There are a number of additional considerations that ought to be taken into account when adopting a position on the proportionality requirement enshrined in Article 20 of Directive 2014/67. Indeed, from a broader, systemic point of view, it is a truism to suggest that the embodiment of the proportionality requirement within that specific provision is far from a lonely, isolated provision, both in its vertical dimension (its relation to the Charter of <mask> of the European Union (‘the Charter’), the Treaties, and general principles of law) as well in the horizontal one (with a myriad of almost identically worded provisions spread over a number of other secondary law instruments). As the present case and the issues raised therein clearly demonstrate, the choice exercised in Link Logistik has repercussions and is causing ripple effects across the water level of EU law.


The French Government argues that both the effet utile of Directive 2009/73 and the principle of effectiveness point to a negative answer to the question reformulated in this way. This is subject, however, to respect for the principles of legal certainty, proportionality and respect for <mask> under the EU Charter of Fundamental Rights, which is for the referring court to decide.


According to recital 35 of Directive 2013/33, the <mask> constitute the reference framework for the standards for the reception of applicants. The provisions set out in Chapter II of that directive are thus intended to guarantee the effective protection of the applicant in the host Member State by supporting his or her needs continuously and in a way which respects his or her fundamental rights, in particular his or her dignity, and ensures equal treatment.


This request for a preliminary ruling concerns the interpretation of Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), Article 8(5) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (OJ 2011 L 88, p. 45), Article 56 TFEU and Article 21(1) of the Charter of <mask> of the European Union (‘the Charter’).


30 Judgment in SM (Child placed under Algerian kafala) (paragraph 64). Accordingly, the hand of the national authorities responsible for deciding on an application for entry or residence submitted by an ‘other family member’ for the purposes of Article 3(2)(a) of Directive 2004/38 will be guided with a little more direction from the Court, which expects, in particular in cases where Article 24 of the Charter of <mask> is relevant, that those authorities make ‘a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned’ (judgment in SM (Child placed under Algerian kafala) (paragraph 68)). The Court would proceed to clarify the criteria to be assessed and the risk assessment to be made. The Member States’ discretion was narrowed significantly when the Court concluded that if, on completion of such an analysis, it appears that the family members in question, including therefore a child, are called to lead a genuine family life and that the child is dependent on its guardians, who are citizens of the EU, then ‘the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence as one of the other family members of the citizens of the Union for the purposes of Article 3(2)(a) of Directive 2004/38’ (judgment in SM (Child placed under Algerian kafala) (paragraph 71), emphasis added).


1 By her appeal, BP asks the Court of Justice to set aside the judgment of the General Court of the European Union of 11 July 2019, BP v FRA (T‑888/16, not published, EU:T:2019:493; ‘the judgment under appeal’), whereby the General Court dismissed her action seeking (i) annulment of the decision of the European Union Agency for <mask> (FRA) of 4 April 2016 not to renew her contract as a member of the contract staff (‘the contested decision’), adopted as a result of the implementation of the judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356), and (ii) compensation for the harm which she had allegedly suffered. Background to the dispute


One of those requirements is the principle of equal treatment, enshrined in Article 20 of the Charter of <mask> of the European Union (see, to that effect, judgments of 22 December 2008, Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraph 78, and of 4 March 2010, Angé Serrano and Others v Parliament, C‑496/08 P, EU:C:2010:116, paragraph 100).


The Court addresses the issue relating to access of the competent national authorities to the retained data ‘regardless of the extent of the obligation to retain data that is imposed on providers of electronic communications services’ and, in particular, irrespective of whether retention of data is generalised or targeted.   That statement relates to the fact that the Court considers the retention of data and access to those data to be two separate interferences with the <mask> protected by the Charter.


Indeed, the Charter itself is often referred to as a source of <mask>,   which is unsurprising, given the status afforded to it under Article 6(1) TEU. However even though the Charter is primary EU law, recourse to it as a (direct) source of fundamental rights reaches its limits when Article 51(2) of the Charter and 6(1) TEU, second subparagraph come into play, as is the case in these proceedings, because Poland is not implementing EU law under Article 51 (1) of the Charter. Expansion of the Commission’s competence would result, in breach of the second paragraph of Article 6(1) TEU, and Article 51(2) of the Charter, if it were to place direct reliance on Article 47 of the Charter.


As regards, in the second place, the context of those provisions, it should be noted, first, that the issuing or validation of a European investigation order is subject, under Directive 2014/41, to a procedure and to guarantees distinct from those governing the issuing of a European arrest warrant. That directive lays down specific provisions intended to ensure that the issuing or validation of a European investigation order by a public prosecutor such as that in Article 2(c) of that directive is accompanied by guarantees specific to the adoption of judicial decisions, specifically those relating to respect for the <mask> of the person concerned and, in particular, the right to effective judicial protection.


As for the referring court’s argument that depriving persons arrested under a European arrest warrant of the rights set out in the aforementioned provisions of Directive 2012/13 would amount to disregarding the obligation to observe <mask>, as provided for in recital 12 and Article 1(3) of Framework Decision 2002/584, and more particularly the requirements resulting from Articles 6 and 47 of the Charter, it should be noted that such an argument, in reality, raises the question of the compatibility of Framework Decision 2002/584 with the fundamental rights protected in the legal order of the European Union, which is the subject of the second question.


ET submits that the application made by the public prosecutor is inadmissible and, in the alternative, unfounded. In that regard, ET argues that a term of imprisonment is not only a ‘measure’ for the purposes of Netherlands criminal law, but also a punitive penalty within the meaning of Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and within the meaning of Article 49(1) of the Charter of <mask> of the European Union. Furthermore, ET argues that applying a term of imprisonment constitutes an aggravation of the confiscation order, of which enforcement is sought, rendering it unlawful.


(Appeal – Electronic communications networks and services – Directive 2002/21/EC, as amended by Directive 2009/140/EC – Consolidating the internal market for electronic communications – Article 7(3) and (7) – Draft measure made accessible by the national regulatory authority – Wholesale fixed access market in the Netherlands – Joint significant market power – Comments of the European Commission communicated to the national regulatory authority – Obligation for the national regulatory authority to take the utmost account of them – Scope – Article 263 TFEU – Action for annulment – Admissibility – Challengeable act – Article 47 of the Charter of <mask> of the European Union)


That approach, grounded in the elevation of the protection of personal data under Article 8 of the Charter of <mask> of the European Union to an all-overriding fundamental (super-)right, nonetheless leads to distinct centripetal effects which the protection of personal data has started to exercise on other areas of law and disputes arising therein. A number of cases have started suddenly being portrayed as matters of personal-data protection and brought before (not only) this Court as a matter of interpretation of the GDPR. However, the specific issues raised in those disputes are, at times, not those expected to be governed by a piece of legislation such as the GDPR, despite its rather broad scope.


60 In that regard, as is apparent from the Explanations relating to the Charter of <mask> (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and the same scope as those guaranteed in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.


Article 1(3), Article 5 and Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in conjunction with Article 4 of the Charter of <mask> of the European Union, must be interpreted as meaning that:


If the jurisdiction of the courts of the Member State of origin were to be retained unconditionally and indefinitely, notwithstanding the fact that the abduction to the third State has, in the meantime, met, inter alia, acquiescence on the part of any person, institution or other body holding rights of custody, and without there being any condition allowing for account to be taken of the specific circumstances characterising the situation of the child concerned, or for the best interests of that child to be protected, that retention of jurisdiction would prevent the court regarded as best placed to assess the measures to be adopted in the best interests of the child from being able to hear applications in relation to such measures. Such an outcome would be contrary to the objective pursued by Regulation No 2201/2003, which must be read, as is clear from recital 33 of that regulation, in the light of Article 24 of the Charter of <mask> of the European Union.


Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 24 of the Charter of <mask> of the European Union, must be interpreted as meaning that Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.


53. In that connection, it must be borne in mind that – as the Court has consistently held – the effective enforcement of competition policy is an objective of general interest recognised by the European Union. Indeed, the Treaty provisions on competition law constitute fundamental provisions which are essential for the accomplishment of the tasks entrusted to the European Union and, in particular, for the functioning of the internal market. (27) Therefore, the enforcement of competition rules must respect the <mask> of the undertakings involved, but fundamental rights must also be interpreted and applied in such a manner as not to obstruct an effective enforcement of competition rules. (28)


Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8, 11 and Article 52(1) of the Charter of <mask>, must be interpreted as meaning that the requirement that the access of the competent national authorities to retained data be subject to prior review by a court or an independent administrative authority is not met where national legislation provides that such review is to be carried out by the public prosecutor’s office which is responsible for directing the pre-trial procedure, whilst also being likely to represent the public prosecution in judicial proceedings.


To take an observation formulated in the context of situations coming under EU law: the protection of private life and of personality rights need not necessarily be ensured in absolute terms but must be weighed against the protection of other <mask>.   It is thus necessary to avoid excessive measures that would disregard the need to strike a fair balance between the different fundamental rights.


In the first place, according to the referring court, the compensation to which the applicant in the main proceedings is entitled does not constitute adequate compensation for unlawful collective redundancy for the purposes of Article 30 of the Charter. Indeed, it would appear from the Explanations relating to the Charter of <mask> (OJ 2007 C 303, p. 17) that Article 30 of the Charter should be interpreted in the light of Article 24 of the European Social Charter, signed in Turin on 18 October 1961. This in turn has, it is stated, been interpreted by the European Committee of Social Rights to the effect that a penalty arising from unlawful collective redundancy is considered adequate where it provides for (i) the reimbursement of the financial losses suffered by the worker concerned between the date of his or her dismissal and the decision ordering the employer to reimburse him or her, (ii) the possibility of reinstating that worker in the company and (iii) compensation in an amount high enough to deter the employer and to compensate for the damage suffered by the worker concerned.


The requirement for teachers of the Catholic faith to obtain the approval of a diocesan ordinary as a prerequisite to teaching in public schools does not constitute an objective reason within the meaning of Clause 5(1)(a) of the Framework Agreement annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, justifying renewal of fixed-term contracts. In the circumstances of the main proceedings, and because Clause 5 of the Framework Agreement lacks the preconditions of direct effect, the referring court is required to disapply an absolute legislative prohibition under Member State law which precludes conversion of fixed-term contracts to contracts of indeterminate duration, only if non-conversion results in discrimination on the basis of religion or belief inconsistently with Article 21 of the Charter of <mask> of the European Union, and the unavailability of an effective remedy to correct this wrong, inconsistently with the first paragraph of Article 47 of the Charter, which is for the referring court to determine. In this event, all rules of Member State law that cannot be interpreted in conformity with the prohibition on discrimination on the basis of religion or belief protected by Article 21 of the Charter, and the remedy for its breach guaranteed by the first paragraph of Article 47 of the Charter, are to be disapplied, including rules of a constitutional nature.


46 In addition, the Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, reaffirmed in Article 7(1) of that directive and also guaranteed in Article 47 of the Charter of <mask> of the European Union, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (see, to that effect, judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C 782/19, EU:C:2021:470, paragraph 29 and the case-law cited).


In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of <mask> of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.’


(Preliminary-ruling proceedings — Judicial cooperation in criminal matters — European investigation order — Public prosecutor acting as issuing authority — Independence of public prosecutor’s office from the executive — Directive 2014/41/EU — Judicial authority authorised to issue a European investigation order — Autonomous concept — Differences between the rules laid down in Directive 2014/41/EU and those laid down in Framework Decision 2002/584/JHA — Protection of <mask> — Need for the involvement of a court)


(Reference for a preliminary ruling – Maritime transport – Rights of passengers when travelling by sea and inland waterway – Regulation (EU) No 1177/2010 – Articles 18 and 19, Article 20(4), and Articles 24 and 25 – Cancellation of passenger services – Late delivery of a vessel to the carrier – Notice given prior to the originally scheduled date of departure – Consequences – Right to re-routing – Procedures – Payment of the additional costs – Right to compensation – Calculation – Concept of ticket price – National body responsible for the enforcement of Regulation No 1177/2010 – Competence – Concept of a complaint – Assessment of validity – Articles 16, 17, 20 and 47 of the Charter of <mask> of the European Union – Principles of proportionality, legal certainty and equal treatment)


In that regard, as is recalled in paragraphs 220 and 251 of the present judgment, it follows from the case-law of the Court in relation to Article 325(1) TFEU that the obligation to ensure the effective and comprehensive collection of the European Union’s own resources, namely customs duties, requires the necessary observance of the <mask> guaranteed by the Charter and of general principles of EU law.


31 The Council is of the view that the first part of the first ground of appeal is unfounded. It points out that, in accordance with the settled case-law of the Court of Justice, it is not for the General Court to verify whether or not the investigations or procedures concerning the appellants in Egypt were well founded, but only to verify whether that was the case as regards the decisions to adopt restrictive measures in the light of the evidence on which those decisions were based (see, to that effect, judgments of 19 October 2017, Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69, and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 72). Moreover, in a situation where, as in the present case, a person covered by a restrictive measure has not put forward any evidence capable of demonstrating that his particular situation was affected by the alleged problems in the judicial system of the third State concerned, the Council is not bound to require additional verification on the part of the third State concerned as to the facts alleged against that person (see, to that effect, judgment of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 64). Lastly, where such a person relies on general information relating to the human rights situation in a third State, in order to demonstrate that the General Court erred in law in finding that the Council had discharged its burden of proof as regards the conformity of the relevant decision of the third State concerned with that person’s <mask>, it is for that person to provide concrete evidence of the effect of that general situation on his particular situation (see, to that effect, judgment of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 75. Findings of the Court


In order to satisfy the requirements of Article 47 of the Charter of <mask> of the European Union when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 180 and the case-law cited).


The first part of Question 3 is to be answered as follows: the EU principle of judicial independence, enshrined in the second paragraph of Article 47 of the Charter of <mask> of the European Union and in the second subparagraph of Article 19(1) TEU, does not preclude decisions of a national constitutional court declaring the carrying out of technical surveillance measures in the framework of criminal proceedings by domestic intelligence services to be unconstitutional and requiring the exclusion of any evidence thus obtained from criminal proceedings.


17 In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Does the second paragraph of Article 25 of [Royal Decree No 2316 of 24 December 1934], as replaced by Article 24(3) of [Legislative Decree No 6/2016] – inasmuch as it provides that “anyone who sells or supplies tobacco products or electronic cigarettes or refill containers containing nicotine or novel tobacco products to minors under the age of 18 shall be liable to a financial administrative penalty of EUR 500 to EUR 3 000 and a 15-day trading licence suspension” – infringe the EU principle of proportionality and the precautionary principle, as set out in Article 5 TEU, in Article 23(3) of Directive 2014/40, and in recitals 21 and 60 of that directive, by giving precedence to the precautionary principle without mitigating it with the principle of proportionality, and thus disproportionately sacrificing the interests of economic operators to the protection of the right to health, thereby failing to ensure that a proper balance is struck between the different <mask> and, what is more, doing so by means of a penalty that, contrary to recital 8 of [that directive], does not effectively pursue the objective of discouraging smoking prevalence among young people?’ Consideration of the question referred


The Court found a basis for this exceptional derogation from the rules of Framework Decision 2002/584 in Article 1(3) of the Framework Decision, which states that it ‘shall not have the effect of modifying the obligation to respect <mask> and fundamental legal principles as enshrined in Article 6 [EU]’. The Court also recognised in its jurisprudence that the principles of mutual recognition and mutual trust can be limited in exceptional circumstances.


In that context, where a European arrest warrant is issued with a view to the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution, that person must have already had the benefit, at the first stage of the proceedings, of procedural safeguards and <mask>, the protection of which it is the task of the judicial authorities of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant (judgment of 1 June 2016, Bob-Dogi, C‑241/15, EU:C:2016:385, paragraph 55).


To this I would add that general principles remain a source of <mask>,   notwithstanding the advent of the Charter. Indeed, Article 6(3) TEU states that fundamental rights ‘constitute general principles of the Union’s law.’ As one commentary has observed, ‘co-existence of the various fundamental rights’ sources’ secures the aim ‘of providing a high level of protection of individuals’ rights’.   Therefore, the content of the guarantee of the rule of law under Articles 2 and 19(1) TEU, second subparagraph, and respect for the irremovability and independence of judges inherent therein, is determined, pursuant to Article 6(3) TEU, by the ECHR,   and constitutional traditions common to the Member States.


It seems, therefore, that in accordance with the case-law of both this Court and the ECtHR, consideration of the law of the issuing Member State at the time of the issuing of the EAW, for the purposes of assessing the condition relating to the length of the penalty in Article 2(2) of the Framework Decision, would not infringe the principle of legality enshrined in Article 49 of the Charter of <mask> of the European Union, interpreted in conformity with the scope of Article 7 ECHR. This is because such an interpretation would not lead to the imposition in the criminal case of a penalty which was not provided for by the issuing Member State at the time when the offences were committed.


It might again be recalled that, according to settled case-law, where EU law allows Member States a measure of discretion, national authorities and courts remain free to protect <mask> under the national constitution, provided that the level of protection guaranteed by the Charter, as well as the primacy, unity and effectiveness of EU law are not thereby compromised.   Moreover, it has been stated above in this Opinion that a given national constitutional standard could indeed require specialisation of judges, whether it be as an independent national standard, or embedded as a national rule on what will eventually amount to a tribunal previously established by law (or to a fair trial, lawful judge, or under whichever other heading national constitutional rules might place such a rule).


Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and in the light of Article 24(2) of the Charter of <mask> of the European Union, must be interpreted as meaning that a Member State may not distinguish between unaccompanied minors solely on the basis of the criterion of their age for the purpose of ascertaining whether there are adequate reception facilities in the State of return.


In the fourth place, the German Government maintains that an interpretation of the Directives in the light of their legal bases and of <mask> and freedoms supports its position. It emphasises, first, that the Directives were adopted on the basis of Articles 47(2), 55 and 95 of the EC Treaty,   the aim of which is to make it easier to exercise the freedom of establishment and the freedom to provide services and the object of which is the establishment and functioning of the internal market. Consequently, those provisions of the Treaty cannot constitute the legal basis for the adoption of provisions which apply to the economic activities of undertakings operating in a third country. Secondly, the Directives impose obligations on vertically integrated undertakings that restrict the free movement of capital, within the meaning of Article 63 TFEU, as well as the freedom of undertakings and those who work for them to conduct a business, enshrined in Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as the right to property enshrined in Article 17(1) of the Charter. To the extent that the activities of third-country undertakings carried on outside the European Union produce no effects on the internal market, such restrictions of fundamental rights and freedoms are not necessary to attain the objective of ensuring the efficient, non-discriminatory operation of transmission systems within the European Union.


To accept that it is possible for Member States to exclude any reduction of the VAT taxable amount would also run counter to the principle of the neutrality of VAT. This would mean, inter alia, that the trader, as tax collector on behalf of the State, is entirely to be relieved of the burden of tax due or paid in the course of his economic activities, themselves subject to VAT.   In addition, as I have already stated in my opinion in the Di Maura case,   the <mask> of the taxable supplier must be considered. They may be interfered with only in a proportionate manner (second sentence of Article 52(1) of the Charter of Fundamental Rights of the European Union).


In support of its action, Landesbank Baden-Württemberg relied on six pleas in law. Those pleas alleged: first, infringement of Article 296 TFEU and of Article 41 of the Charter of <mask> of the European Union (‘the Charter’) due to the fact that the decision at issue failed to state adequate reasons; second, infringement of Article 41 of the Charter due to the absence of an opportunity for Landesbank Baden-Württemberg to be heard; third, infringement of Article 47 of the Charter due to the fact that that decision was not subject to review; fourth, infringement of several provisions of secondary legislation and of Articles 16 and 20 of the Charter, due to the application of the multiplier for the ‘institutional protection scheme’ indicator; fifth, infringement of Article 16 of the Charter and of the principle of proportionality, as a consequence of the application of the risk adjusting multiplier; sixth, illegality of Articles 4 to 7 and 9 of Delegated Regulation 2015/63 and of Annex I to that delegated regulation.


It should be recalled that, according to the case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of <mask> of the European Union requires, in particular, that the Courts of the European Union are to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).


Second, the Commission contends that Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of <mask> of the European Union, by lowering, in Article 13(1) of the Amending Law of July 2017, the retirement age of judges of the ordinary courts, while at the same time vesting the Minister for Justice with a discretion to prolong the period of active service of individual ordinary court judges under Article 1(26)(b) and (c) of the same law.


This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States,   as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,   and of Article 47 of the Charter of <mask> of the European Union (‘the Charter’).


In that context, where a European arrest warrant is issued with a view to the arrest and surrender by another Member State of a requested person for the purpose of conducting a criminal prosecution, that person must have already had the benefit, at the first stage of the proceedings, of procedural safeguards and <mask>, the protection of which it is the task of the judicial authorities of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant (see, to that effect, judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 66, and of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna), C‑489/19 PPU, EU:C:2019:849, paragraph 33).


This request for a preliminary ruling concerns the interpretation of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39, and corrigendum OJ 2014 L 138, p. 114) and of Articles 17 and 48 of the Charter of <mask> of the European Union (‘the Charter’).


56 It is precisely openness in that regard which, by allowing divergences between various points of view to be openly debated, contributes to reducing doubts in the minds of citizens, not only as regards the lawfulness of an isolated legislative measure but also as regards the legitimacy of the legislative process as a whole (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 59), and contributes to strengthening the principles of democracy and respect for <mask> as laid down in Article 6 TEU and in the Charter, as stated in recital 2 of Regulation No 1049/2001.


The principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the <mask> recognised by EU law (judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 35 and the case-law cited).


41. In each of the solutions which has been reviewed, the balance is tipped entirely in favour of one of the rights concerned, whereas it is necessary to find a balance which results in the least possible sacrifice of the <mask> involved. In the statements made below, I will explain how, in my view, this balance should be identified. (f) The proposed solution and ‘procedural data due process’


(Reference for a preliminary ruling — Protection of individuals with regard to the processing of personal data — Charter of <mask> of the European Union — Articles 7 and 8 — Directive 95/46/EC — Article 6(1)(c) and Article 7(f) — Making the processing of personal data legitimate — National legislation allowing video surveillance for the purposes of ensuring the safety and protection of individuals, property and valuables and for the pursuit of legitimate interests, without the data subject’s consent — Installation of a video surveillance system in the common parts of a residential building)


On the other hand, if, having regard to the information available, the competent authority of the Member State of execution determines that the certificate provided for in Article 4 of the Framework Decision suggests that <mask> or fundamental legal principles may have been infringed, that authority may oppose the recognition and execution of the decision transmitted. Before doing so, that authority is required to request all the necessary information from the authority of the issuing Member State, in accordance with Article 7(3) of the Framework Decision.


Furthermore, it must be noted that every detention ordered which is within the scope of Directive 2008/115 is strictly circumscribed by the provisions of Chapter IV thereof so as to ensure, on the one hand, compliance with the principle of proportionality with regard to the means used and objectives pursued and, on the other, observance of the <mask> of the third-country nationals concerned (judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 55). According to recital 6 of Directive 2008/115, decisions taken under that directive should be adopted on a case-by-case basis and based on objective criteria (judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 70).


Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and Article 51(1) of the Charter of <mask> must be interpreted as meaning that neither that directive nor that provision of the Charter of Fundamental Rights applies to judicial proceedings for the committal to a psychiatric hospital for therapeutic purposes, such as those provided for in Article 155 et seq. of the Zakon za zdraveto (Health Law), at issue in the main proceedings, on the ground that there is a risk that, in view of his state of health, the person concerned represents a danger to himself or others.


This request for a preliminary ruling concerns the interpretation of point (c) of the first subparagraph of Article 26(2) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ 2009 L 303, p. 1) and the validity of that provision in the light of Articles 10, 20, 21 and 22 of the Charter of <mask> of the European Union (‘the Charter’).


The principle of mutual trust between the Member States requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the <mask> recognised by EU law (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the System of Justice), C‑216/18 PPU, EU:C:2018:586, paragraph 36).


38. Irish Ferries challenged the contested decision and the notices issued in respect of Articles 18 and 19 of Regulation No 1177/2010 before the High Court (Ireland), claiming, in the first place, that that regulation did not apply where a cancellation had occurred several weeks before the date of the scheduled sailings. In the second place, Irish Ferries disputed the NTA’s interpretation and enforcement of Articles 18 to 20 of the regulation. More specifically, it argued that the delay in the delivery of the vessel constituted an ‘extraordinary circumstance’ which exempted it from the payment of the compensation provided for in Article 19 of that regulation. In the third place, Irish Ferries criticised NTA for having infringed Article 25 of that same regulation by having acted ultra vires. In its view, the NTA exercised its jurisdiction over transport services departing from France and heading to Ireland, whereas those services fall within the exclusive jurisdiction of the French authority. In the fourth place, Irish Ferries complains that the NTA infringed Article 24 of Regulation No 1177/2010 by having failed to limit the effect of its decision to passengers who had made a complaint in the form and within the deadlines specified in Article 24 of that regulation. In the fifth and final place, Irish Ferries contested the validity of the regulation in the light of the principles of proportionality, legal certainty and equal treatment, and of Articles 16, 17 and 20 of the Charter of <mask> of the European Union (‘the Charter’).


These requests for a preliminary ruling concern the interpretation of Article 191(2) TFEU, Article 3(1) and (2) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55), Articles 3 and 5 of Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment (OJ 2006 L 33, p. 22), and Articles 20 and 21 of the Charter of <mask> of the European Union (‘the Charter’).


In his application of 30 May 2018, the applicant stated that, in so far as he was adversely affected by the first contested decision, he should have access to those documents, in accordance with Article 41 of the Charter of <mask>, particularly as he had had to submit the second request for assistance on 10 April 2018 as a result of actions by the Head of Unit which had allegedly taken place during and after the drafting of the investigation report.


(Reference for a preliminary ruling – Immigration policy – Return of illegally staying third-country nationals – Parent of a seriously ill child who reached the age of majority during the course of an appeal against the rejection of an application for a residence permit – Order to leave the territory – Directive 2008/115 – Article 13 – Legal remedy with suspensory effect – Article 14 – Safeguards pending return – Basic needs – Grant of social assistance to the parent – Charter of <mask> of the European Union – Articles 7, 24 and 47 – Relationship of dependency between the parent and the seriously ill child)


As indicated by Lamont, R., ‘Article 24 of the Charter of <mask> of the European Union’, in The EU Charter of Fundamental Rights, Oxford, 2014, p. 672, Article 24, paragraph 24.23, the Charter contains, in addition to the rights of the child in Article 24, a prohibition of discrimination on the basis of age in Article 21, which, according to the author, implies that any discrimination of minors (in general) is prohibited. In my opinion, that finding does not preclude a specific category of minors defined according to age (namely minors aged 15 or over) from being able to rely on that prohibition in order to dispute the legality of a national provision (implementing EU law) which, as in the present case, has the effect of treating that category of minors, essentially, as adults, in so far as it deprives the minors in that category of the protection guaranteed by Article 24 of the Charter, given specific expression by Article 10(2) of Directive 2008/115, read in conjunction with Article 5(a) of that directive.


Such a conclusion could also lead to a situation where yet another aspect of newspaper publishing becomes fraught with unusual legal difficulties of its own. Most newspapers – ranging from the most serious to the more popular – provide for readers’ columns of this kind, where advice is given by columnists in respect of a variety of issues, including medical, legal, gardening, parenting and personal problems. If a newspaper could be made liable on a strict liability basis for poor or defective advice which caused either personal injury, or (subject to the limits contained in Article 9 of the Product Liability Directive) damage to property, this would bring about a new hazard for publishers, which, as the defendant pointed out in its written submissions, might have serious implications in practical terms for the freedom of the press as safeguarded by Article 11(2) of the Charter of <mask> of the European Union (and, by extension, Article 10 of the European Convention on Human Rights). All of this is to say that if the Product Liability Directive had been intended to bring about such a result, one would have expected that this would have been expressed in pellucidly clear and unmistakeable terms. The very fact that that directive is pointedly silent on this matter is in its own eloquent way testimony to the fact that the imposition of such liability in such circumstances was never intended by the EU legislature.


Article 3(2) and Article 32 of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions, read in the light of the principle of legal certainty and of the first paragraph of Article 47 of the Charter of <mask> of the European Union, must be interpreted as precluding recognition, without further conditions, in legal proceedings on the merits pending in a Member State other than the home Member State relating to a liability which a credit institution had been relieved of by a first reorganisation measure taken in the latter Member State, the effects of a second reorganisation measure seeking to transfer back, with retroactive effect at a date prior to the opening of such proceedings, that liability to that credit institution, where such recognition has the result that the credit institution to which the liabilities had been transferred by the first measure can no longer be sued, with retroactive effect, the purposes of those proceedings, thereby calling into question judicial decisions already adopted in favour of the applicant who is the subject of those same proceedings.


Therefore, while the <mask> of the persons concerned must be respected by the Member States, this must still be so in the case of the return procedure. The fundamental rights of the persons concerned may be material, for example taking account of their state of health,   or procedural, such as the form of return decisions   or even the availability of a legal remedy.


Recital 33 of Directive 2013/32 clearly states that the best interests of the child must be a primary consideration of Member States when applying the directive,   in accordance with the Charter and the UN Convention on the Rights of the Child of 1989,   and this is reflected in an express and general obligation laid down in Article 25(6) of the directive. In assessing the best interest of the child, Member States must in particular take due account of the minor’s well-being and social development, including his or her background. Accordingly, the provisions of Directive 2013/32 cannot be interpreted in such a way that they disregard the fundamental right of a child to maintain personal relations with his or her parents on a regular basis, the respect for which undeniably merges into the best interests of the child.   I recall that the Member States must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the <mask> protected by the legal order of the European Union.


Article 3(2) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, interpreted in the light of Articles 47 and 48 of the Charter of <mask> of the European Union, precludes a national provision or judicial practice according to which, where the suspect fails to appear when first summoned by the court and a national arrest warrant is issued, the right of access to a lawyer may be delayed until the warrant is executed and the suspect appears before the court.


As is clear from Article 1 of Directive 2011/83, read in the light of recitals 3, 4 and 7 thereof, that directive seeks to provide a high level of consumer protection. Furthermore, in EU policies, the protection of consumers – who are in a weaker position in relation to sellers or suppliers, inasmuch as they must be deemed to be less informed, economically weaker and legally less experienced than the opposite party – is enshrined in Article 169 TFEU and in Article 38 of the Charter of <mask> of the European Union (judgment of 27 March 2019, slewo, C‑681/17, EU:C:2019:255, paragraph 32 and the case-law cited).


Directive 2013/32, read in conjunction with Article 18 of the Charter of <mask> of the European Union and the principle of sincere cooperation arising under Article 4(3) TEU must be interpreted as meaning that, when an application for asylum has been the subject of a rejection decision that was confirmed by a judicial decision that became final before the incompatibility of that rejection with EU law was found, the determining authority, within the meaning of Article 2(f) of Directive 2013/32, is not required to re-examine that application ex officio. Article 33(2)(d) of Directive 2013/32 must be interpreted as meaning that the existence of a judgment of the Court finding that national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which he or she was not exposed to persecution or to a risk of serious harm or in which a sufficient degree of protection is guaranteed is incompatible with EU law constitutes a new element relating to the examination of an application for international protection, within the meaning of that provision. Furthermore, that provision is not applicable to a subsequent application, within the meaning of Article 2(q) of that directive, where the determining authority finds that the definitive rejection of the earlier application is contrary to EU law. Such a finding must necessarily be made by that authority when that incompatibility arises from a judgment of the Court or was established, as an ancillary finding, by a national court.


That latter measure is the most serious constraining measure allowed under Directive 2008/115 in a forced removal procedure.   It is, in principle, a measure of last resort.   It is therefore strictly regulated by the EU legislature, in Chapter IV of the directive, in such a way as to ensure the observance both of the principle of proportionality with regard to the means used and objectives pursued and of the <mask> of the migrants concerned.


Having regard to that context and those objectives, the individual right of each working parent to parental leave on the grounds of the birth or adoption of a child, enshrined in clause 2.1 of the revised Framework Agreement, must be interpreted as articulating a particularly important EU social right which, moreover, is laid down in Article 33(2) of the Charter of <mask>. It follows that that right cannot be interpreted restrictively (see, to that effect, judgment of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 36 and the case-law cited).


According to the applicant, the Commission’s errors of law and manifest errors of assessment must be examined in the light of the fundamental right of access to documents, which meets the objective of strengthening the legitimacy of administrative bodies in the context of their decision-making activities and which is enshrined in Article 42 of the Charter of <mask>. Any exception to, or limitation of that right should be interpreted restrictively. The applicant relies on the contradictory nature of the positions adopted by the Commission concerning the disclosure of information on the state of progress of the recovery of the State aid.


(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in civil matters — Regulation (EC) No 2201/2003 — Article 8(1) — Jurisdiction in matters of parental responsibility — Concept of ‘habitual residence of the child’ — Requirement of physical presence — Detention of the mother and child in a third country against the will of the mother — Infringement of the <mask> of the mother and child)


Article 9 of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts and Article 27 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, read in conjunction with Article 5(5) of, and point 29 of Annex I to, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the <mask> and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, do not regulate the formation of contracts, with the result that it is for the referring court to assess, in accordance with national legislation, whether a contract may be regarded as concluded between a water supply company and a consumer in the absence of the latter’s express consent.


In the case at hand, as the Commission maintains, at no point did it give assurances to the applicant as to the compatibility of the aid scheme at issue with the <mask>, especially since the Italian Republic implemented that scheme without waiting for the Commission to give a decision on it under Article 108 TFEU, thereby indicating the unlawfulness of that scheme.


Secondly, the applicants claim that the Italian authorities did not provide a detailed explanation of the new financial plans intended to replace the measures approved under the contested decision. In particular, the Italian authorities simply referred to the fact that the new plans did not provide for a prolongation of the concessions at issue, without offering any explanations regarding the financing of the A33 Asti – Cuneo motorway from the revenues of the SATAP A4 Torino – Milano motorway or regarding the possible takeover value to be paid to the concessionaires at the end of the concessions by the possible new concessionaire, and without guaranteeing that they would not ‘revive’ the prolongation of the concessions at issue in the future. In those circumstances, annulment of the contested decision would prevent the Commission from repeating the errors identified by the action at issue if the new financial plans contained aid measures whose compatibility with the <mask> depended on assessments similar to those underlying the contested decision.


However, it should still be borne in mind that, Article 1(6) of Directive 2006/123, read in the light of recital 14 of that directive, as fittingly put by Advocate General Wahl in his Opinion in Čepelnik (C‑33/17, EU:C:2018:311, points 50 and 53), does ‘not state that the field of labour law is, as a whole, excluded from the scope of the Services Directive’ and that ‘far from giving Member States carte blanche to apply their labour law regardless of the possible impact on the <mask>, the Services Directive provides for a limited exception only’.


The present request for a preliminary ruling concerns the interpretation of Article 4f(6) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications,   as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the <mask> Information System (‘the IMI Regulation’)   . That provision allows for the first time for partial access to a professional activity in the context of a system of mutual recognition of qualifications.


In recital 244 of the contested decision, the Commission noted that it had based its assessment of the operating aid in recital 227 of Decision 2014/883 on the finding that ‘granting operating aid in order to ensure the operation of an investment project that benefits of incompatible investment aid is inherently incompatible with the internal market’. Without the incompatible investment aid Gdynia airport would not exist, as it is entirely financed by that aid, and operating aid cannot be granted for non-existent airport infrastructure. In recital 245 of the contested decision, the Commission considered that that conclusion under the 2005 Guidelines is equally valid under the 2014 Guidelines and sufficient to find that the operating aid granted to the airport operator is incompatible with the <mask>. In recitals 246 and 247 of the contested decision, the Commission refers to the first compatibility condition established by the 2014 Guidelines (in point 113 thereof) and to Decision 2014/883, explaining that if that aid was not compatible with the 2005 Guidelines, it would not be compatible with the 2014 Guidelines either. Finally, in recitals 248 and 249 of the contested decision, the Commission analyses, for the sake of completeness, the compatibility of the operating aid with the Regional aid Guidelines.


On 15 April 2020, the Commission adopted Decision C(2020) 2416 final on State Aid SA.56795 (2020/N) – Denmark – Compensation for the damage caused by the COVID-19 outbreak to Scandinavian Airlines (‘the contested decision’), by which it concluded that the measure at issue, first, constituted State aid within the meaning of Article 107(1) TFEU and, secondly, was compatible with the <mask> on the basis of Article 107(2)(b) TFEU.


42 Such an interpretation is, in addition, supported by the objective of Regulation No 650/2012, which, according to recital 7 thereof, aims to facilitate the proper functioning of the <mask> by removing the obstacles to the free movement of persons who wish to assert their rights arising from a cross-border succession. In particular, in the European area of justice, the rights of heirs and legatees, of other persons close to the deceased and of creditors of the estate must be effectively guaranteed (see, to that effect, judgments of 1 March 2018, Mahnkopf, C‑558/16, EU:C:2018:138, paragraph 35, and of 1 July 2021, Vorarlberger Landes- und Hypotheken-Bank, C‑301/20, EU:C:2021:528, paragraphs 27 and 34).


The de facto and de jure situation resulting from those national differences in some cases leads to distortions of competition among creditors in the [Union] and creates obstacles to the <mask> where Member States have adopted different mandatory provisions more stringent than those provided for in Directive 87/102/EEC. 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.


(Reference for a preliminary ruling — <mask> in electricity — Directive 2009/72/EC — Article 3 — Consumer protection — Article 37 — Tasks and powers of the regulatory authority — Out-of-court dispute settlement — Concept of ‘party’ — Right to appeal against a decision of the regulatory authority — Complaint made by a household customer against an electricity distribution system operator)


3 Recitals 4, 5, 7 and 39 of Directive 2011/83 are worded as follows: ‘(4) In accordance with Article 26(2) TFEU, the <mask> is to comprise an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity. (5) … [T]he full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market. … (7) Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union. … (39) It is important to ensure for distance contracts concluded through websites that the consumer is able to fully read and understand the main elements of the contract before placing his order. To that end, provision should be made in this Directive for those elements to be displayed in the close vicinity of the confirmation requested for placing the order. It is also important to ensure that, in such situations, the consumer is able to determine the moment at which he assumes the obligation to pay the trader. Therefore, the consumer’s attention should specifically be drawn, through an unambiguous formulation, to the fact that placing the order entails the obligation to pay the trader.’


54. Therefore, whether aid granted to a research organisation amounts to State aid depends on the qualification of the funded activity as economic or non-economic. If the funded activity is non-economic in nature, State aid rules do not apply, even if the same entity engages also in economic activity, which is, however, clearly separated from the funded activity. If the funded activity is economic, such funding is State aid pursuant to Article 107(1) TFEU. Such aid may however ultimately be considered compatible with the <mask>, and consequently allowed.


An interpretation according to which, whereas economic value is derived from the non-energy products thus generated, the entirety of the consumption of energy products in the production process would benefit – counter to the principles recalled in paragraph 30 of the present judgment – from the exemption concerning the chargeable event giving rise to the tax would be such as to undermine attaining the objective of Directive 2003/96. In that respect, it should be recalled that, by laying down a system of harmonised taxation of energy products and electricity, that directive seeks, as is clear from recitals 3 to 5 thereof, to promote the proper functioning of the <mask> in the energy sector, in particular by avoiding distortions of competition (see, to that effect, judgment of 30 January 2020, Autoservizi Giordano, C‑513/18, EU:C:2020:59, paragraph 30 and the case-law cited).


Energy regulators should have the power to issue binding decisions in relation to electricity undertakings and to impose effective, proportionate and dissuasive penalties on electricity undertakings which fail to comply with their obligations or to propose that a competent court impose such penalties on them. Energy regulators should also be granted the power to decide, irrespective of the application of competition rules, on appropriate measures ensuring customer benefits through the promotion of effective competition necessary for the proper functioning of the <mask> in electricity. The establishment of virtual power plants – electricity release programmes whereby electricity undertakings are obliged to sell or to make available a certain volume of electricity or to grant access to part of their generation capacity to interested suppliers for a certain period of time – is one of the possible measures that can be used to promote effective competition and ensure the proper functioning of the market. Energy regulators should also be granted the power to contribute to ensuring high standards of universal and public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of consumer protection measures. Those provisions should be without prejudice to both the Commission’s powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market such as the free movement of capital. The independent body to which a party affected by the decision of a national regulator has a right to appeal could be a court or other tribunal empowered to conduct a judicial review.


That is the case irrespective of whether the measure in question ultimately does actually constitute aid.   It is only where it is clear that no aid exists that the Commission is not permitted to issue a suspension injunction. Although it has not yet been clarified whether a progressive tax rate structure can constitute a selective advantage,   the possibility that aid exists has not been clearly ruled out. Moreover, Hungary did not contest the Commission’s negative decisions, which have now become final. Therefore, it is in fact clear in the present case that the measures at issue constitute aid that is not compatible with the <mask>.


This request for a preliminary ruling concerns the interpretation of Articles 36 and 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 3 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the <mask> in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94).


That amendment makes explicit what, in my opinion, could be inferred from the previous text, read in the light of the principle of energy solidarity: the exemption must not be detrimental ‘to competition in the relevant markets which are likely to be affected by the investment, to the effective functioning of the <mask> in natural gas, to the efficient functioning of the regulated systems concerned, or to security of supply of natural gas in the Union’.


42. Second, it follows from the very wording of Article 107(2)(b) TFEU that aid to make good the damage caused by natural disasters or exceptional occurrences is to be compatible with the <mask>. It follows that, according to the FEU Treaty, those types of measures, while having a ‘compensatory’ objective, are regarded as State aid within the meaning of paragraph 1 of that article. That is a fortiori the case for damage caused by quite ordinary and foreseeable natural occurrences, such as the passage of wild birds. Furthermore, as the Commission has observed in its written observations, measures designed to make good the damage caused by protected animals, which are very frequent in the agriculture, fisheries and aquaculture sectors, are regularly classified as ‘State aid’ and are subject to examination of their compatibility within the meaning of the Guidelines in the agricultural and forestry sectors (26) or the Guidelines in the fishery and aquaculture sector.


It must be borne in mind that the Commission is required to initiate the formal investigation procedure if, following the preliminary examination referred to in Article 4 of Regulation 2015/1589, it was unable to satisfy itself that the notified measure is compatible with the <mask>. The same applies where the Commission entertains doubts as to the actual classification as ‘aid’, within the meaning of Article 107(1) TFEU of that measure (see, to that effect, inter alia, judgments of 10 May 2005, Italy v Commission, C‑400/99, EU:C:2005:275, paragraph 47; of 21 July 2011, Alcoa Trasformazioni v Commission, C‑194/09 P, EU:C:2011:497, paragraph 60; and of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 27).


Annex I, point 26, to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the <mask> and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that an activity consisting of the display in the inbox of an email service user of advertising messages in a form similar to that of real emails, and placed in the same position as those emails, falls within the concept of ‘persistent and unwanted solicitations’ of users of email services, within the meaning of that provision, if the display of those advertising messages is, first, sufficiently frequent and regular to be classified as ‘persistent solicitations’ and, second, may be classified as ‘unwanted solicitations’ in the absence of consent having been given by that user prior to that display.


Article 107(1) TFEU and Articles 32 to 34 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the <mask> in electricity and repealing Directive 2003/54/EC must be interpreted as not precluding national legislation which provides for the levying of a national tax on the production and incorporation of electricity into the electricity system in the territory of a Member State, where that tax is not applied to the incorporation into that system of electricity produced in the other Member States.


Consequently, it is impossible for the Court to review whether the conditions laid down in point 22 of the Guidelines were satisfied in the present case and whether they prevent the beneficiary from being eligible for the grant of rescue aid. Accordingly, the contested decision does not set out the reasons why the Commission found that it was not faced with serious difficulties in assessing the compatibility of the aid in question with the <mask>, for the purposes of the case-law cited in paragraph 37 above.


The General Court accordingly did not err in law when, in paragraph 151 of the judgment under appeal, it held that, while the existence of a market failure may be a relevant factor for declaring State aid compatible with the <mask>, the absence of such a failure does not necessarily mean that the conditions laid down in Article 107(3)(c) TFEU are not satisfied.


In the first place, the application of Article 101 TFEU is justified where the practices it covers are implemented in the territory of the <mask>, irrespective of the place where they were formed. If the applicability of prohibitions laid down under competition law were made to depend on the place where an agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions (judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16).


Moreover, as the Polish Government correctly noted, reading Article 36(1) of the Life Assurance Directive in the light of recital 52 thereof, it becomes clear that the purpose of distinguishing those two moments is to offer a consumer a certain period of time during which he or she can take full advantage of the diversity and increased competition (in the <mask> for assurance) so as to ‘enable him/her to choose the contract best suited to his/her needs’.


In the second place, it should be recalled that, pursuant to Article 3 of Regulation No 702/2014, individual aid granted under aid schemes is compatible with the <mask> and is exempted from the notification requirement under Article 108(3) TFEU if it meets the conditions laid down in Chapter I and the specific conditions for the relevant category of aid in Chapter III of that regulation.


Accordingly, without it being necessary to examine the pleas in law other than the fourth put forward by the appellant in support of its action, it must be concluded that the assessment of whether the sale of the Nürburgring assets to Capricorn involved the grant to Capricorn of aid incompatible with the <mask> raised doubts, within the meaning of Article 4 of Regulation No 659/1999, which should have led the Commission to initiate the procedure referred to in Article 108(2) TFEU.


Thus, national rules laying down limitation periods must be devised in such a way as to strike a balance between, on the one hand, the objectives of providing legal certainty and ensuring that cases are dealt with within a reasonable time as general principles of EU law and, on the other, the effective and efficient application of Articles 101 and 102 TFEU, in order to safeguard the public interest in preventing the operation of the <mask> being distorted by agreements or practices harmful to competition.


8 Article 107 of that directive provided: ‘The services referred to in Article 106 must meet the following conditions: (a) they must be labour-intensive; (b) they must largely be provided direct to final consumers; (c) they must be mainly local and not likely to cause distortion of competition. There must also be a close link between the decrease in prices resulting from the rate reduction and the foreseeable increase in demand and employment. Application of a reduced rate must not prejudice the smooth functioning of the <mask>.’


Point 11 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the <mask> and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that, where editorial content is used to promote a product, that promotion is ‘paid for’ by the trader also where that trader has provided the media operator with a benefit which consists of goods or services or assets of any other kind.


Furthermore, I would also point out that in my Opinion of 3 June 2021, in Case C‑57/19 P, Tempus Energy (currently pending), I explain that in that case the General Court’s approach must be rejected and its judgment set aside because the General Court made errors of law by finding that the notified aid measure gave rise to serious doubts regarding its compatibility with the <mask>. In my view, the General Court erred in that regard by taking into account, as a primary indicator of doubts, the length and circumstances of the pre-notification contacts and the complexity and novelty of the measure and further erred in faulting the Commission for failing to investigate appropriately certain aspects of the UK capacity market.


(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to a procedure for the recovery of State aid following a decision declaring the aid incompatible with the <mask> and ordering its recovery – Refusal to grant access – Exception relating to the protection of the purpose of inspections, investigations and audits – Overriding public interest – Principle of non-discrimination – Obligation to state reasons)


Furthermore, since Directive 2000/35, adopted on the basis of Article 95 EC (now Article 114 TFEU), falls within the framework of the approximation of the laws of the Member States, the object of which is the establishment and functioning of the <mask>, account may be taken, for the purposes of its interpretation, of the concepts of ‘goods’ and ‘services’ within the meaning of the provisions of the FEU Treaty providing for the free movement of goods and services, and the Court’s case-law interpreting those fundamental freedoms (see, by analogy, judgment of 9 July 2020, RL (Directive combating late payment), C‑199/19, EU:C:2020:548, paragraph 30).


‘If Bulgaria or Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the <mask>, including any commitments in all sectoral policies which concern economic activities with cross-border effect, or an imminent risk of such breach the Commission may, until the end of a period of up to three years after accession, upon motivated request of a Member State or on its own initiative, take appropriate measures.


Furthermore, after pointing out, in paragraph 111 of that judgment, that that measure ‘was challenged in three respects by various operators who were supposed to benefit from it’, without providing further details as to the grounds for those statements or as to any problems they raised, the General Court concluded that that circumstance was among those which, according to paragraph 115 of that judgment, constituted an indication capable of establishing the existence of doubts as to the compatibility of the measure at issue with the <mask>.


In that regard, it is apparent from the objectives pursued by that directive that it provides for a harmonised taxation regime for energy products and electricity designed, inter alia, as is apparent from recitals 2 to 5 and 24 thereof, to promote the smooth functioning of the <mask> in the energy sector by avoiding, inter alia, distortions of competition (see, to that effect, judgments of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 29, and of 27 June 2018, Turbogás, C‑90/17, EU:C:2018:498, paragraph 34).


That article nonetheless requires that ‘full regard’ be had, in particular, to Article 86 EC Treaty (now Article 106 TFEU).   In addition to Article 14 TFEU, Protocol (No 26) on services of general interest, and Article 36 of the Charter of Fundamental Rights of the European Union (‘the Charter’), that provision concerns the compliance of ‘services of general economic interest’ with the Treaty.   In other words, Article 106(2) TFEU is aimed at reconciling the Member States’ interest in using certain undertakings as an instrument of economic or social policy with the European Union’s interest in ensuring compliance with the rules on competition and preserving the unity of the <mask>.


However, the first step, namely the acquisition of a 48.5% stake in Morpol, was closed before it was notified to the European Commission. In the Commission’s view, the acquisition of that stake was sufficient to confer control over Morpol, and, therefore, it constituted a concentration for the purposes of Council Regulation (EC) No 139/2004.   The Commission therefore found in the decision at issue that, in closing the acquisition of the 48.5% stake in Morpol before it was notified and before it was declared compatible with the <mask>, Marine Harvest had infringed, first, the notification obligation provided for by Article 4(1) of Regulation No 139/2004, and, second, the standstill obligation under Article 7(1) of that regulation. Consequently, the Commission imposed two fines of EUR 10 million each for the infringement of those provisions.


According to case-law, Directive 2014/40 has a twofold objective of facilitating the smooth functioning of the <mask> for tobacco and related products, while taking as a base a high level of protection of human health, especially for young people.   As the referring court notes, an image which the consumer associates with tobacco packaging may, in the same way as a faithful depiction, trigger a purchasing impulse. That impulse may be combated by the required health warnings. Thus, a broad interpretation of the concept of images of unit packets within the meaning of Article 8(8) as covering also images which the consumer associates with tobacco packaging would allow for those warnings to be affixed on those images, thereby discouraging the purchase of tobacco products and enhancing the protection of human health.


Furthermore, it must be pointed out that this plea lacks any independent content. Under such a plea, the applicant may, in order to preserve the procedural rights which it enjoys under the formal investigation procedure, rely only on pleas which show that the assessment of the information and evidence which the Commission had or could have had at its disposal during the preliminary examination phase of the measure notified ought to have raised doubts as to the compatibility of that measure with the <mask> (see, to that effect, judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81; of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 35; and of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59), such as the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination phase or the existence of complaints submitted by third parties. It should be noted that the fourth plea repeats in condensed form the arguments raised under the first to third pleas, without identifying specific evidence relating to potential serious difficulties.


The same is true of paragraph 72 of the judgment under appeal, from which it is apparent that, in order to establish the existence of doubts as to the compatibility of the measure at issue with the <mask>, Tempus could rely not only on all relevant information that was available to the Commission, but also on all information that ‘could have been available’ to that institution. By reasoning in this way, the General Court implied that the Commission should have had doubts as to whether an aid measure was compatible with the internal market solely on the ground that there was a relevant piece of information which could have been available to it without it being necessary to show that that institution was actually aware either of that information itself or of other information obliging it, in accordance with the case-law of the Court of Justice cited in paragraph 45 above, to go beyond a mere examination of the information brought to its notice.


The creation of an integrated market for electronic payments in euro, with no distinction between national and cross-border payments is necessary for the proper functioning of the <mask>. To that end, the single euro payments area (SEPA) project aims to develop common Union-wide payment services to replace current national payment services. As a result of the introduction of open, common payment standards, rules and practices, and through integrated payment processing, SEPA should provide Union citizens and businesses with secure, competitively priced, user-friendly, and reliable payment services in euro. This should apply to SEPA payments within and across national boundaries under the same basic conditions and in accordance with the same rights and obligations, regardless of location within the Union. …


In particular, the General Court did not indicate either the specific point to which the Commission’s doubts had to relate or the specific element which should have given rise to such doubts. It should also be noted that, although the General Court referred, in paragraphs 136 to 145 of the judgment under appeal, to certain elements relating to the potential of DSR that the Commission could take into consideration, it is not apparent from reading that part of the judgment under appeal that one or other of those elements was such as to cause the Commission to have doubts as to whether the potential of DSR had actually been taken into account in the design of the measure at issue and, consequently, as to the compatibility of the latter with the <mask>.


Article 6(1) of Regulation No 659/1999, entitled ‘Formal investigation procedure’, provides that the decision to initiate the formal investigation procedure is to summarise the relevant matters of fact and law, include a preliminary assessment by the Commission of whether the proposed measure constitutes aid, set out the grounds for doubting its compatibility with the <mask> and invite the Member State concerned and other interested parties to submit their comments within a specified period.


In that regard, it must be noted that restoring the situation prior to the payment of aid which was unlawful or incompatible with the <mask> is a necessary requirement for preserving the effectiveness of the provisions of the Treaties concerning State aid (judgment of 7 March 2018, SNCF Mobilités v Commission, C‑127/16 P, EU:C:2018:165, paragraph 104 and the case-law cited).


In the light of the foregoing, it must be noted that, even if the interested parties in the present case had been given the opportunity to submit comments on the 2014 Guidelines before the decision at issue was adopted and had succeeded in showing that the operating aid met the relevant criteria laid down in those guidelines, the Commission would, in any event, for the reasons set out in recitals 244 and 245 of that decision, having been fully entitled to conclude that that aid is incompatible with the <mask>. By rejecting the Commission’s arguments that the decision at issue would have been identical if the interested parties in the present case had been invited to express their views on the relevance of the 2014 Guidelines, the General Court therefore disregarded the case-law set out in paragraph 81 above and misinterpreted the decision at issue.


It follows from the foregoing considerations that the answer to the question referred is that Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the <mask> in natural gas and repealing Directive 2003/55/EC must be interpreted as not precluding that the effects of a decision of a regulatory authority, referred to in Article 41(11) of that directive, extend to the situation of the parties to the dispute before that authority which prevailed between them before the emergence of that dispute, inter alia, as regards a contract for the transmission of natural gas, by requiring a party to that dispute to bring that contract into conformity with Union law for the entire contractual period.


The Italian Government contends that Article 25(16) of Sicilian Regional Law No 19/2005 must be regarded as compatible with Articles 107 and 108 TFEU. In the view of the Italian Government, that legislation fulfils the conditions laid down in Article 26 of Regulation No 702/2014 and it is thus exempted from the notification requirement set out in Article 108(3) TFEU. That legislation should be regarded as compatible with the <mask>, given the Commission’s finding, in the 2002 decision, that similar measures fell within the scope of Article 107(3)(c) TFEU. That finding should be confirmed in respect of Article 25(16) of Sicilian Regional Law No 19/2005.


On 26 April 2020, the Commission adopted Decision C(2020) 2795 final on State aid SA.56867 (2020/N, ex 2020/PN) – Germany – Compensation for the damage caused by the COVID‑19 outbreak to Condor (‘the contested decision’), by which it concluded that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU and was compatible with the <mask> on the basis of Article 107(2)(b) TFEU.


14. The relevant paragraphs of the judgment in Green Network describe as follows the green certificate scheme in force in Italy prior to the 2011 reform: ‘12 Article 11(1) of Legislative Decree No 79 on the implementation of Directive 96/92/EC [of the European Parliament and of the Council of 19 December 1996 concerning common rules for the <mask> in electricity (OJ 1997 L 27, p. 20)] (“Legislative Decree No 79/1999”) requires operators having produced or imported electricity to feed into the national grid, during the following year, a quota of electricity produced from renewable energy sources (“green electricity”) from installations that entered into service or increased their production after the entry into force of that decree. Pursuant to Article 11(3) of the same decree, this requirement may be discharged by, inter alia, purchasing all or part of that quota from other producers, provided that the electricity fed into the national grid is green, or by purchasing green certificates from the designated national grid manager, Gestore servizi energetici SpA (“GSE”), since 1 November 2005. To that end, the producers and importers concerned must either submit certificates showing that a quota of electricity produced or imported has been produced from renewable energy sources or buy green certificates. 13 Article 4(6) of the Ministerial Decree laying down rules for the implementation of standards on electricity produced from renewable energy sources under Article 11(1), (2) and (3) of Legislative Decree No 79 of 16 March 1999 ([…] “Ministerial Decree of 11 November 1999”), provides: “The obligation in Article 11(1) and (2) of Legislative Decree [No 79/1999] may be performed by importing, wholly or in part, electricity generated in installations that entered into service after 1 April 1999, drawing on renewable energy sources, provided that those installations are situated in foreign countries that adopt analogous instruments for the promotion and encouragement of renewable energy based on market mechanisms affording the same opportunity to installations situated in Italy. In that case, the application mentioned in paragraph 3 is submitted by the holder of the obligation at the same time as the contract for the purchase of the electricity generated by the installation and the authorisation for the feeding of that electricity into the national grid. All data shall be certified by the authority designated under Article 20(3) of Directive [96/92], in the country in which the installation is situated. In the case of countries which are not members of the European Union, acceptance of the application is subject to the conclusion of an agreement between the national grid manager and the equivalent local authority determining the arrangements for the necessary verifications”. 14 Pursuant to Article 20(3) of Legislative Decree No 387 on the implementation of Directive [2001/77] on the promotion of electricity produced from renewable energy sources in the internal electricity market ([…]; “Legislative Decree No 387/2003”), operators which import electricity produced in other Member States of the European Union may request exemption of GSE from the obligation to purchase green certificates under Article 11 of Legislative Decree No 79/1999 for the proportion of electricity imported, by presenting it a certified copy of the guarantee of origin issued in accordance with Article 5 of Directive 2001/77. In the case of import of electricity produced in a third State, the same Article 20(3) makes that exemption conditional on the conclusion, between the Italian Republic and the third State concerned, of an agreement requiring the electricity concerned to be produced from renewable energy sources and guaranteed as such according to the same arrangements as those provided for in Article 5 of Directive 2001/77. 15 Such an agreement was concluded on 6 March 2007 between the competent Italian ministries and the Federal Environment, Transport, Energy and Communications Department of the Swiss Confederation. That agreement provides for the mutual recognition of guarantees of origin of electricity imported from 2006, the year in which the Swiss Confederation enacted legislation in conformity with Directive 2001/77. 16 By virtue of Article 4 of Legislative Decree No 387/2003, GSE is responsible for monitoring compliance with the obligation under Legislative Decree No 79/1999 and for reporting cases of breach to the AEEG (Autorità per l’energia elettrica e il gas, Electricity and Gas Authority) which has the power, in such cases, to impose the penalties provided for by Law No 481 on the rules relating to competition and the regulation of public utility services – Establishment of regulatory authorities for public utility services …’. 2. Legislative Decree No 28/2011 (8)


However, as the Commission submits, in essence, it follows from an overall reading of recitals 244 to 254 of the decision at issue that recitals 244 and 245 of that decision on their own formed the basis for the finding that the operating aid was incompatible with the <mask>, irrespective of any application of the 2014 Guidelines to that aid, with the finding in the decision at issue that that aid was incompatible with the internal market having two autonomous legal bases. It should be noted in that regard that the General Court itself acknowledged, in paragraph 86 of the judgment under appeal, that the conclusion that the operating aid was incompatible with the internal market in so far as the investment aid itself was incompatible with the internal market does not stem from a condition expressly laid down in the Regional aid Guidelines or in the 2014 Guidelines.


The Commission stated in that decision that the measure at issue constituted State aid which was incompatible with the <mask> and that it had been unlawfully put into effect. The Polish authorities had to cancel permanently all payments suspended pursuant to the decision to initiate the procedure. Since the measure at issue had not in actual fact been implemented, the Commission considered that there was no need to recover aid from beneficiaries.


Far less is known about situations in which a private party requires another private party to have its residence at a specified location. In terms of EU law, obscurity prevails. Is it lawful that, in many instances, it is virtually impossible for a customer who does not reside in the same Member State as that in which the bank is established to obtain a mortgage from that bank? Can an insurer refuse to provide coverage for a potential customer located in another Member State? To a layman, at the very least, such situations are difficult to reconcile with the objective of an <mask>. While for some such practices are incompatible with the rationale of an internal market ‘in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’,   others would point to a supposedly fundamental difference between the activity of public and private entities and the fact that in terms of underlying logic, at least initially, public activity was to be governed by the fundamental freedoms and private activity by the provisions of competition law. The rest was left to ‘the market’ itself.


This reference for a preliminary ruling concerns the interpretation of Article 9 of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19), Article 27 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), and Article 5(5) of, and point 29 of Annex I to, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the <mask> and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).


In order to allow citizens to avail themselves, with all legal certainty, of the benefits offered by the <mask>, this Regulation should enable them to know in advance which law will apply to their succession. Harmonised conflict-of-laws rules should be introduced in order to avoid contradictory results. The main rule should ensure that the succession is governed by a predictable law with which it is closely connected. For reasons of legal certainty and in order to avoid the fragmentation of the succession, that law should govern the succession as a whole, that is to say, all of the property forming part of the estate, irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State.


37. The Kingdom of Denmark does not consider Article 13(3) of Regulation No 1151/2012 to be as clear as the Commission does. It argues that the fact that that provision concerns products ‘produced or marketed in that Member State’ is not sufficient in itself to determine the scope of application of that regulation. The existence of unlawful use which has to be prevented under that provision depends on whether the cheese is intended to be marketed on the <mask> or exported to third countries. The Kingdom of Denmark agrees with the Commission that protection is to be afforded already at the moment of production, but only if the name registered as a PDO is used unlawfully at that moment. However, the use of registered names on products intended for export to third countries is not an unlawful use. There is therefore no obligation to prevent the use of the name ‘Feta’ for cheese produced in Denmark, but intended to be exported to third countries. Had the EU legislature intended that exports to third countries should be covered by Regulation No 1151/2012, it would have had to state so explicitly.


It is settled case-law that, as the criterion of serious difficulties is objective in nature, the existence of such difficulties must be looked for not only in the circumstances in which the Commission’s decision was adopted after the preliminary investigation but also in the assessments upon which the Commission relied. It follows that the lawfulness of a decision not to raise objections, based on Article 4(3) of Regulation No 659/1999, depends on the question of whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary investigation phase of the measure notified should objectively have raised doubts as to the compatibility of that measure with the <mask>.


In the first part, Hungary relies on Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the <mask> (OJ 2006 L 376, p. 36) to claim that the EU legislation relating to the freedom to provide services gives effect to the fundamental principle that every Member State must recognise the terms and conditions of employment applied in conformity with EU law by another Member State, and that the protection of the rights of posted workers is sufficiently guaranteed by the legislation of the State of origin.


Accordingly, without it being necessary to examine the remainder of the arguments put forward by the appellant in support of its action, in so far as it seeks annulment of the second contested decision, it must be concluded that the assessment of whether the sale of the Nürburgring assets to Capricorn involved the grant to Capricorn of aid incompatible with the <mask> raised doubts, within the meaning of Article 4 of Regulation No 659/1999, which should have led the Commission to initiate the procedure referred to in Article 108(2) TFEU.