground of the order under appeal that their reasoning concerning the letter of 5 March 2018 must be rejected as inadmissible, since they did not specify the reasons for which, assuming that they intended to support such an argument, that letter gives rise to the EU’s <mask>.


In support of the action, the applicant submits, firstly, that his request for assistance under Article 24 of the Staff Regulations was admissible and that his action seeking the annulment of the rejection of that request is therefore likewise admissible. Secondly, and as his principal claim, he seeks to establish the EU’s <mask> for the Commission’s alleged disregard of his status as a whistle-blower and, in the alternative, he requests that the contested decision be annulled.


99. The only exception that seems, at least at first glance, to support the arguments put forward by the Council is the second paragraph of Article 340 TFEU. That provision, which concerns the <mask> of the Union, has been interpreted by the Court in the sense that the term ‘institution’, within the meaning of that provision, encompasses not only the EU institutions listed in Article 13(1) TEU but also all the EU bodies, offices and agencies that have been established by or under the Treaties and are intended to contribute to the achievement of the European Union’s objectives. (61)


By applications lodged at the Registry of the General Court on 20 December 2013 in Case T‑680/13 and 1 December 2014 in Case T‑786/14, the applicants at first instance in Cases C‑597/18 P and C‑598/18 P brought actions asking the General Court to order the Council, the Commission, the ECB and the Euro Group (‘the defendants’) to pay them the sums shown in the schedules annexed to their applications plus interest accruing from 16 March 2013 until the judgments of the General Court, or, in the alternative, to find that the European Union and/or the defendants had incurred <mask> and to determine the procedure to be followed in order to establish the recoverable loss which they had actually suffered.


In addition, such reasoning cannot be easily reconciled with the more general case-law on the conditions governing the <mask> of the European Union, in particular as regards the condition relating to the existence of a breach of a rule of law conferring rights on individuals, a breach which, according to case-law, must be ‘sufficiently serious’. The decisive criterion for finding that a breach of EU law is sufficiently serious is that the institution concerned manifestly and gravely disregarded the limits set on its discretion.


In any event, it should be recalled that, according to settled case-law, in order for the European Union to incur <mask> under the second paragraph of Article 340 TFEU for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (see order of 6 September 2011, Mugraby v Council and Commission, T‑292/09, not published, EU:T:2011:418, paragraph 54 and the case-law cited). In particular, it should be recalled that the damage for which compensation is sought in an action to establish non-contractual liability on the part of the European Union, under the second paragraph of Article 340 TFEU, must be actual and certain, which it is for the applicant to prove. It is for the latter to adduce conclusive proof as to both the existence and the extent of the damage that he alleges (see judgment of 6 September 2018, Klein v Commission, C‑346/17 P, EU:C:2018:679, paragraph 147 and the case-law cited).


The General Court concluded, in paragraph 32 of the judgment under appeal, that it did not have jurisdiction to hear the appellant’s action in so far as it sought damages for the harm allegedly caused by the restrictive measures provided for in Decisions 2010/413, 2010/644 and 2011/783, and that it had jurisdiction to rule on the action only in so far as it was based on <mask> of the European Union arising from Regulations Nos 961/2010 and 267/2012 and Implementing Regulation No 1245/2011.


By the fifth ground of appeal, alleging infringement of Article 268 TFEU and the second paragraph of Article 340 TFEU, the right to fair and just working conditions and the right to sound administration, along with infringement of Article 272 TFEU and the first paragraph of Article 340 TFEU and the requirements set out in the 2014 call for contributions, SC submits that the General Court erred in law, in paragraphs 57 to 64, read together with paragraph 74, of the order under appeal, by holding that the claims based on Eulex Kosovo’s contractual and <mask> relating to the repeated requests to take a driving test were manifestly lacking any foundation in law.


In any event, as regards, in the first place, the complaint alleging that the restrictions on the right to property were not laid down in law and, in particular, the appellants’ argument that, at the time when the measures referred to in paragraph 124 of the present judgment were adopted, the European Union could not require any bail-in or the resolution of the banks concerned, it must be found, first, that, as the General Court correctly observed in paragraph 284 of the first judgment under appeal and paragraph 283 of the second judgment under appeal, the absence, at the material time, of EU harmonisation measures in relation to bail-ins of banks does not mean that Member States were precluded from adopting bail-in measures, but their adoption cannot give rise to <mask> of the European Union. Second, regarding the bank resolution regime, since the General Court did not rule on whether that regime had a legal basis in EU law at the material time, the appellants’ argument in that regard must be rejected as ineffective.


In the judgment under appeal, first, the General Court found that it had jurisdiction to rule on the dispute. That jurisdiction stemmed, respectively, as regards the review of the legality of the contested decisions, from Article 263 TFEU and, as regards claims for the <mask> of the European Union, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).   Next, the General Court dismissed SatCen’s plea of inadmissibility based on the existence of an employment relationship of a contractual nature between the respondent and SatCen.   The General Court then upheld SatCen’s pleas of inadmissibility concerning the claim for annulment of the decision to reject the request for assistance (as the respondent had failed to observe the prior administrative procedure) and of the decision to initiate disciplinary proceedings (being merely a preparatory act).   Lastly, the General Court held the arguments alleging the illegality of the proceedings before the Disciplinary Board to be admissible.


However, the Court considers that the case-law cited in paragraph 58 above does not necessarily exclude the possibility that the European Union may incur <mask> as a result of the infringement of a rule of law which is not intended stricto sensu to confer rights on individuals, but rather is likely to lead to the imposition or strengthening of obligations on individuals pursuant to other rules of EU law. In a similar manner to the approach adopted by the Court of Justice regarding the circumstances in which the rules of customary international law may be relied on (judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 107), it could be considered that the unlawful conduct of an EU institution affecting the legal situation of a natural or legal person – made up of its rights and, inversely, its obligations – can, in certain cases, justify the European Union’s incurring non-contractual liability, whether as a result of the infringement of rights or the addition or strengthening of unlawful obligations. In that regard, in the light of the adverse effect on that legal situation, the question whether the administration’s allegedly unlawful conduct consisted in the infringement of rights or led to the addition or strengthening of obligations under EU law might be irrelevant, depending on the circumstances of the case. Nevertheless, in the present case, although the summation method rule does not, in itself, confer rights on individuals, the question remains whether the obligations triggered by an incorrect application of the summation method are capable of affecting the applicant’s legal situation such that the latter can be considered to have, in fine, a personal right to the correct application of the summation method or whether, conversely, those obligations are merely a purely indirect consequence of the application of that rule affecting only the applicant’s economic situation.


In the present case, it should be noted that the applicants’ line of argument alleging a serious breach of their fundamental rights and those of UPS by the Commission and the existence of serious and manifest errors in the Commission’s assessment of the concentration between UPS and TNT relates to the first condition for the <mask> of the European Union to be incurred, whereas the line of argument alleging that those illegalities directly caused them damage and the line of argument relating to the evaluation of that damage relate, respectively, to the third and second conditions.


31. The cumulative nature of those conditions means that, where one of them is not satisfied, the <mask> of the European Union cannot be incurred. (24) That is why, in the present case, the General Court, having found that the error made by the Commission in classifying CTPHT did not constitute a sufficiently serious breach of a rule of law, held that the non-contractual liability of the European Union had not been incurred and, accordingly, did not consider the other conditions of such liability.


According to settled case-law, Article 268 TFEU in conjunction with the second paragraph of Article 340 TFEU gives jurisdiction to the EU judicature only to award compensation for damage caused by the EU institutions or by their servants in the performance of their duties or, in other words, for damage capable of giving rise to <mask> on the part of the European Union. Damage caused by national authorities, on the other hand, can give rise to liability only on the part of those national authorities and the national courts retain sole jurisdiction to order compensation for such damage (judgment of 7 July 1987, L’Étoile commerciale and CNTA v Commission, 89/86 and 91/86, EU:C:1987:337, paragraph 17 and the case-law cited).


The General Court held in those paragraphs of the judgments under appeal that the inability to bring, on the basis of the second paragraph of Article 340 TFEU, an action against the Euro Group to establish <mask> of the European Union would clash with the principle of the Union’s being based on the rule of law, in the light of the requirements related to observing the principle of effective judicial protection.


80 By the third part of its first ground of appeal, Vialto submits, first, that in paragraph 77 of the judgment under appeal, the General Court erred in law by dismissing its arguments based on respect for professional secrecy and on the clauses of contracts concluded with its commercial partners as irrelevant for the purposes of finding the European Union to have <mask>. In its view, those arguments are relevant to establishing that OLAF infringed Article 7(1) of Regulation No 2185/96, as they demonstrate that the reservations expressed by Vialto with regard to the collection of data unrelated to the investigation were justified. Under the case-law of the Court of Justice, Vialto was required to prove that the making of such reservations did not constitute an abuse of rights.


In my opinion it results from the incorporation into the Staff Regulations of the liability of an institution for damages whenever that liability arises from the employment relationship. As a consequence of such incorporation, rights to damages which result from such <mask> are to be claimed using the procedure envisaged by the Treaty for staff cases – Article 270 TFEU. The right to bring actions in damages using that procedure, rather than the Article 268 TFEU procedure, has already been justified in this way when the actions were brought by officials themselves.


First, as the Advocate General has noted in point 23 of his Opinion, the Court has already applied in that area the conditions, recalled in paragraph 32 of the present judgment, relating to the arising of <mask> of the European Union (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402). Second, it follows from the case-law cited in paragraph 33 of the present judgment that the complexity of the situations to be regulated and the difficulties in applying or interpreting the rules of EU law in that area, which have been applied by the Council in the course of adopting the act at issue, are taken into account when assessing the Council’s conduct in order to determine whether it committed a sufficiently serious breach of a rule of EU law.


Indeed, as correctly recalled by the General Court in paragraph 34 of the judgment under appeal, the European Union’s <mask> under the second paragraph of Article 340 TFEU is subject to the satisfaction of a number of conditions, namely the unlawfulness of the conduct alleged against the EU institution, the establishment of actual damage and the existence of a causal link between the conduct of the institution and the damage complained of.


Relying on the clause conferring jurisdiction on the EU Courts contained in the employment contract between SC and Eulex Kosovo, SC brought an action before the General Court of the European Union on the basis of Article 272 TFEU, challenging the legality of decisions taken by that mission that SC did not pass an internal competition and her employment contract was not renewed, and seeking damages based on the EU’s contractual and <mask> under Article 340 TFEU.


See judgment in Brogsitter (paragraphs 25 and 26). The Court appears to have taken inspiration in that judgment from its case-law relating to civil actions for damages brought against the European Union. I recall that the FEU Treaty provides, in such matters, for an allocation of jurisdiction between the Courts of the European Union and the national courts: while disputes relating to the <mask> of the Union are within the exclusive jurisdiction of the Courts of the European Union (see Article 256(1), Article 268 and the second paragraph of Article 340 TFEU), those relating to its contractual liability fall, in the absence of any arbitration clause to the contrary, within the jurisdiction of the national courts (see Articles 272 and 274 TFEU). According to that case-law, in order to determine whether a civil action for damages brought against the Union comes within their jurisdiction, the Courts of the European Union cannot merely rely on the legal rules invoked by the applicant, but are required to ascertain whether the object of the action for damages before them is a claim for damages based objectively and wholly on rights and obligations of a contractual origin or on rights and obligations of a non-contractual origin. In order to do so, those Courts must ascertain, on the basis of an analysis of the various elements in the file, such as the legal rule which is alleged to have been breached, the nature of the damage relied on, the conduct complained of and the legal relations existing between the parties, whether there is a contractual context between the parties, linked to the object of the dispute, a thorough examination of which is indispensable for the purposes of resolving the action. In that context, the action will be considered to be based on the contractual liability of the Union if it is apparent on a preliminary analysis of those elements that it is necessary to interpret one or more contracts concluded between the parties in question in order to establish the merits of the applicant’s claims (see, in particular, judgments of 18 April 2013, Commission v Systran and Systran Luxembourg (C‑103/11 P, EU:C:2013:245, paragraphs 61 to 67), and of 10 July 2019, VG v Commission (C‑19/18 P, EU:C:2019:578, paragraphs 28 to 30)).


As the referring court states, after the commencement of the claim for <mask> against the Italian Republic, which is the subject of the main proceedings, that Member State established a compensation scheme for victims of violent intentional crime committed on Italian territory, irrespective of whether they reside in Italy or not. That scheme also covers, retroactively, criminal acts of that type committed from 1 July 2005 onwards and, therefore, the crimes of sexual violence of which BV was a victim.


30. It is clear from settled case-law of the Court that the European Union may incur <mask> only if three conditions are fulfilled, the first being the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals (‘the first condition’), the second the fact of damage, and the third the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties. (23)


In the event of an interpretation to the effect that, under the circumstances of the main proceedings, the requirement that the respective conduct of the authority be unlawful is not applicable to actions of depositors at a credit institution for compensation due to acts and omissions of the central bank of a Member State and, in particular, for the payment of interest for guaranteed deposits not having been paid out within the deadline and for the payment of deposits exceeding the guaranteed amount, which are brought to seek compensation for an infringement of Articles 63 to 65 and 120 TFEU, Article 3 TEU and Article 17 of the [Charter], are the requirements established by the Court of Justice of the European Union for <mask> applicable to losses:


In the present case, as established in the examination of the three grounds of appeal, the General Court erred in law in assessing the first and third conditions that must be fulfilled in order for the Union to incur <mask>, conditions that were the subject of inter partes argument before the General Court and examination of which does not require the adoption of any additional measure of organisation of procedure or of investigation of the case.


In that regulatory context, Regulation No 1272/2008 confers on the Commission the power to classify chemical substances. As illustrated by the present case, in exercising that power it may be necessary to come to conclusions on the toxicity of complex substances. The exercise of that power could be hindered, to the detriment of the objectives referred to above, if the adoption of a decision on the classification of complex substances could lead to the European Union incurring <mask> without consideration being given to scientific complexity and the resulting uncertainties, as well as the complexity of the applicable regulatory framework, as factors that could render a potential error excusable.


55. That is true, in particular, as regards the administration’s adoption of delegated or implementing acts of general scope, or of individual acts In that situation, the scope of the administration’s duty of diligence is determined by the provisions applied in the particular case, which determine the scope of the powers of the administration and its discretion. On the basis of those provisions, the administration identifies all of the relevant circumstances to be taken into account. It is impossible to analyse the administration’s duty of diligence without taking account of the concrete situation governed by those provisions. It is only in conjunction with them that the duty of diligence can constitute a rule of law conferring rights on individuals, breach of which may give rise to <mask> on the part of the European Union. (58) 3. The duty of diligence in the present case


Although the Court has never had occasion to date to state why a breach of the duty to state reasons is not in itself sufficient to give rise to <mask>, the answer is, I think, nonetheless clear. When an applicant seeks compensation for damage caused by the legal consequences produced by a decision, that damage cannot result exclusively from the absence of a statement of reasons. Rather, such damage is caused only by the absence of a well-founded basis for that decision.


48. However, I consider that the interpretation applied in the judgment of 27 September 1988, Asteris and Others v Greece and EEC (106/87 to 120/87, EU:C:1988:457), is not relevant so far as the case in the main proceedings is concerned, since that case does not concern sums payable or paid on the basis of the <mask> of the Member State concerned, but compensation for the costs – deriving from regulatory obligations or natural occurrences – normally borne by the undertakings concerned in the context of their economic activities. (31)


121 Consequently, without it being necessary, at the present stage of the proceedings, to examine the scope of the other conditions for <mask> to be incurred, namely those of actual damage and of a causal link between the alleged conduct and the loss claimed, which have not been examined by the General Court in the judgment under appeal, the form of order by which the appellant seeks to have the judgment under appeal set aside in so far as, by that judgment, the General Court rejected her claim for compensation must, like those criticising the General Court’s dismissal of her action for annulment, be granted, since the General Court based the refusal to grant that claim for compensation on the finding, made in breach of the audi alteram partem principle, that there had been no unlawful conduct.


The decisive test for a finding that the requirement of not leaving those parties to bear the consequences of flagrant and inexcusable misconduct by the institution concerned has been satisfied is whether the institution concerned has manifestly and gravely disregarded the limits of its discretion (see, to that effect, judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 43, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 30). The concept of ‘manifest and grave disregard’ is not the same as the concept of ‘manifest error of assessment’, but must be regarded as a distinct concept. If such a distinction were not made, any manifest error of assessment and, therefore, any error made by an administrative authority of the European Union in circumstances where it has some discretion could result in its incurring <mask>. However, as mentioned, it does not follow from the relevant case-law set out above that any unlawful act is, by itself, a basis for such liability. The determining factor in deciding whether there has been such an infringement is, therefore, the discretion available to the institution concerned. It is thus apparent from the criteria set out in the case-law that, if the institution in question has only considerably reduced or even no discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 35 and the case-law cited).


The Commission accepts the part of the judgment which concerns the mother, but disputes the assessments made by the General Court in response to the claims for compensation submitted by the brother and sister. The key issue raised by the appeal is whether the brother and the sister were entitled to bring the actions for non-material damages in their own name on the basis of Article 270 TFEU, which grants jurisdiction in staff cases to the Court,   or if the brother and sister should have used Article 268 TFEU, which governs the general jurisdiction of the Court for actions in damages based on the <mask> of the EU.


In the light of the foregoing considerations, the answer to the fourth question is that the Court of Justice has exclusive jurisdiction, to the exclusion of national courts, to hear and determine an action for <mask> brought by a former member of the temporary staff of the Commission on account of wrongful conduct which he attributes to the member of that institution, for whom he was an employee and which, it is claimed, led the institution to terminate the employment relationship with that member of staff. Such an action must be directed not against the member of the Commission concerned, but against the European Union, represented by the Commission.


However, it must be pointed out that, given what has been stated in paragraph 89 of the present judgment and the fact that the Euro Group does not have the power to punish a failure to comply with the political agreements concluded within it, those agreements are given concrete expression and are implemented by means, in particular, of acts and action of the EU institutions. Individuals may thus bring before the EU judicature an action to establish <mask> of the European Union against the Council, the Commission and the ECB in respect of the acts or conduct that those EU institutions adopt following such political agreements, as is shown here by the actions brought at first instance by the applicants at first instance in Cases C‑597/18 P and C‑598/18 P.


20 By the second part of the first ground of appeal, which concerns paragraph 76 of the judgment under appeal, the appellant submits that the General Court, first, erred in the assessment of the fourth head of claim, seeking a finding that FRA’s general rules applicable to the appraisal and reclassification of its members of staff and the renewal of contracts of employment were unlawful, secondly, failed to rule on her third head of claim, seeking to establish the <mask> of the European Union on account of the absence of a lawful regulatory framework, and, thirdly, and as a consequence, infringed the right to effective judicial protection.


EU law must be interpreted as meaning that the rules on the <mask> of a Member State for damage caused by the breach of that law applies, on the ground that that Member State did not transpose, within the appropriate time, Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, as regards victims residing in that Member State, on the territory of which the violent intentional crime was committed.


According to settled case-law, the <mask> of the European Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of.


As a preliminary point, it should be noted that, in paragraph 55 of the judgment under appeal, the General Court held that the plea in law and the arguments raised in the application seeking to establish the existence of a sufficiently serious breach of a rule of EU law intended to confer rights on individuals capable of giving rise to <mask> on the part of the European Union, were based solely on the illegality found by the General Court in the annulment judgment.


Indeed contributory negligence is a common feature of the tort and contract laws of the States Parties. See, for the Member States of the European Union, Von Bar, C. et al. (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR); prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group), Sellier, European Law Publishers, Munich, 2008, volume IV, book VI (‘Non contractual liability arising out of damage caused to another’), pp. 3636-3656. In addition, that concept is recognised in EU law. See, for instance, in the field of <mask> of the European Union, judgment of 19 May 1992, Mulder and Others v Council and Commission (C‑104/89 and C‑37/90, EU:C:1992:217, paragraph 33). See also Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ 2007 L 315, p. 14), Annex I, Title IV, Chapter 1, Article 26(2)(b).


The Commission submits that Articles 263 and 340 TFEU have the same scope ratione personae. It states that the General Court did not cite any judgment establishing that an entity whose acts cannot be the subject of an action for annulment may, on the other hand, have its acts or conduct challenged in an action to establish <mask> of the European Union.


1. Does the EU administration’s duty of diligence, understood as an obligation to take all relevant factors into consideration in the exercise of its powers, constitute a rule of law intended to confer rights on individuals, breach of which may give rise to <mask> on the part of the European Union? That is the question of principle which the Court will need to consider in examining the ground of appeal raised by the appellants in support of their appeals against four judgments of the General Court of the European Union. (2)


The applicants rely, in essence, on two illegalities as events giving rise to <mask> on the part of the European Union. The first concerns the breach of fundamental rights, in particular UPS’ rights of defence, resulting from the Commission’s failure to communicate the econometric model used in the decision at issue to analyse the effects of the concentration on prices. That illegality was found by the Court in the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144). The second alleged illegality lies in the errors of assessment of the concentration between UPS and TNT alleged by UPS in its action for damages in Case T‑834/17. Those errors concern the analysis of the effects of the concentration on prices, of the efficiencies and of FedEx’s situation.


In February 2009, BV brought a claim against the Presidency of the Council of Ministers before the Tribunale di Torino (District Court, Turin, Italy) in order to establish the <mask> of the Italian Republic for failing to have implemented, correctly and fully, the obligations flowing from Directive 2004/80, in particular that laid down in Article 12(2) of that directive.


The appellant contends, finally, that the General Court also should have taken account of the Council’s statements in the cases which gave rise to the judgment of 12 June 2013, HTTS v Council (T‑128/12 and T‑182/12, not published, EU:T:2013:312), from which it is clear that at the beginning of 2012 the Council did not have the information upon which it relies by way of defence in the action before the General Court in order to demonstrate that the first condition for <mask> of the European Union is not met.


In the light of the foregoing, the error committed by the Commission therefore appears to be excusable. Given the lack of clarity and the difficulties in interpreting the relevant provisions in Annex I to Regulation No 1272/2008 regarding the consideration that can be given to factors other than those expressly provided for when applying the summation method, the Commission’s conduct is close to that which could reasonably be expected from an administrative authority exercising ordinary care and diligence in an analogous situation, that is to say, a situation characterised by scientific complexity connected to the classification of a substance of unknown composition such as CTPHT with the purpose of ensuring a high level of protection of human health and the environment. That conduct is not equivalent to a manifest and grave disregard of the limits on the Commission’s discretion. Therefore, the error committed does not constitute a sufficiently serious breach of a rule of law, with the result that the European Union has not, in any event, incurred <mask> in the present case. That finding applies equally to the infringement of the summation method and, for the sake of completeness and on the grounds set out above, to the alleged breach of the duty of diligence.


The applicants at first instance submit, first, that Mallis is not relevant, since it concerned an action for annulment and not an action in <mask>. They contend that it is apparent from the case-law that the admissibility of an action in non-contractual liability is not subject to the condition that the body has the power to adopt binding acts. To deny the possibility of the European Union’s assuming liability for acts adopted by the Euro Group would amount to disregarding the fundamental right to effective judicial protection. Secondly, they dispute the argument that the Euro Group was not established by the Treaties. Its existence was in fact formalised by the Treaty of Lisbon, by means of Article 137 TFEU and Protocol No 14. Thirdly, the Euro Group is not merely an informal discussion forum; it has responsibilities relating to the development of the economic and budgetary policies of the European Union. Lastly, the applicants at first instance deny that individuals may have recourse to other legal remedies in order to obtain legal protection, principally for two reasons: the assumption of liability by the Commission in the exercise of its powers cannot substitute for the assumption of liability by the Euro Group, and the possibility of bringing legal proceedings before the national courts is not satisfactory for individuals, since only acts attributable to the national authorities, not those adopted by bodies established by the Treaties, may be challenged.


It follows from all of the foregoing considerations that in respect of its handling of the request for assistance only did the appointing authority infringe both Article 24 of the Staff Regulations and the reasonable time principle, and in those circumstances it is justified that <mask> should arise, on the part of the Parliament, in favour of the applicants.


In addition, after concluding that there was not a sufficiently serious breach of a rule of EU law, the General Court, in paragraph 92 of the judgment under appeal, did not go on to examine the other conditions which must each be met in order for the European Union to incur <mask> (see, to that effect, judgment of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 57).


Similarly, the Court has held, in a dispute concerning the <mask> of the European Union, that, in order to determine which court has jurisdiction to hear a specific action, brought against the Union, seeking compensation for damage, it must be assessed whether the action in question concerns the Union’s contractual liability or its non-contractual liability, and that the mere invocation of rules of law not flowing from a contract relevant in the case, but which are binding on the parties, cannot have the consequence of altering the contractual nature of the dispute and thus removing it from the jurisdiction of the competent court or tribunal. If it were otherwise, the nature of the dispute and, consequently, the court or tribunal with jurisdiction, could be changed at the whim of the rules invoked by the parties, which would go against the rules on the jurisdiction of the various courts ratione materiae (judgment of 18 April 2013, Commission v Systran and Systran Luxembourg, C‑103/11 P, EU:C:2013:245, paragraphs 61 and 65).


The applicants at first instance in Cases C‑597/18 P and C‑598/18 P contest the merits of the single ground of appeal put forward by the Council. They submit, first, that the Court’s statement in paragraph 61 of the judgment of 20 September 2016, Mallis and Others v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:702), that the Euro Group cannot be classified as a ‘body, office or agency of the European Union’ within the meaning of Article 263 TFEU, is not relevant as that judgment related to the admissibility of an action for annulment against the Euro Group, which is a remedy separate from that of an action, provided for in the second paragraph of Article 340 TFEU, to establish <mask> of the European Union.


99 Thirdly, the appellants emphasise that, contrary to the reasoning employed by the General Court in the order under appeal, the two claims in question did not seek to obtain the same result, namely the replacement of the acts at issue which make up the legislative package in question with new measures that will have to achieve a greater reduction in greenhouse gas emissions than is laid down currently. In their claim invoking the <mask> of the Union, the appellants requested measures targeting the legislative package regarding greenhouse gas emissions, whereas the basis underlying the liability of the Union is much broader. That liability is based on a continuous breach of higher-ranking rules of law which began in 1992.


The Hungarian Government also relies on the case-law concerning the primacy of the most specific legal basis. When Directive 96/71 was adopted, the general basis of the <mask> in relation to freedom to provide services was used because no other, more specific basis existed. By the time Directive 2018/957 was adopted, that more specific basis did exist (Article 153 TFEU) and that is the basis which the EU legislature ought to have used.


(Request for a preliminary ruling from the Landgericht Ravensburg (Regional Court, Ravensburg, Germany)) (Reference for a preliminary ruling – <mask> – Directive 2007/46/EC – Approval of motor vehicles – Article 18(1), Article 26(1) and Article 46 – Regulation (EC) No 715/2007 – Article 5(2) – Diesel engine – Pollutant emissions – Reduction of nitrogen oxide emissions limited by a ‘temperature window’ – Defeat device – Protection of the interests of an individual purchaser of a vehicle equipped with an unlawful defeat device – Right to compensation from vehicle manufacturer on the basis of tortious liability – Method of calculating compensation – Principle of effectiveness – Article 267 TFEU – Discretion of a single judge to make a reference to the Court for a preliminary ruling)


(Reference for a preliminary ruling – <mask> – Regulation (EC) No 765/2008 – Requirements for accreditation and market surveillance relating to the marketing of products – Single national accreditation body – Issuing of the accreditation certificate to conformity assessment bodies – Accreditation body having its seat in a third State – Article 56 TFEU – Article 102 TFEU – Articles 20 and 21 of the Charter of Fundamental Rights of the European Union – Validity)


(Reference for a preliminary ruling — <mask> — Telecommunications sector — Harmonised use of radio spectrum in the 2 GHz frequency bands for the implementation of systems providing mobile satellite services — Decision No 626/2008/EC — Article 4(1)(c), Article 7(1), and Article 8(1) — Complementary ground components — Authorisations issued by Member States — Requirement for operators to provide service coverage for a certain percentage of the population and the territory — Non-compliance — Effect)


The Hungarian Government submits that Articles 53(1) TFEU and 62 TFEU, which provide for the <mask> in relation to the freedom to provide services, are not an appropriate legal basis for the adoption of Directive 2018/957. Taking into account its purpose and its content, that directive applies only, or principally, to the protection of workers, meaning that the EU legislature ought, for the purpose of adopting the directive, have taken Article 153 TFEU as the legal basis or, at least, as the principal legal basis in relation to social policy.


(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria)) (Reference for a preliminary ruling – <mask> – Regulation (EC) No 715/2007 – Motor vehicles – Article 3(10) – Article 5(1) and (2) – Diesel engines – Pollutant emissions – Software installed in the electronic engine controller – Exhaust gas recirculation valve – Reduction in nitrogen oxide emissions limited by a ‘temperature window’ – Defeat device – Authorisation of such a device where the need is justified in terms of protecting the engine against damage or accident – Device installed during the repair of the vehicle – Directive 1999/44/EC – Sale of consumer goods and associated guarantees – Goods in conformity with the contract of sale – Article 2(2)(d) – Presumption of conformity of goods which show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect – Valid EC type-approval – Article 3(6) – Purchase of the vehicle concerned even though the consumer had been aware of the presence of the defeat device at the time of the sale – Minor lack of conformity)


(Reference for a preliminary ruling – <mask> – Telecommunications sector – Harmonised use of radio spectrum in the 2 GHz frequency bands for bringing into operation systems providing mobile satellite services – Decision No 626/2008/EC – Article 2(2)(a) and (b) – Article 4(1)(c)(ii) – Article 7(1) and (2) – Article 8(1) and (3) – Mobile satellite systems – Concept of ‘mobile earth station’ – Concept of ‘complementary ground components’ – Concept of ‘required quality’ – Respective role of satellite and ground components – Requirement for a selected operator of mobile satellite systems to provide service for a certain percentage of the population and territory – Non-compliance – Effect)


In accordance with [Council Directive 86/609/EEC of 24 November 1986 on the <mask>, regulations and administrative provisions of the Member States regarding the protection of animals used for experimental and other scientific purposes (OJ 1986 L 358, p. 1)], it is necessary to replace, reduce or refine testing on vertebrate animals. Implementation of this Regulation should be based on the use of alternative test methods, suitable for the assessment of health and environmental hazards of chemicals, wherever possible. The use of animals should be avoided by recourse to alternative methods validated by the Commission or international bodies, or recognised by the Commission or [ECHA] as appropriate to meet the information requirements under this Regulation.


The de facto and de jure situation resulting from th[e] national differences [between the laws of the various Member States in the field of consumer credit] in some cases leads to distortions of competition among creditors in the Community and creates obstacles to the internal market where Member States have adopted different mandatory provisions more stringent than those provided for in [Council] Directive 87/102/EEC [of 22 December 1986 for the <mask> and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48)]. It restricts consumers’ ability to make direct use of the gradually increasing availability of cross-border credit. Those distortions and restrictions may in turn have consequences in terms of the demand for goods and services.


Whereas attainment of the objectives at which this <mask> is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark are, in general, identical in all Member States; whereas, to this end, it is necessary to list examples of signs which may constitute a trade mark, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings; whereas the grounds for refusal or invalidity concerning the trade mark itself, for example, the absence of any distinctive character, or concerning conflicts between the trade mark and earlier rights, are to be listed in an exhaustive manner, even if some of these grounds are listed as an option for the Member States which will therefore be able to maintain or introduce those grounds in their legislation; whereas Member States will be able to maintain or introduce into their legislation grounds of refusal or invalidity linked to conditions for obtaining and continuing to hold a trade mark for which there is no provision of approximation, concerning, for example, the eligibility for the grant of a trade mark, the renewal of the trade mark or rules on fees, or related to the non-compliance with procedural rules;


(Reference for a preliminary ruling — <mask> of the Member States — Trade marks — Identification of the goods or services for which the protection of a trade mark is sought — Requirement of clarity and precision — Bad faith — Bad faith due to the lack of intent to use the trade mark for the goods or services specified — Interpretation of the judgment of 19 June 2012, Chartered Institute of Patent Attorneys (C‑307/10, EU:C:2012:361))


(Reference for a preliminary ruling — <mask> — Community trade mark — Regulation (EC) No 40/94 — Articles 7 and 51 — First Directive 89/104/EEC — Articles 3 and 13 — Identification of the goods or services covered by the registration — Failure to comply with the requirements of clarity and precision — Bad faith of the applicant — No intention to use the trade mark for the goods or services covered by the registration — Total or partial invalidity of the trade mark — National legislation requiring the applicant to state that he or she intends to use the trade mark applied for)


(Request for a preliminary reference – <mask> – Copyright and related rights – Directive 2001/29/EC – Article 2 – Reproduction right – Article 5(2)(b) – Private copying exception – Servers owned by third parties made available to natural persons for private use – Provision of a cloud computing service – Interpretation of terms ‘on any medium’ – Fair compensation)


Furthermore, the Republic of Austria contends that the General Court was wrong to hold that it did not need to take account of the extent to which the measures at issue were detrimental to key environmental principles, such as the precautionary principle, the ‘polluter pays’ principle and the sustainability principle.   Quite apart from the fact that the Republic of Austria did not go beyond the level of assertion as far as alleged environmental damage is concerned, one should also observe that Article 107 TFEU is located within Title VII, which prescribes common rules on competition, taxation and the <mask>. The task of the Commission, therefore, is, as Article 107(2) and (3) TFEU makes clear, simply to assess whether the State measure in question ‘may be considered to be compatible with the internal market’.


(Reference for a preliminary ruling — <mask> — Cosmetic products — Regulation (EC) No 1223/2009 — Article 19 — Consumer information — Labelling — Information that must appear on the container and packaging — Function of the cosmetic product — Protection of human health — Information that may appear on an enclosed or attached leaflet, label, tape, tag or card — Labelling in a foreign language — Cosmetic product packaging which contains a reference to a product catalogue drafted in the language of the consumer)


10 More precisely, the referring court wonders about the compatibility of that method with Article 114(3) TFEU, relating to the <mask> concerning health, and with the World Health Organisation Framework Convention on Tobacco Control (signed in Geneva on 21 May 2003, to which the European Union and its Member States are parties) and Articles 24 and 35 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which concern, respectively, the rights of the child and health care.


(Reference for a preliminary ruling – <mask> – Cosmetic products – Regulation (EC) No 1223/2009 – Article 19 – Consumer information – Labelling – Information that must appear on the product container and packaging – Labelling in a foreign language – ‘Function of the cosmetic product’ – Concept – Cosmetic product packaging which contains a reference to a detailed product catalogue drafted in the language of the consumer)


28 Secondly, that interpretation also follows from the position of those provisions within the Treaties. Article 114(2) TFEU forms part of Chapter 3, entitled ‘Approximation of laws’, which follows Chapter 2, entitled ‘Tax provisions’, within Title VII, concerning ‘common rules on competition, taxation and approximation of laws’ of the FEU Treaty. Consequently, anything relating to Chapter 3, namely the <mask>, does not, and cannot, relate to that which falls within Chapter 2, namely tax provisions.


(Reference for a preliminary ruling – <mask> – Trade marks – Directive 2008/95/EC – Article 12(1) – Genuine use of trade mark – Burden of proof – Article 13 – Proof of use ‘in respect of some of the goods or services’ – Trade mark covering a car model the production of which has stopped – Use of the trade mark in respect of replacement parts as well as for services relating to that model – Use of the trade mark for used vehicles – Article 351 TFEU – Convention between the Federal Republic of Germany and the Swiss Confederation – Reciprocal protection of patents, designs and trade marks)


The provision of legal services characteristically reflects peculiarities intrinsically linked to the diverse traditions of the Member States. Legal practice generally requires excellent knowledge of all the rules resulting from those traditions. Nevertheless, on account of its long and complex history, Europe is home to many traditions, attributable to the diversity of legal cultures, each of which has its own particular features.   Indeed, despite the various cultural exchanges that have taken place between the European nations   and the <mask> driven as part of the integration process, the legal and judicial systems of the Member States remain anchored in the tradition of each State, which is reflected not only in their institutions but also in their law and rules of ethics. As important as it may be to preserve that diversity of legal traditions, it is scarcely in doubt that doing so can create obstacles to the exercise of the legal profession. Lawyers are generally required to familiarise themselves with the rules in force in another Member State before they can provide their services in that state, which involves a certain amount of effort in order to adapt.


On 12 November 1997, the European Commission gave a mandate to the European Committee for Standardisation [(CEN)], under reference M/119, concerning the development of harmonised standards on floorings. Those standards were to include a series of essential characteristics, such as reaction to fire, water tightness, breaking strength, and emission of asbestos, formaldehyde and pentachlorophenol. Mandate M/119 was issued pursuant to [Council Directive 89/106/EEC of 21 December 1988 on the <mask>, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12)] and amended by mandate M/137 of 25 July 2000 and by mandate M/119 rev. 1 of 22 June 2010, so as to include the emission of a series of other dangerous substances such as volatile organic compounds (VOCs).


(Reference for a preliminary ruling – <mask> – Directive 2003/6/EC – Article 14(3) – Regulation (EU) No 596/2014 – Article 30(1)(b) – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self-incrimination)


(Reference for a preliminary ruling – <mask> – Directive 2009/103/EC – Motor vehicle civil liability insurance – Article 3(1) – Obligation to take out a civil liability insurance contract relating to the use of motor vehicles – Vehicle not capable of being driven due to its technical state – Division of tasks under Article 267 TFEU – Interpretation and application of EU law)


It follows from the legal basis, the purpose of the Framework Decision and the context in which it was adopted that it is an instrument (i) relating only to criminal matters; (ii) aiming to ensure compatibility of laws of Member States to the extent necessary for their cooperation, (iii) introducing for Member States the obligation to take the necessary measures to confiscate crime-related instrumentalities and proceeds; and (iv) approximating Member States’ laws in the matters covered, with a view to facilitating mutual recognition to confiscation orders. The concept is one of minimum <mask> (‘to the extent necessary for the cooperation’).


In the defence, Hungary submits that, even if the action is admissible, it must be dismissed at the outset on the ground that it does not satisfy the requirements applicable to the taking of evidence. It argues that it is for the Commission to prove the existence of the infringements in respect of which that institution is seeking a declaration, and that the Commission may not rely on any presumption for that purpose. In the present case, that institution has not produced any evidence that the Transparency Law has had effects in practice on the <mask> enshrined in Article 63 TFEU.


However, it is apparent from settled case-law of the Court that that provision, in so far as it is a derogation from the fundamental principle of the <mask>, is to be interpreted strictly. Accordingly, it cannot be interpreted as meaning that all tax legislation which draws a distinction between taxpayers on the basis of their place of residence or the State in which they invest their capital is automatically compatible with the FEU Treaty. Indeed, the derogation in Article 65(1)(a) TFEU is itself limited by Article 65(3) TFEU, which provides that the national provisions referred to in paragraph 1 of that article ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63 [TFEU]’.


By limiting the extent of the economic activity that may be exercised by Italian banks taking a particular legal form, such legislation is liable to dissuade investors from Member States other than the Italian Republic and from third countries from acquiring shares in the capital of those banks and, as a result, constitute a restriction on the <mask>, which is prohibited, in principle, by Article 63 TFEU.


In this respect, the <mask> – unlike the other fundamental freedoms – contains a limitation of its scope of protection in the case of tax law restrictions. This is because, under Article 65(1)(a) TFEU, Article 63 TFEU is to be without prejudice to the right of the Member States to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested. This is also understandable, in the light of their wider scope of application. Unlike the other fundamental freedoms, the free movement of capital also covers third-country situations.


The reason why a large number of judgments have nonetheless assessed the comparability of the situations at the justification stage rather than at the stage where the existence of a restriction is assessed   seems to be related to the approach adopted in certain judgments, that is to say, one which presents Article 65(1)(a) TFEU as establishing a derogation from the fundamental principle of the <mask>, and which therefore, must be interpreted strictly.


In my opinion, the answer to this question could only be in the negative. Indeed, in a free market economy, it must be assumed that individuals act rationally.   Accordingly, Member States cannot be held accountable for the fact that a taxable person did not opt for the regime that would have minimised his or her tax burden.   Besides, the fact that non-residents had to choose, according to their situation, which regime was best for them, rather than having a specific regime imposed on them, cannot in itself constitute a form of restriction on the <mask>. In order for the existence of a restriction to be established, there must be discrimination. Accordingly, as I have previously mentioned, what is important is that non-residents have the option, if they wish, of electing to be taxed for capital gains tax purposes on exactly the same basis as that which applies to residents.


87 In that regard, even if Article 16(2), point (3) of the ZKPO, which concerns the interpretation of national law, establishes an irrebuttable presumption of tax avoidance, without allowing the interested parties, particularly in the context of a legal challenge, to produce information relating to possible commercial reasons justifying the conclusion of interest-free loans, it must be stated that that rule applies in the same way to all interest-free loans, whether or not they involve non-resident companies. Therefore, as regards that rule, that provision does not entail any restriction on the <mask> falling within Article 63 TFEU.


In that regard, it should be noted that the intention to ensure the dispersion of the shareholder structure of certain financial investment companies constitutes an economic ground which, moreover, concerns only persons holding shares in such companies. In accordance with the settled case-law of the Court, economic grounds cannot constitute an overriding reason in the public interest capable of justifying a restriction on the <mask> (see, to that effect, judgment of 8 July 2010, Commission v Portugal, C‑171/08, EU:C:2010:412, paragraph 71 and the case-law cited).


(Reference for a preliminary ruling — Admissibility — Article 63 et seq. TFEU — <mask> — Article 107 et seq. TFEU — State aid — Articles 16 and 17 of the Charter of Fundamental Rights of the European Union — Freedom to conduct a business — Right to property — Regulation (EU) No 575/2013 — Prudential requirements applicable to credit institutions and investment firms — Article 29 — Regulation (EU) No 1024/2013 — Article 6(4) — Prudential supervision of credit institutions — Conferral of specific tasks on the European Central Bank (ECB) — Delegated Regulation (EU) No 241/2014 — Regulatory technical standards for Own Funds requirements for institutions — National regulation imposing an asset threshold on people’s banks established as cooperative societies and allowing the right to redeem shares by the withdrawing shareholder to be limited)


In the latter case, it is necessary to examine the possible justification for that restriction. In accordance with settled case-law of the Court,   for national tax legislation which distinguishes between domestic and foreign persons to be capable of being regarded as compatible with the provisions of the Treaty on the <mask>, the difference in treatment must concern situations which are not objectively comparable (see Section 2) or be justified by an overriding reason in the public interest (see Section 3). In that context, the assessment of the free movement of capital is to be based on the other fundamental freedoms, whereby the particularities of the free movement of capital must be taken into account (see Section 1).


Now that the Charter has entered into force, it is necessary to determine when the examination of a hypothetical infringement of the <mask> must be carried out in line with that traditional technique (assessment of necessity, appropriateness and proportionality) and when it must be carried out in the light of the fundamental freedoms, that is, using more stringent review criteria.


Do Articles 3 and 63 et seq. TFEU, on competition in the internal market and <mask>, preclude a national provision such as that introduced by Article 1 of Decree-Law No 3/2015 … which limits the exercise of cooperative banking activities within a given asset limit, requiring the bank concerned to be converted into a company limited by shares if it should exceed that limit?


While Member States have the ability to investigate when undertakings have a dominant position (and to impose specific obligations on those undertakings as a result), is Article 43(11) of Legislative Decree No 177 of 31 July 2005, in the version in force on the date of adoption of the contested decision, according to which “undertakings, including through subsidiaries or affiliates, whose revenues in the electronic communications sector, as defined by Article 18 of Legislative Decree No 259 of 1 August 2003, exceed 40 per cent of the total revenues in that sector, may not earn, within the Integrated Communications System, revenues exceeding 10 per cent of that system”, incompatible with EU law and, in particular, with the principle of <mask> laid down in Article 63 TFEU? This question is asked in so far as that provision, by reference to Article 18 of the Codice delle comunicazioni elettroniche (Electronic Communications Code), restricts the sector in question to the markets that are susceptible to ex ante regulation, regardless of what commonly happens, which is that information (the pluralism of which the rule is designed to protect) is increasingly conveyed by the use of the internet, personal computers and mobile telephony, which is sufficient to make it unreasonable to exclude from that sector, in particular, mobile telephone retail services, simply because they operate entirely competitively. This question is also asked in the light of the fact that, for the purposes of applying the aforementioned Article 43(11) specifically in the course of the present proceedings, AGCom has defined the limits of the electronic communications sector by taking into consideration only the markets where at least one analysis has been carried out since the entry into force of the Electronic Communications Code, that is, from 2003 to date, and with revenues resulting from the last useful assessment, carried out in 2015?


88 By contrast, the Court has already held that national legislation under which a non-resident company is taxed, by means of tax withheld at source by a resident company, on the interest which it is paid by the latter without it being possible to deduct expenses, such as interest expenditure, that are directly related to the lending at issue, whereas such a possibility of deduction is accorded to resident companies receiving interest from another resident company, constitutes a restriction on the <mask> (judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 175 and the case-law cited).


By these references for a preliminary ruling, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) is asking the Court to rule on the compatibility with EU law and, in particular, with reference to the provisions of the Treaties on the <mask> and freedom of establishment, of Italian legislation which limits to what I shall term ‘closed-ended’ real estate investment funds the availability of a reduction by half of the mortgage registration tax and the land registry fee payable upon acquisitions of commercial real estate on behalf of real estate investment funds. The case raises once again issues of restriction on the free movement of capital in the field of taxation.


23 In those circumstances the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following question, which is worded identically in Cases C‑478/19 and C‑479/19, to the Court of Justice for a preliminary ruling: ‘Does EU – law in particular the provisions [of the Treaties] concerning freedom of establishment and <mask>, as interpreted by the Court ‐ preclude the application of a provision of national law, such as Article 35(10-ter) of [Decree-Law No 223/2006] (in so far as it grants relief on mortgage registration tax and the land registry fee only in respect of closed-ended real estate investment funds)?’


In the judgment in Welte, the Court held that the national legislation at issue constituted a restriction on the <mask>   on the ground that, by making the application of a tax-free allowance in respect of the immovable property concerned dependent on the place of residence of the deceased and the heir at the time of the death, it led to succession between non-residents including such property being subject to a higher tax burden than that involving at least one resident, and therefore had the effect of reducing the value of the succession at issue.


Those various measures, which were introduced together and which pursue a common objective, put in place a set of obligations which, having regard to their content and their combined effects, are such as to restrict the <mask> which may be relied upon both by civil society organisations established in Hungary, as the beneficiaries of capital movements taking the form of financial support sent to them from other Member States or third countries, and by the natural and legal persons who grant them such financial support and who are therefore behind those capital movements.