3 Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) (‘Regulation No 510/2006’), provided, in the second subparagraph of Article 5(8) thereof, that the Republic of Bulgaria and Romania were to introduce the laws, regulations or administrative provisions necessary to comply with paragraphs (4) to (7) of Article 5 not later than one year after the date of <mask>.


In the present case, that referring court wonders whether circumstances pertaining to the first judicial appointment of a judge in a Member State, at a time when that State was still governed by an undemocratic regime and prior to that State’s <mask> to the European Union, and the ongoing retention of such a judge within the judiciary of that State after the fall of the Communist regime, is capable of casting doubts on the independence and impartiality of that judge for the purposes of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) today. By its subsequent questions, that court, in essence, extends the same question also to subsequent judicial appointments in Poland, suggesting that there were other procedural issues that could have had an impact on those appointments. It would thus appear that the referring court is in fact asking whether it may start carrying out an indirect vetting process, with regard to the filtering of appeals on points of law to the national supreme court, of potentially all Polish judges appointed before 2018, in the name of judicial independence guaranteed under EU law.


Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 adapting certain directives in the field of environment, by reason of the <mask> of the Republic of Croatia (OJ 2013 L 158, p. 193).


246 In this respect, it may be noted that certain rules of international law may prevent the European Union, by reason of its status as an international organisation, from acceding to an international agreement or, at the very least, may narrowly circumscribe such <mask> (see, to that effect, Opinion 2/91 (ILO Convention No 170) of 19 March 1993, EU:C:1993:106, point 5, and judgment of 20 November 2018, Commission v Council (Antarctic PMI), C‑626/15 and C‑659/16, EU:C:2018:925, paragraphs 128 to 130). Similarly, in some cases international law has precluded the conclusion with a third State of treaties applicable to a non-self-governing territory, in particular on account of infringements committed in that territory by that State (ICJ Advisory Opinion of 21 June 1971 concerning the legal consequences for States of the continued presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970) – ICJ Reports 1971, p. 16, paragraphs 122 to 126).


It is common ground that the arbitration clause in Article 9 of the BIT is, like the clause at issue in the case which gave rise to the judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158), capable of leading to a situation in which an arbitration body rules in disputes which may concern the application or interpretation of EU law. Accordingly, that arbitration clause is such as to call into question not only the principle of mutual trust between the Member States but also the preservation of the particular nature of EU law, ensured by the preliminary ruling procedure provided for in Article 267 TFEU. That clause is, therefore, incompatible with the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU and has an adverse effect on the autonomy of EU law enshrined, inter alia, in Article 344 TFEU (see, to that effect, judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraphs 58 and 59). Furthermore, as is confirmed by Article 4(1) of the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union, from the date of <mask> of the Republic of Poland to the European Union on 1 May 2004, Article 9 of the BIT could no longer serve as the basis for arbitration proceedings between an investor and that Member State.


31. The agreement at issue in the present case is a facultative mixed agreement in the area of transport policy, an area in which the EU shares competence with its Member States. (16) No part of the agreement at issue belongs to an area of exclusive Member State competence, nor is that disputed in the case. In other words, all areas covered by the COTIF could be regulated by the European Union. A number of questions were indeed regulated internally to a large extent even before the EU’s <mask> to the COTIF. (17)


It therefore seems necessary to examine the national legislation in the light of the freedoms of movement and, in particular, the freedom of establishment. Indeed, as already said, Gibraltar is a European territory for whose external relations a Member State is responsible, and that EU law is in principle applicable to that territory pursuant to Article 355(3) TFEU.   It is also clear and established that the exclusions of the territory of Gibraltar from the application of Union acts in certain areas of law, laid down in the 1972 Act of <mask>, do not relate to the freedom of establishment or to the free movement of capital, guaranteed by Articles 49 and 63 TFEU respectively. In other words, Articles 49 and 63 TFEU apply to the territory of Gibraltar by virtue of Article 355(3) TFEU.


The national provisions at issue entered the scope of EU law by virtue of being the national implementation, primarily, of the MCV Decision and, secondarily, also of the Act of <mask>.   Thus, the Charter is applicable, shadowing and monitoring the exercise of national public power being implemented in order to meet Member State’s EU obligations. This does not mean, of course, that the MCV Decision or the Act of Accession, even if they triggered the applicability of the Charter pursuant to its Article 51(1), would be the basis of an actual ‘right or freedom’ for private parties.


As regards the first part of the second plea, alleging infringement of Article 22(a) of Regulation 2016/1036 and of Section 15(a) and (d) of the Protocol on the <mask> of China to the WTO, which was examined in paragraphs 155 to 162 of the judgment under appeal, the General Court held that that protocol could not be relied on in order to challenge the legality of Regulation 2016/1036 and that it was also necessary to reject the alleged infringement of Article 22(a) of Regulation 2016/1036. As regards the second part of that plea, alleging a manifest error of assessment and infringement of Article 2(7) of Regulation 2016/1036, which was examined in paragraphs 163 to 178 of the judgment under appeal, the General Court rejected it as unfounded. As regards the third part of that plea, alleging a failure to state reasons, which was examined in paragraphs 179 to 182 of the judgment under appeal, the General Court also rejected it as unfounded.


Furthermore, as I have already indicated in point 126 of this Opinion, the attempt to link the commitments made during the Republic of Croatia’s <mask> to the European Union with those values and principles is not to my mind sufficient for those values and principles to serve as an independent basis for the action. The line of argument based on failure to fulfil commitments made during the accession process must therefore also be rejected, since those commitments are not legal obligations under EU law and cannot be relied upon for the purposes of Article 259 TFEU.


94. Article 2 of the <mask> Agreement reads as follows: ‘Without prejudice to the object and the purpose of the Convention to promote, improve and facilitate international traffic by rail and without prejudice to its full application with respect to other Parties to the Convention, in their mutual relations, Parties to the Convention which are Member States of the Union shall apply Union rules and shall therefore not apply the rules arising from that Convention except in so far as there is no Union rule governing the particular subject concerned.’ (78)


At the hearing, European Food and Others and Viorel Micula and Others also claimed that Romania’s <mask> to the European Union had not made it possible to establish mutual trust between that Member State and the other Member States, since its accession had been made conditional on the implementation of a mechanism for cooperation and verification of progress in that Member State to address specific benchmarks in the areas of judicial reform and the fight against corruption.


59. The exercise of EU competence might happen internally, through the adoption of internal legislation, or externally, by the very fact of <mask> to the international agreement which regulates areas of shared competence. The ability to conclude a mixed agreement in an area of shared competence does not depend on the condition that such competence was already exercised internally. It may be exercised for the first time by concluding an international agreement.


‘Notwithstanding the obligations under the Treaties on which the European Union is founded, Hungary may maintain in force for seven years from the date of <mask> the prohibitions laid down in its legislation existing at the time of signature of this Act on the acquisition of agricultural land by natural persons who are non-residents or non-nationals of Hungary and by legal persons. In no instance may nationals of the Member States or legal persons formed in accordance with the laws of another Member State be treated less favourably in respect of the acquisition of agricultural land than at the date of signature of the Accession Treaty. …


Firstly, the Bulgarian Government submits that the Court does not have jurisdiction to examine the questions asked by the Rayonen Sad Haskovo (Haskovo District Court) in so far as the first dismissal of the applicant occurred on 29 April 2004, namely before the <mask> of the Republic of Bulgaria to the European Union on 1 January 2007. The Court would not have jurisdiction to reply to a question on the interpretation of EU law referred by a Member State court where the factual circumstances to which EU law applies occurred before the accession of that Member State to the European Union.


(Reference for a preliminary ruling – Article 2 TEU – Values of the European Union – Rule of law – Article 49 TEU – <mask> to the European Union – No reduction in the level of protection of the values of the European Union – Effective judicial protection – Article 19 TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Scope – Independence of the members of the judiciary of a Member State – Appointments procedure – Power of the Prime Minister – Involvement of a judicial appointments committee)


132. In the light of all the foregoing considerations, I suggest that the Court should: – annul Article 3 of Council Decision (EU) 2019/1754 of 7 October 2019 on the <mask> of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications; – annul Article 4 of Decision 2019/1754 in so far as it refers to the Member States; – maintain the effects of the annulled parts of Decision 2019/1754 in relation to the ratifications of the Geneva Act effected pursuant to that decision by the French Republic and Hungary, and in relation to such ratifications of or accessions to that act as may be effected, prior to the date of the Court’s judgment, by the Republic of Bulgaria, the Czech Republic, the Italian Republic, the Portuguese Republic and the Slovak Republic, until the entry into force, within a reasonable time not exceeding six months from the date on which judgment is delivered, of a decision of the Council of the European Union; – order the Council, in addition to bearing its own costs, to pay those incurred by the European Commission; – order the Kingdom of Belgium, the Czech Republic, the Hellenic Republic, the French Republic, the Republic of Croatia, the Italian Republic, Hungary, the Kingdom of the Netherlands, the Republic of Austria and the Portuguese Republic to bear their own costs.


Article 37 of the Act of <mask> empowers the Commission to take appropriate measures in case of imminent risk that Romania would cause a breach in the functioning of the internal market by a failure to implement the commitments it has undertaken. Article 38 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk of serious shortcomings in Romania in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.


21 See, by analogy, judgment of 12 September 2002, Niemi (C‑351/00, EU:C:2002:480, paragraphs 54 and 55). In the same vein, Article 12(3) of Directive 2006/54 provides that, ‘for Member States whose <mask> took place after 17 May 1990 and which were on 1 January 1994 Contracting Parties to the Agreement on the European Economic Area, the date of 17 May 1990 … shall be replaced by 1 January 1994’.


163 In that context, it is important to note that, under Article 2 of the Act of <mask>, the acts adopted by the EU institutions before accession, which include Decision 2006/928, are to be binding on Romania from the date of its accession to the European Union and, in accordance with Article 2(3) of the Treaty of Accession, are to remain in force until they are repealed (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 163).


In the present case, it is apparent from the request for a preliminary ruling that the vehicle in question in the main proceedings was parked on 30 June 2012, that is to say, before the <mask> of the Republic of Croatia to the European Union. It follows, ratione temporis, that the Rome I and Rome II Regulations are not applicable and that the Court of Justice does not have jurisdiction to answer the eighth question and the second part of the ninth question.


Therefore, the legal effects of the reports on Romania stem from the obligations flowing from the principle of sincere cooperation enshrined in Article 4(3) TEU. Indeed, the reports constitute the basis for assessing whether Romania complies with its obligations with regard to the MCV benchmarks. Those reports contain specific recommendations to guide the efforts of Romania. As the Commission points out, the purpose of the recommendations is to support Romania’s efforts to attain the objectives of the MCV Decision. Since the benchmarks give specific expression to the conditions of the Treaty of <mask> and because the MCV Decision was adopted on the basis of that act, Romania has an enhanced obligation of cooperation on the basis of the MCV. Sincere cooperation is therefore not limited to simply reporting the progress, but rather includes the obligation to take account of the recommendations when adopting legislative or administrative measures in the fields covered by the benchmarks of the MCV Decision.


I will address all of those questions in turn as follows. First, I shall start by confirming that the MCV Decision and the reports adopted by the Commission on its basis are indeed acts of the European Union (a). Second, I will examine whether the Treaty of <mask> constitutes the proper legal basis of the MCV Decision (b). Third, I will turn to the issue of legal value and effects of the MCV and of the Commission’s reports adopted within its framework (c). Fourth, I will conclude this section by examining whether the national measures at issue in the present cases fall within the scope of the MCV (d).


In the third place, the line of argument by which the Commission relies, in support of the second part of its second ground of appeal, on a breach of the Europe Agreement must be rejected as inadmissible or ineffective. First, by that argument, the Commission necessarily accepts that the General Court correctly found that any grant of possible State aid took place, in this case, before Romania’s <mask> to the European Union, which contradicts the wording of the decision at issue. Second, since that decision was adopted on the basis of Articles 107 and 108 TFEU, the Commission cannot, at the stage of this appeal, rely on the Europe Agreement. The EU judicature cannot substitute a different legal base for the legal base of that decision.


The Kingdom of Spain argues that the wording of Article 35(2) of Regulation 2018/1971 is clear and confirmed by recital 34 of that regulation, which also refers to the possibility of such participation on the part of NRAs of ‘third countries’. It asserts that participation in BEREC, as provided for in Article 35(2), presupposes the participation of an authority linked to an organisation in the nature of a State, with the result that only a State can have an NRA. The Kingdom of Spain also notes that recital 34 cites EEA and European Free Trade Association (EFTA) States and candidates for <mask> as examples of third countries.


In that particular context, the dispute settlement clause contained in the BIT should be understood as compensating for the absence of mutual trust between the Kingdom of Sweden and Romania. It was then a matter of ensuring the protection of the investors of the Member States in Romania, by ensuring, in particular, in the absence of sufficient confidence in the respect by that State, before <mask>, of the right of investors to an effective remedy, the possibility of having recourse to a dispute settlement system outside the judicial system of that State.


In addition, as the Advocate General observed in point 152 of his Opinion in Cases C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 and as the Commission and the Belgian Government have noted, those benchmarks give concrete expression to the specific commitments undertaken by Romania and the requirements accepted by it at the conclusion of the <mask> negotiations on 14 December 2004, set out in Annex IX to the Act of Accession, concerning, in particular, the areas of justice and the fight against corruption.


3 Recitals 4, 6, 26 and 34 of Regulation No 1215/2012 state: ‘(4) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential. … (6) In order to attain the objective of free circulation of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding and directly applicable. … (26) Mutual trust in the administration of justice in the [European] Union justifies the principle that judgments given in a Member State should be recognised in all Member States without the need for any special procedure. In addition, the aim of making cross-border litigation less time-consuming and costly justifies the abolition of the declaration of enforceability prior to enforcement in the Member State addressed. As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed. … (34) Continuity between the [Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by the successive conventions on the <mask> of new Member States to that Convention (“the 1968 Brussels Convention”)], [Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)] and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the 1968 Brussels Convention and of the Regulations replacing it.’


In the present case, the Commission submits, since the arbitral proceedings were pending on the date of Romania’s <mask> to the European Union, the arbitral tribunal’s decision-making process was ongoing at that date. Furthermore, according to the findings made by that tribunal, the arbitration applicants suffered gradually, over the period between 2005 and 2011, the harm for which they sought compensation.


Under the third paragraph of Article 1(1)(f) of Directive 2015/1535, that provision covers technical regulations imposed by the authorities designated by the Member States and appearing on a list drawn up and updated, where appropriate, by the Commission in the framework of the committee referred to in Article 2 of that directive. Such a list was published on 31 May 2006,   namely before Romania’s <mask> to the European Union, and therefore does not include the Romanian authorities. Nonetheless, the Commission states in its observations that, at the time of its accession, Romania had notified that only its central authorities were empowered to prescribe technical regulations within the meaning of Directive 2015/1535. Acts of the municipality of Bucharest are thus not subject to the notification obligation under Article 5 of that directive.


As a preliminary point, it should be recalled that Council Regulation (EC) No 1891/2006 of 18 December 2006 amending Regulations (EC) No 6/2002 and (EC) No 40/94 to give effect to the <mask> of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs (OJ 2006 L 386, p. 14), introduced into Regulation No 6/2002 Title XIa, containing Article 106a to 106f.


As a preliminary point, it must be noted that, in so far as, in accordance with recital 34 of Regulation No 1215/2012, that regulation repeals and replaces Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which itself replaced the Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by successive conventions on the <mask> of new Member States to that convention (‘the Brussels Convention’), the Court’s interpretation of the provisions of the latter legal instruments also applies to Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’ (judgment of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 23 and the case-law cited). That is the case with point 3 of Article 5 of the Brussels Convention and Regulation No 44/2001, on the one hand, and with point 2 of Article 7 of Regulation No 1215/2012, on the other (see, to that effect, judgment of 31 May 2018, Nothartová, C‑306/17, EU:C:2018:360, paragraph 18 and the case-law cited).


In that regard, since the <mask> of the Slovak Republic and the Czech Republic to the European Union on 1 May 2004, freedom of movement for workers fully applies, in principle, to Czech nationals working in Slovakia, pursuant to Article 24 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33), and point 1.1 of Annex V thereto, subject only to the transitional provisions laid down in points 1.2 to 1.14 of that annex. As Article 7(2) of Regulation No 1612/68 is not covered by such transitional provisions, that provision applies with regard to those Czech nationals as from 1 May 2004 (see, by analogy, judgment of 27 September 1989, Lopes da Veiga, 9/88, EU:C:1989:346, paragraph 9).


As regards the first scenario considered in point 104 of this Opinion, that is to say, where the European Union is bound by international agreements that it has concluded pursuant to the provisions of the Treaty, it should be noted that the arbitration award at issue was made by an international tribunal set up pursuant to a bilateral arbitration agreement. It is common ground that the European Union was not a party either to the arbitration agreement or in the arbitration proceedings in which that award was made. The European Union offered its good offices to the parties   and signed the agreement in question only as a ‘witness’. Under Article 4(a) and (b) of the arbitration agreement, the arbitral tribunal is to apply the rules and principles of international law as well as fairness and the principle of good neighbourly relations. In accordance with Article 8 of that agreement, the <mask> negotiations were not to affect the work of the arbitral tribunal, which was to continue in accordance with Article 9. The agreement, of which the European Union took note by a document of 25 September 2009,   therefore does not provide for the application of EU law. It is therefore apparent that the arbitration award at issue is a decision made by an arbitral tribunal set up pursuant to a bilateral arbitration agreement and applies, in particular, international law.


Council Decision of 27 November 1997 with a view to <mask> by the European Community to the Agreement of the United Nations Economic Commission for Europe concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted to and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions (‘Revised 1958 Agreement’) (OJ 1997 L 346, p. 78).


‘Whereas the nitrate content of water in some areas of Member States is increasing and is already high as compared with standards laid down in Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States [(OJ 1975 L 194, p. 26)], as amended by [Council] Directive 79/869/EEC [of 9 October 1979 (OJ 1979 L 271, p. 44)], and Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption [(OJ 1980 L 229, p. 11)], as amended by the 1985 Act of <mask>;


In that regard, Article 2 of the Act concerning the conditions of <mask> of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21) stipulates that the provisions of the original treaties and the acts adopted by the institutions before the accession of the Republic of Croatia are binding on that Member State and are to apply in that State only from the date of its accession, namely 1 July 2013.


That interpretation is, furthermore, borne out by the Commission’s answer to the questions put by the Court on 28 June 2019, in which it states that the ‘wording of the footnotes [to points 8 and 10 of Annex I to Regulation No 1380/2013], which reflects the contents of the Act of <mask>, provides that the regimes governing access to the coastal waters of each State will apply only from full implementation of the arbitration award resulting from the arbitration agreement …’. The Commission adds that the wording of that provision can be understood as meaning ‘that the drafters of the provision did not intend the access provisions to apply with immediate effect or automatically from a given date’.


33. According to the second subparagraph of Article 10(1) of Directive 93/13, the latter is applicable only to contracts concluded after 31 December 1994, the date by which the directive must have been transposed into national law. The Court has concluded from this that the only relevant factor for the applicability ratione temporis of the provisions of Directive 93/13 to a consumer contract is the date of the conclusion of that contract, and the period during which the contract produced effects is not relevant. (15) Accordingly, with regard to Member States which did not accede to the EU until after 31 December 1994, and in respect of which Directive 93/13 became binding only upon their <mask>, that directive applies only to contracts concluded after the date of accession of the Member State concerned. (16)


In the main proceedings, it is apparent from the request for a preliminary ruling that, as at the date of the Republic of Poland’s <mask> to the European Union, Article 88(1)(4) of the Law on VAT excluded input tax paid on the purchase of overnight accommodation and catering services from the right to deduct VAT, with the exception, in particular, of the purchase of those types of service, referred to in Article 88(1)(4)(a) of the Law on VAT, namely those used by taxable persons who at a further stage provide tourism services.


73. It is clear from Kauer that, in such conditions, the determination of the Appellant’s pension entitlement, even on the basis of periods of insurance completed before Austria’s <mask>, has to be carried out by the Austrian authorities in accordance with EU law and, in particular, in accordance with the provisions of the Treaty relating to the free movement of workers or the freedom of every EU citizen to move and reside in the territory of the Member States. (38) The case in the main proceedings does not concern the recognition of rights allegedly acquired under EU law before Austria’s accession, but rather the question of whether the PVA’s refusal, in December 2017, to take into account the disputed child-raising periods occurred in breach of the EU rules which had, at that time, become binding upon Austria. (39)


First, it argues that the right to compensation for the non-material damage suffered by the applicants in the main proceedings arose on the date on which the accident at work in question occurred, namely 16 October 2003, and therefore before the <mask> of the Slovak Republic to the European Union on 1 May 2004. Secondly, the judgments awarding compensation, which were delivered in 2012 and 2013, are, in the present case, declaratory and do not create rights. Those decisions therefore do not create a new legal relationship, but only confer legal protection on a right which already existed before accession.


The referring court notes that Article 86(1) of the Law on VAT reflects the principle of the right to deduct input VAT, provided for in Article 168(a) of the VAT Directive. It also points out that the prohibition of the right to deduct in the case of overnight accommodation and catering services, laid down in Article 88(1)(4) of the Law on VAT was, prior to the Republic of Poland’s <mask> to the European Union on 1 May 2004 until 1 December 2008, a straightforward repetition of the wording of Article 25(1)(3b) of the Law of 8 January 1993 on VAT and on excise duty and was based on the standstill clause in the second subparagraph of Article 17(6) of the Sixth Directive (reproduced in the second paragraph of Article 176 of the VAT Directive).


Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the Convention of <mask> of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and – amended text – p. 77), the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) to that convention (‘the Brussels Convention’).


197 Thus, the need arising from that case-law of the Curtea Constituțională (Constitutional Court) to re-examine the corruption cases concerned necessarily has the effect of prolonging the duration of the corresponding criminal proceedings. In addition, aside from the fact that Romania had committed, as is clear from point I(5) of Annex IX to the Act of <mask>, to ‘revise the protracted criminal procedure by the end of 2005 to ensure that corruption cases are dealt with in a swift and transparent manner, in order to guarantee adequate sanctions that have a deterrent effect’, the Court has held that, in view of Romania’s specific obligations under Decision 2006/928 in relation to the fight against corruption, the related national rules and practice cannot result in the duration of investigations into corruption offences being extended or the fight against corruption being in any way weakened (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 214).


These laws and their subsequent amendments were closely monitored under the MCV after <mask>. On the basis of these laws and their subsequent amendments, the Commission periodically reported on Romania’s progress with regard to the independence and efficient functioning of the judiciary, as well as progress made in fighting corruption. This progress led the Commission to establish some final recommendations in its MCV Report of 2017, which could have led to the bringing to an end of the MCV.   However, the progress was reversed in the period from 2017 to 2018, when the Justice Laws were all amended by different laws,   adopted by way of an accelerated procedure by the Parliament, which entailed limited debate in the two chambers of Parliament.   These laws were adopted amidst great political controversy and public protests.   Subsequently, between September 2018 and March 2019, the Romanian Government adopted five emergency ordinances that amended and added new provisions to the Justice Laws.


The Oberster Gerichtshof (Supreme Court) is not concerned by the fact that the contested conduct occurred in part prior to Austria’s <mask> to the European Union on 1 January 1995.   However, by its written observations, the Province of Upper Austria comments extensively on the question of the jurisdiction of the Court of Justice to interpret the national rules that regulated the prohibition on anticompetitive agreements, decisions and concerted practices prior to Austria’s accession to the European Union.


The Court has also pointed out that it is for the national courts to determine the content of the national legislation at the date of <mask> of a new Member State to the European Union and to establish whether the effect of that legislation was to extend, after that accession, the scope of existing exclusions (see, to that effect, judgment of 18 July 2013, AES-3C Maritza East 1, C‑124/12, EU:C:2013:488, paragraph 41 and the case-law cited).


Treaty between the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Republic of Bulgaria and Romania, concerning the <mask> of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11).


A connection with the accused person’s functions under EU law is also ruled out in so far as the acts are alleged to have been committed in the period before 1 January 2014 – the day of Latvia’s <mask> to the euro zone. This is because, during that time, the accused person was only a member of the General Council of the ECB, which only has a monetary-policy mandate.   An internal connection of the described allegations with monetary-policy measures is, however, not apparent.


As a preliminary point, it should be recalled that in so far as Regulation No 1215/2012 repeals and replaces Regulation No 44/2001, which itself replaced the Convention of 27 September 1968 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended by successive conventions on the <mask> of new Member States to that convention (‘the 1968 Brussels Convention’), the Court’s interpretation of the provisions of the latter legal instruments also applies to Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’ (judgment of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 23 and the case-law cited).


The first paragraph of Article 351 TFEU must be interpreted as allowing a court of a Member State to apply a convention concluded between a Member State of the European Union and a non-member State before 1 January 1958 or, for States acceding to the European Union, before the date of their <mask>, such as the Convention between Switzerland and Germany concerning the Reciprocal Protection of Patents, Designs and Trademarks, signed in Berlin on 13 April 1892, as amended, which provides that the use of a trade mark registered in that Member State in the territory of the non-member State must be taken into consideration in order to determine whether that mark has been put to ‘genuine use’ within the meaning of Article 12(1) of Directive 2008/95, until such time as one of the steps referred to in the second paragraph of Article 351 TFEU makes it possible to eliminate any incompatibilities between the TFEU and that convention.


The Unfair Commercial Practices Directive is intended to establish uniform rules on unfair business-to-consumer commercial practices in order to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection.   It applies to such unfair practices arising before, during and after a commercial transition is rendered.   In that context, it appears undisputed that, in consenting to <mask> to the unit-linked group life assurance contract in the main proceedings, the defendants and the applicants in the main proceedings engaged in ‘commercial practices’ within the meaning of Article 2(d) of the directive.


Second, the General Court stated, in paragraphs 106 to 108 of the judgment under appeal, that the compensation at issue covered a period predating <mask>, during which EU law was not applicable, and that the applicants could, for that period, therefore rely on the Asteris and Others   case-law. However, in the decision at issue the Commission did not draw a distinction between the periods before and after accession. It follows that the decision at issue is vitiated by illegality, in that the award of compensation is classified in that decision as an ‘advantage’, at least with respect to the period predating accession.


Second, from the point of view of the content of the measures that may be taken on the basis of those provisions, it appears from the wording of both Articles 37 and 38 of the Act of <mask> that the term ‘measures’ is sufficiently broad so as to encompass an act such as the MCV Decision. Neither of the provisions contain an exhaustive list of the kind of measures that may be taken on their basis. The only measure expressly mentioned is the suspension of mutual recognition under Article 38 of the Act of Accession. Thus, Articles 37 and 38 of the Act of Accession simply set negative limits with which the measures must comply — the measures must respect the principle of proportionality and must not be discriminatory.


It follows that arbitration proceedings, such as those at issue in the present case, initiated on the basis of a BIT concluded between two Member States before the <mask> to the European Union of the State party to the arbitration, are not in my view capable of adversely affecting the autonomy of EU law, even after accession; therefore, unlike the situation with regard to the arbitration proceedings at issue in the case that gave rise to the judgment in Achmea, it cannot be concluded that there has been an infringement of Articles 267 and 344 TFEU.


3. By means of a notification deposited with the Secretary-General of the United Nations, any Contracting State may declare that it will not apply the criterion of publication or, alternatively, the criterion of fixation. Such notification may be deposited at the time of ratification, acceptance or <mask>, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.’


As a preliminary point, it should be noted that, in accordance with recital 34 of Regulation No 1215/2012, that regulation repeals and replaces Regulation No 44/2001, which itself replaced the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the successive conventions on the <mask> of new Member States to that convention. Consequently, the Court’s interpretation of the provisions of the latter legal instruments also applies to those of Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’. That is the case with point 3 of Article 5 of that convention and Regulation No 44/2001, on the one hand, and point 2 of Article 7 of Regulation No 1215/2012, on the other (see, to that effect, judgment of 9 July 2020, Verein für Konsumenteninformation, C‑343/19, EU:C:2020:534, paragraph 22).


Under Article 287 of that directive, Member States which acceded after 1 January 1978 may exempt taxable persons whose annual turnover is no higher than the equivalent in national currency of the respective amounts indicated for the Member States listed in that article. According to Implementing Decision 2011/335, the Republic of Lithuania, which introduced the Euro after that decision entered into force, is authorised, by way of derogation from Article 287(11) of the VAT Directive, ‘to exempt from VAT taxable persons whose annual turnover is no higher than the equivalent in national currency of EUR 45000 at the conversion rate on the day of its <mask> to the European Union’. That turnover is calculated by applying Article 288 of the directive.


Together with the declaration of <mask> to the group life assurance contract, the applicants in C‑213/20 also signed a written document containing information explaining that, during the assurance period, the value of the units in the fund could fluctuate significantly depending on the valuation of the financial instruments in which the fund invested. However, they were assured that, at the end of the 15-year contractual period, they would be paid out the totality of the value of the units of the investment fund.


The offer of <mask> to the group life assurance contract at issue was presented at a single meeting at the premises of the policyholder. The assurance product was presented to the applicants in C‑213/20 as a capital investment in the form of systematic savings. The oral presentation of the assurance product focused on the presentation of graphs relating to the potential returns from investing in an assurance investment fund. At the same meeting, the applicants in C‑213/20 were also provided with documents, namely the declaration of accession and the standard contractual clauses.


For the sake of completeness, it might be added that the PIF Convention appears to be applicable to Case C‑357/19 ratione temporis. The facts giving rise to the relevant convictions predate the entry into force of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29), which, according to its Article 16, replaced the PIF Convention and its Protocols as of 6 July 2019. Equally, by virtue of Council Decision of 6 December 2007 concerning the <mask> of Bulgaria and Romania to the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, the Protocol of 27 September 1996, the Protocol of 29 November 1996 and the Second Protocol of 19 June 1997 (OJ 2008 L 9, p. 23), that convention is applicable to Romania.


For that purpose, that Member State, in accordance with Article 4 of the Charter, which prohibits inhuman or degrading treatment or punishment, cannot restrict itself to taking into consideration solely the declarations of the requesting third State or the <mask>, by the latter State to international treaties guaranteeing, in principle, respect for fundamental rights. The competent authority of the requested Member State, such as the referring court, must rely, for the purposes of that verification, on information that is objective, reliable, specific and properly updated. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the European Court of Human Rights, judgments of courts of the requesting third State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 55 to 59 and the case-law cited).


According to recital 3 of Directive 2011/96, the objective of this directive is to exempt dividends and other profit distributions paid by subsidiary companies to their parent companies from withholding taxes and to eliminate double taxation of such income at the level of the parent company. It is therefore clear that Directive 2011/96 does not fall under any of the exemptions provided for in Articles 28 and 29 of the 1972 Act of <mask>. There is, moreover, no provision in Directive 2011/96 which excludes Gibraltar from its territorial scope.


As regards its formal legal basis, the MCV Decision was adopted as a safeguard measure on the basis of Articles 37 and 38 of the Act of <mask>. Article 4(3) of the Treaty of Accession empowers EU institutions to adopt the measures provided for, amongst others, in Articles 37 and 38 of the Act of Accession, before the accession of the Member States concerned. According to those provisions, known as ‘safeguard clauses’, those measures enter into force only subject to and on the date of the entry into force of the Treaty of Accession. Article 2(2) of the Treaty of Accession states that the provisions of that act form an integral part of that treaty.


(Appeal – State aid – Articles 107 and 108 TFEU – Bilateral Investment Treaty – Arbitration clause – Romania – <mask> to the European Union – Repeal of a tax incentives scheme prior to accession – Arbitral award granting payment of damages after accession – European Commission decision declaring that payment to be State aid incompatible with the internal market and ordering its recovery – Competence of the Commission – Application ratione temporis of EU law – Determination of the date at which the right to receive aid is conferred on the beneficiary – Article 19 TEU – Articles 267 and 344 TFEU – Autonomy of EU law)


Moreover, it was not the repeal of the tax incentives scheme at issue, but the infringement of the BIT by Romania that conferred on arbitration applicants the right to receive compensation the payment of which was classified by the decision at issue as constituting State aid. The arbitral tribunal could thus have definitively held Romania liable for that infringement before the <mask> of that State to the European Union. Neither the arbitration award nor the calculation of the exact amount of damages awarded is therefore relevant for the purposes of determining the date on which the right to receive State aid is conferred on its beneficiaries.


‘1. The provisions of the Schengen acquis as referred to in the Protocol on the Schengen acquis integrated into the framework of the European Union (hereinafter referred to as the ‘Schengen Protocol’), annexed to the TEU and the TFEU, and the acts building upon it or otherwise related to it, listed in Annex II, as well as any further such acts adopted before the date of <mask>, shall be binding on, and applicable in, Croatia from the date of accession.


188 In that context, it must be added that, as far as concerns Romania, the obligation to fight corruption affecting the European Union’s financial interests, which follows from Article 325(1) TFEU, is supplemented by the specific commitments accepted by Romania when <mask> negotiations were completed on 14 December 2004. In accordance with point I(4) of Annex IX to the Act of Accession, Romania committed inter alia to ‘considerably step up the fight against corruption and in particular against high-level corruption by ensuring a rigorous enforcement of the anti-corruption legislation’. That specific commitment was subsequently given concrete expression by the adoption of Decision 2006/298, which sets benchmarks for the purpose of addressing the shortcomings observed by the Commission prior to Romania’s accession to the European Union, in particular in the area of the fight against corruption. Thus, the annex to that decision, in which those benchmarks are set out, refers, in point 3 thereof, to the objective of ‘continu[ing] to conduct professional, non-partisan investigations into allegations of high-level corruption’, and, in point 4 thereof, to the objective of ‘tak[ing] further measures to prevent and fight against corruption, in particular within the local government’.


Consequently, Article 7(2) of Regulation No 492/2011 also benefits a worker, such as UB, who, without having moved from his or her place of residence, is, because of the <mask> to the European Union of the State of which he or she is a national and the State in whose territory he or she is resident, in the same situation as a migrant worker.


Article 2 of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the <mask> of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11; ‘the Treaty of Accession’), which was signed on 25 April 2005 and entered into force on 1 January 2007, provides in paragraphs 2 and 3 thereof:


As there is an essential continuity between the two sets of regulations, it was only to be expected that Regulation No 4/2009 would make provision for decisions in maintenance matters delivered in the Member States prior to the date of application of the latter regulation on 18 June 2011.   This, as we shall now see, is reflected in the transitional provisions contained in Article 75 of Regulation No 4/2009. The essential question remains, however, as to whether these provisions can be interpreted so as to reach back and to apply to decisions given by national courts prior to their <mask> as Member States of the Union. It is to this key question which we can now turn.


Consequently, decisions in matters relating to maintenance obligations, such as those at issue in the main proceedings, given in a State before its <mask> to the European Union and before the date of application of Regulation No 4/2009 cannot be recognised and enforced, after that State’s accession to the European Union, in another Member State pursuant to Article 75(3) of that regulation.


As explained above, the practices of the Austrian elevator cartel concerned by the main proceedings took place both before and after Austria’s <mask> to the European Union.   However, in terms of the jurisdiction of the Court of Justice to answer this request for a preliminary ruling, the question of whether the claims for damages brought by the Province of Upper Austria in the main proceedings are based on the effects produced by the elevator cartel before or after Austria’s accession to the EU is irrelevant.


76 Relatedly, the Court found, in respect of the EU’s <mask> to the Convention on the law of the sea of 10 December 1982 (UNCLOS) and the Declaration of Community Competence in the context of that accession, that it constitutes a useful reference base, but cannot be considered exhaustive. See judgment of 30 May 2006, Commission v Ireland (C‑459/03, EU:C:2006:345, paragraph 109). See also Govaere, I., ‘Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order’, in Hillion, C. and Koutrakos, P. (eds), Mixed Agreements Revisited: The EU and its Member States in the World, London, Hart Publishing, 2010, pp. 187-207, at p. 194.


The Council argues that the applicant is not individually concerned by the contested directive because, even accepting that that directive may have legal consequences for the applicant’s situation, it appears that the provisions of that directive apply to objectively determined legal situations and that they do not distinguish the applicant individually as in the case of the addressee of an individual decision. The contested directive applies to all gas transmission lines between a Member State and a third country, whether on-shore or off-shore, pre-existing, completed or new, or even transmission lines which, following the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, have become lines between a Member State and a third country, or lines that will be included in the scope of that directive due to the <mask> of new Member States to the European Union.


Now Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7) as amended by Council Directive 2013/17/EU of 13 May 2013 adapting certain directives in the field of environment, by reason of the <mask> of the Republic of Croatia (OJ 2013 L 158, p. 193).


Articles 37 and 38 of the Act of <mask> empower the Commission to take appropriate measures in the event of, respectively, imminent risk of serious breach of the functioning of the internal market linked to Romania’s failure to honour commitments undertaken in the context of the accession negotiations and imminent risk of serious shortcomings by Romania as regards compliance with EU law relating to the area of freedom, security and justice.


A further element emphasising the binding nature of the obligation to achieve the objectives set out in the MCV benchmarks, as pointed out by the Swedish Government, concerns the significant legal consequences attached to non-compliance. As noted in recital 7 of the MCV Decision, if the benchmarks are not achieved, the Commission states that it may apply further safeguard measures on the basis of Articles 37 and 38 of the Act of <mask>, including the suspension of mutual recognition. Furthermore, the specific legal consequences of a hypothetical infringement, which may arise from the particular MCV regime, do not in themselves prevent recourse to the ordinary enforcement instruments through infringement proceedings in the event of the non-fulfilment by Romania of its obligations under the MCV Decision.


While I acknowledge that, pursuant to the arrangement for Croatia’s <mask> to the European Union, its participation in the Schengen acquis is only partial (point 15 above),   Croatia participates in the Common European Asylum System. Not only is Croatia a participant in the Dublin III Regulation   (the consequences of which were considered by the Court in its ruling in A.S.  ) and the Eurodac Regulation,   it has implemented and regularly applies the Qualification Directive,   the Procedures Directive,   and the Reception Directive.   It is therefore bound by Article 80 TFEU, pursuant to which the implementation of Common European Asylum Policy ‘shall be governed by the principle of solidarity’.


The Commission may object, on the ground of serious doubts as to the compatibility with the [internal] market, to any aid measure granted in the pre-accession period between 1 September 2004 and the date fixed in the above Commission decision finding that the enforcement record has reached a satisfactory level. Such a Commission decision to object to a measure shall be regarded as a decision to initiate the formal investigation procedure within the meaning of Regulation (EC) No 659/1999.   If such a decision is taken before the date of <mask>, the decision will only come into effect upon the date of accession.


‘If there are serious shortcomings or any imminent risks of such shortcomings in Bulgaria or Romania in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, the Commission may, until the end of a period of up to three years after <mask>, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect.


I must make it clear, in that regard, in the interest of consistency, that the Commission’s competence to examine a measure resulting from compensation granted by means of an award made by an arbitral tribunal in the light of the law on State aid is a separate issue from that of the jurisdiction of the Romanian courts to make a reference to the Court for a preliminary ruling in the context of the dispute that led to the award of compensation. The fact that those courts lacked jurisdiction to do so does not in any way prejudge the Commission’s competence to assess the compensation granted after <mask> in the light of the law on State aid. As the Commission correctly observes, that competence is determined solely by the event giving rise to the aid, which takes place at the time when the right to receive the compensation is definitively recognised.


It is true that it follows from that provision that the granting of a residence permit to victims of domestic violence is not automatic and may be subject to conditions which are to be established, inter alia, by the legislatures of the Member States, in accordance with their national law   or, in the event of the European Union’s <mask> to that convention, the EU legislature. However, it is also clear from that provision that the national legislatures may not make the granting of such a residence permit subject to a condition based on the duration of the marriage or the relationship.


As follows from Article 2 of the Act concerning the conditions of <mask> of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded (OJ 2005 L 157, p. 203), the provisions of the original Treaties and the acts adopted by the institutions, in particular Directive 2003/88, are binding on the Republic of Bulgaria from the date of its accession, with the result that they apply to the future effects of situations arising prior to its accession (see, by analogy, judgment of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 42 and the case-law cited).


Investors can buy shares in the investment funds by sending a declaration of <mask> to TVP in the form of an offer to enter into a trust agreement. As appears from the order for reference, the investors at issue in the case in the main proceedings before the referring court all signed their application for subscription in Austria. The subscription monies were payable to the relevant investment fund fiduciary account in TVP’s name at an Austrian bank. In no case were subscription monies transferred to a German fiduciary account.


As regards EU law, Gibraltar is a European territory for whose external relations a Member State is responsible within the meaning of Article 355(3) TFEU and to which the provisions of the Treaties apply. The Act concerning the Conditions of <mask> of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the Adjustments to the Treaties   (‘the 1972 Act of Accession’) provides, however, that certain parts of the Treaty are not to apply to Gibraltar.


In February 2000 the negotiations for the <mask> of Romania to the European Union started. In those negotiations the European Union noted, in the common position of 21 November 2001, that in Romania there were ‘a number of existing as well as new incompatible aid schemes which [had] not been brought into line with the acquis’, including ‘facilities provided under [the tax incentives scheme at issue]’.


As regards, in particular, those benchmarks, it should be added that they were defined, as is apparent from paragraphs 158 to 162 above, on the basis of the deficiencies established by the Commission before Romania’s <mask> to the European Union in the areas of, inter alia, judicial reforms and the fight against corruption, and that they seek to ensure that that Member State complies with the value of the rule of law set out in Article 2 TEU, which is condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State.


By the judgment under appeal, the General Court upheld the first part of the first plea raised in Case T‑704/15 and the first part of the second plea raised in Cases T‑624/15 and T‑694/15 alleging, first, the Commission’s lack of competence to adopt the decision at issue under Article 108 TFEU and, secondly, the absence of advantage, within the meaning of Article 107(1) TFEU, conferred by the payment of damages in that, in particular, the purported advantage was granted before Romania’s <mask> to the European Union. It held, in essence, in paragraphs 59 to 93 of that judgment that, by adopting the decision at issue, the Commission had retroactively applied the powers which it held under Article 108 TFEU and Regulation No 659/1999 to events predating Romania’s accession and that the Commission could not therefore classify the measure at issue, namely – according to that decision – the payment of compensation awarded by the arbitral tribunal by way of compensation for the damage that the arbitration applicants allegedly suffered due to the repeal by that State of the tax incentives scheme at issue, as ‘State aid’ within the meaning of Article 107(1) TFEU.


It follows, however, from my answer to the first question asked by the referring court that Article 75(2) of Regulation No 4/2009 cannot be applied to decisions which were given in States which were not yet members of the EU at the time those decisions were given. If this interpretation of Article 75(2) of Regulation No 4/2009 is correct, it might be thought somewhat improbable that the ancillary provisions of Article 75(3) of Regulation No 4/2009 would have the indirect effect of facilitating the recognition and enforcement of a decision made by a court of a State before its <mask> to the Union. I have come to the conclusion that this provision cannot be interpreted in this sense either. I take this view for the following reasons.


I shall begin my analysis by examining the cross-appeal relating to the compatibility with EU law of arbitration proceedings based on an intra-EU BIT, which, should it be upheld, would render the action at first instance inadmissible. As I am of the view that the pleas put forward in support of the cross-appeal should be rejected, I shall continue my analysis by examining the main appeal, which deals with the question of the Commission’s competence in the law on State aid in the context of the <mask> of a State to the European Union.


In accordance with the principle of mutual trust and in line with the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters,   as amended by subsequent conventions relating to the <mask> of new Member States to that convention,   Regulation No 44/2001, which applies in the present case,   is intended to make the recognition and enforcement of judgments simpler and more rapid. That instrument of secondary legislation simplifies the formalities, so that judgments delivered in one Member State are recognised automatically, without any special procedure being required, and the procedure for making a decision delivered in one Member State enforceable in another Member State is efficient and rapid.


precluding legislation of a Member State implementing the procedure for the exchange of information on request established by Council Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 2014, which prevents a person holding information from bringing an action against a decision by which the competent authority of that Member State orders that person to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, and as


‘This Directive shall apply to the road transport sector from the date of application of a legislative act amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU [of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System (“the IMI Regulation”) (OJ 2014 L 159, p. 11)] for posting drivers in the road transport sector.’


Article 1(1) and Article 5 of Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC, read in conjunction with Article 20(2) thereof, must be interpreted as meaning that where a request for exchange of information made by an authority of a requesting Member State designates the taxpayers to which it relates simply by reference to their status as shareholders and beneficial owners of a company, without those taxpayers having been identified by the requesting authority in advance, individually and by name, the request satisfies the identification requirements laid down in that provision.


The Mutual Assistance Directive governs only <mask> in the field of taxation, and not mutual assistance in criminal matters, like the Benelux Treaty, for instance. In substance, administrative assistance is confined to cooperation between the Member States with regard to the exchange of information, whereas, in the context of mutual assistance in criminal matters, specific investigative measures for obtaining evidence can be implemented.


(Reference for a preliminary ruling – Tax law – Directive 2011/16/EU – <mask> in the field of taxation – Article 1(1) – Article 5 – Article 20 – Request for information from the financial authority of another Member State – Information order made by the requested financial authority – Foreseeable relevance of the requested information – Group request for information – Identified or identifiable person – Minimum information – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy before a tribunal – Statement of reasons of the information order – Disclosure of minimum information)


Those barriers cannot be removed solely by relying on direct application of Articles 43 and 49 of the Treaty [now Articles 49 and 56 TFEU], since, on the one hand, addressing them on a case-by-case basis through infringement procedures against the Member States concerned would, especially following enlargement, be extremely complicated for national and Community institutions, and, on the other hand, the lifting of many barriers requires prior coordination of national legal schemes, including the setting up of <mask>. As the European Parliament and the Council have recognised, a Community legislative instrument makes it possible to achieve a genuine internal market for services.


229 Moreover, as the applicant points out, the application of that principle to non-self-governing territories can also be inferred from the international practice of the European Union, as is illustrated by the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 (OJ 1997 L 187, p. 3). Article 1(m) of Protocol 3 to that agreement concerning the definition of the concept of ‘originating products’ and methods of <mask> defines the ‘territories’ of the parties as follows: ‘“territories”, includes territorial waters’.


By its three questions, which must be considered together, the national court is asking, in essence, whether Article 10 of Regulation No 904/2010, read in the light of recital 25 thereof, must be interpreted as laying down time limits, which if not complied with may affect the lawfulness of the suspension of a tax audit provided for by the national law of the requesting Member State, pending the communication by the requested Member State of the information requested via the mechanism for <mask> established by that regulation.


As regards the question whether the national legislation at issue in the main proceedings does not go beyond what is necessary to achieve those objectives, it must be stated at the outset, as the European Commission has noted, that the information necessary for the establishment and supervision of a tax such as the TOB, which is levied on each stock exchange transaction, cannot be obtained by <mask> alone and by the automatic and compulsory exchange of information in the field of taxation provided for, in particular, by Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ 2011 L 64, p. 1), as amended by Council Directive 2014/107/EU of 9 December 2014 (OJ 2014 L 359, p. 1).


This Directive establishes a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity or profession and its system of regulation. That framework is based on a dynamic and selective approach consisting in the removal, as a matter of priority, of barriers which may be dismantled quickly and, for the others, the launching of a process of evaluation, consultation and complementary harmonisation of specific issues, which will make possible the progressive and coordinated modernisation of national regulatory systems for service activities which is vital in order to achieve a genuine internal market for services by 2010. Provision should be made for a balanced mix of measures involving targeted harmonisation, <mask>, the provision on the freedom to provide services and encouragement of the development of codes of conduct on certain issues. That coordination of national legislative regimes should ensure a high degree of Community legal integration and a high level of protection of general interest objectives, especially protection of consumers, which is vital in order to establish trust between Member States. This Directive also takes into account other general interest objectives, including the protection of the environment, public security and public health as well as the need to comply with labour law.


(Reference for a preliminary ruling — Tax law — Directive 2011/16/EU — <mask> in the field of taxation — Article 1(1) — Article 5 — Requests for information from the tax authorities of another Member State — Information order issued by the requested tax authority — Foreseeable relevance of the requested information — Charter of Fundamental Rights of the European Union — Articles 7 and 8 — Article 47 — Right to an effective remedy before a tribunal — Exclusion of legal remedies for the person responsible for providing information, the taxpayer concerned by the information and other third parties concerned by the information)


Article 10 of Council Regulation (EU) No 904/2010 of 7 October 2010 on <mask> and combating fraud in the field of value added tax, read in the light of recital 25 thereof, must be interpreted as not laying down time limits, the non-compliance with which is liable to affect the lawfulness of the suspension of a tax audit provided for by the law of the requesting Member State pending the communication, by the requested Member State, of the information requested under the administrative cooperation mechanism established by that regulation.


This request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administration and Labour Court, Hungary) concerns the interpretation of various provisions of Directive 2006/112/EC (‘the VAT Directive’)   and Regulation (EU) No 904/2010 (‘the VAT Anti-Fraud Regulation’).   When are goods properly to be classified as having been ‘dispatched or transported by or on behalf of the supplier’ within the meaning of Article 33 of the VAT Directive? When is a trader’s established practice under that provision to be regarded as abusive? And what, in this context, is the <mask> required of tax authorities in different Member States in determining where taxable transactions are carried out, so as to avoid double taxation, under Articles 7, 13 and 28 to 30 of the VAT Anti-Fraud Regulation?


Council Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC (OJ 2011 L 64, p. 1) has been amended by Council Directive (EU) 2018/822 of 25 May 2018 (OJ 2018 L 139, p. 1). The provisions by which the Member States comply with this amendment have to be applied as from 1 July 2020.


The Court must now clarify whether an information order under Directive 2011/16 already constitutes an interference with the fundamental rights of the party required to provide the information, the taxpayer and other third parties concerned, against which an effective remedy must be allowed under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Moreover, the question arises as to how specific and precise the request must be in relation to the persons concerned in order to allow the requested tax authority to assess the ‘foreseeable relevance’ of the requested information to the tax proceedings in the other Member State. Only ‘foreseeably relevant’ information can be the subject matter of the <mask> under Directive 2011/16.


86. Fourth , and most importantly, the Member States’ obligation to make an effective remedy available in the present case may actually be conducive to the correct and effective application of the rules contained in the Dublin III Regulation and the Implementing Regulation. It is clear that the ‘responsibility criteria’ and the whole host of other substantive, procedural and evidentiary rules listed in both those instruments (91)to protect unaccompanied minors would become, to some extent, pointless and/or deprived of their practical effect if the Member States’ authorities, when assessing take charge requests, were to have an unfettered discretion in applying them and escaped judicial control in all cases except those where the minor is to be transferred to a different Member State (cases which are covered by Article 27(1) of the Dublin III Regulation). Overall, the objective of ensuring that the determination of the Member State responsible is made pursuant to ‘objective, fair criteria’ (92)could be undermined; disparities in the application of those rules and criteria could jeopardise the smooth functioning of the Dublin III Regulation, which rests on the principles of <mask>, (93)solidarity (94) and mutual trust, (95)and a ‘deadlock’ situation may even result from irreconcilable differences between Member States, which the conciliation procedure in Article 37(2) of that regulation may not be able to dispel. (96) At the extreme end of the spectrum, a Member State could – if it wanted – systematically refuse any take charge request that is addressed to it. (97)


The requirement of proportionality of penalties laid down in Article 20 of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System is directly effective.


This request for a preliminary ruling concerns the interpretation of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), in particular Article 33 thereof, and Articles 7, 13 and 28 to 30 of Council Regulation (EU) No 904/2010 of 7 October 2010 on <mask> and combating fraud in the field of value added tax (OJ 2010 L 268, p. 1).


In that regard, I will propose that the Court hold that those provisions do not preclude, for purposes of <mask>, a Member State from providing in its national law that an installation is delimited in the same way in each of the permits that its operator may be granted for greenhouse gas emissions, on the one hand, and pollution,   on the other hand. It does, however, follow from those same provisions, read in conjunction with Article 3(b) of the directive, that auxiliary units can be taken into account, inter alia, for the preliminary free allocation of emission allowances only if, whilst being directly associated with the activity of the main installation and having a technical connection with it, their activity could have an effect on greenhouse gas emissions.


Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a decision by which an authority requested to provide assistance pursuant to Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/99/EEC requires a person to provide information concerning a taxpayer or third party may be challenged by that person, the taxpayer and third parties concerned before the courts of the requested Member State.


This Directive builds on the achievements of [Council] Directive 77/799/EEC [of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15)] but provides for clearer and more precise rules governing <mask> between Member States where necessary, in order to establish, especially as regards the exchange of information, a wider scope of administrative cooperation between Member States. Clearer rules should also make it possible in particular to cover all legal and natural persons in the Union, taking into account the ever-increasing range of legal arrangements, including not only traditional arrangements such as trusts, foundations and investment funds, but any new instrument which may be set up by taxpayers in the Member States.


58 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 20 of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System (‘the IMI Regulation’), in so far as it requires the penalties provided for therein to be proportionate, has direct effect and may thus be relied on by individuals before national courts against a Member State which has transposed it incorrectly.


Having regard to all the foregoing considerations, the answer to the questions referred is that Article 10 of Regulation No 904/2010, read in the light of recital 25 thereof, must be interpreted as not laying down time limits, the non-compliance with which is liable to affect the lawfulness of the suspension of a tax audit provided for by the law of the requesting Member State pending the communication, by the requested Member State, of the information requested under the <mask> mechanism established by that regulation.


105. In my view, that must be so for two reasons. First, in adopting the Dublin III Regulation, the EU legislature has stressed the importance of <mask> (113) and appears to have been in favour of creating a ‘one stop’ mechanism, which permits asylum seekers to deal with the authorities of a single Member State and to complete all the administrative formalities in a single place. Secondly, it seems to me that, in the present case, that obligation would spare an unaccompanied minor, such as the applicant, the trouble of having to deal with the competent authorities of both the requesting and the requested Member State (each operating according to different rules) at least up until he or she decides to exercise his or her right to an effective remedy. Overall, he or she would therefore benefit from greater protection, in line with the objectives of the Dublin system. (114)


These requests for a preliminary ruling concern the interpretation, on the one hand, of Articles 7, 8 and 47 and Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, on the other, Article 1(1) and Article 5 of Council Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC (OJ 2011 L 64, p. 1), as amended by Council Directive 2014/107/EU of 9 December 2014 (OJ 2014 L 359, p. 1) (‘Directive 2011/16’).


(Reference for a preliminary ruling – <mask> and combating fraud in the field of value added tax (VAT) – Regulation (EU) No 904/2010 – Articles 10 to 12 – Exchange of information – Tax audit – Time limits – Suspension of the tax audit in case of exchange of information – Non-compliance with the time limits laid down for providing information – Effect on the lawfulness of the suspension of the tax audit)


To that end, that directive states, in recital 7, that it builds on the achievements of Directive 77/799 by providing for clearer and more precise rules governing <mask> between Member States where necessary, in order to broaden the scope of such cooperation (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 47). In particular, it is apparent from that recital that those rules should make it possible in particular to cover all legal and natural persons in the European Union, taking into account the ever-increasing range of legal arrangements which may be set up by taxpayers in the Member States.


5 Article 9(1) of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71 and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System (‘the IMI Regulation’) (OJ 2014 L 159, p. 11) states: ‘Member States may only impose administrative requirements and control measures necessary in order to ensure effective monitoring of compliance with the obligations set out in this Directive and Directive [96/71], provided that these are justified and proportionate in accordance with Union law. For these purposes Member States may in particular impose the following measures: … (b) an obligation to keep or make available … payslips, time-sheets indicating the beginning, end and duration of the daily working time and proof of payment of wages or copies of equivalent documents …; (c) an obligation to deliver the documents referred to under point (b), after the period of posting, at the request of the authorities of the host Member State, within a reasonable period of time; …’ Austrian legislation


Recital 44 of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System,   reads as follows: ‘Notwithstanding the establishment of more uniform rules with respect to the cross-border enforcement of administrative penalties and/or fines and the need for more common criteria to make follow-up procedures more effective in the event of the non-payment, they should not affect the Member States’ competences to determine their system of penalties, sanctions and fines or the recovery measures available under their national law. Therefore, the instrument permitting enforcement or execution of such penalties and/or fines may, if appropriate, and taking into account national law and/or practice in the requested Member State, be completed, or be accompanied or replaced by a title permitting its enforcement or execution in the requested Member State.’


Compare the Commission Proposal for a Directive of the European Parliament and of the Council amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation on <mask> through the Internal Market Information System (COM(2011) 883 final) and amendment 34 in the Draft Report of the Committee on the Internal Market and Consumer Protection of 16 July 2012 on Proposal for a Directive of the European Parliament and of the Council amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation on administrative cooperation through the Internal Market Information System (2011/0435 (COD)).


Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15), since repealed by Council Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC (OJ 2011 L 64, p. 1); See, to that effect, for instance, pending Cases C‑245/19, State of the Grand Duchy of Luxembourg and C‑246/19, State of the Grand Duchy of Luxembourg.


Directive 2014/67 also contains provisions to improve <mask> between the national authorities with competence in matters related to the posting of workers. The directive governs the control measures to be applied by the Member States when they monitor compliance with the working conditions of posted workers. The directive further provides that appropriate and effective checks and monitoring mechanisms must be put in place, and that there must be inspections by national authorities in order to monitor compliance with Directive 96/71.


1 This request for a preliminary ruling concerns the interpretation of Article 20 of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System (‘the IMI Regulation’) (OJ 2014 L 159, p. 11).


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 <mask> through the Internal Market 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 January 2000, following a check carried out by the Ufficio Tecnico di Finanza di Reggio Emilia (Technical Finance Office, Reggio Emilia, Italy) in the context of the <mask> procedure provided for in Article 19 of Directive 92/12, it was established that the accompanying administrative documents (‘the AADs’) relating to the consignments of alcohol dispatched by Silcompa had never been received by the Greek customs authority in order for the official documents to be drawn up and that the stamps of the Corinthian customs office (Greece) on the AADs, found at Silcompa’s premises, were false. As a result, the Agency issued three payment notices for the recovery of the unpaid excise duties, for a total amount of EUR 6296 495.47.


‘The Member State of refund may require the applicant to provide a description of his business activity by using the harmonised codes determined in accordance with the second subparagraph of Article 34a(3) of Council Regulation (EC) No 1798/2003 [of 7 October 2003 on <mask> in the field of value added tax and repealing Regulation (EEC) No 218/92 (OJ 2003 L 264, p. 1)].’


Second, on the one hand, the Convention on Mutual Administrative Assistance in Tax Matters, developed jointly by the Organisation for Economic Cooperation and Development (OECD) and the Council of Europe in 1988 and amended by Protocol in 2010, has been extended to the territory of Gibraltar since 1 March 2014.   In that regard, I note that, according to the OECD’s peer review, the situation in Gibraltar is judged as being ‘largely compliant’.   On the other hand, and probably more importantly, Council Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC,   is applicable to Gibraltar since Article 2(4) of that directive states that it is applicable to all taxes of any kind levied within the territory to which the Treaties apply by virtue of Article 52 TEU, which refers to Article 355 TFEU.


106. Furthermore, the principle of <mask> necessarily entails, in my view, that, if an appeal is made by an unaccompanied minor such as the applicant before the courts or tribunals of the requested Member State (here, the Netherlands) against a refusal to take charge adopted by the competent authorities of that Member State, those authorities must inform the authorities of the requesting Member State (here, Greece) that such an appeal has been lodged. (115)


3 Recital 6 of Directive 2006/123 states: ‘[Barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States] cannot be removed solely by relying on direct application of [Articles 49 and 56 TFEU], since, on the one hand, addressing them on a case-by-case basis through infringement procedures against the Member States concerned would, especially following enlargement, be extremely complicated for national and [EU] institutions, and, on the other hand, the lifting of many barriers requires prior coordination of national legal schemes, including the setting up of <mask>. As the European Parliament and the Council [of the European Union] have recognised, [an EU] legislative instrument makes it possible to achieve a genuine internal market for services.’


As regards the obligation to provide accommodation in a specialised detention facility, laid down in the first sentence of Article 16(1) of Directive 2008/115, the Court has held that compliance with that obligation is incumbent on the Member States as such, and not on the Member States according to their respective administrative or constitutional structures.   The judicial authorities responsible for detention must therefore be able to order detention in specialised detention facilities, if necessary, having recourse to any agreements providing for <mask> that may have been concluded for that purpose.


However, it must be stated that Regulation No 904/2010 is confined to enabling <mask> for the purposes of exchanging information that may be necessary for the tax authorities of the Member States. That regulation does not therefore govern the powers of those authorities to carry out, in the light of such information, the classification of the transactions concerned under Directive 2006/112 (see, by analogy, judgment of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraphs 62 and 63 and the case-law cited).


(Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 33 — Determination of where taxable transactions are carried out — Goods dispatched or transported by or on behalf of the supplier — Abusive practice — Regulation (EU) No 904/2010 — Articles 7, 13 and 28 to 30 — <mask> — Double taxation)


81. I therefore propose that the Court answer the questions referred by the Fővárosi Törvényszék (Budapest High Court, Hungary) as follows: 1. The recipient of the supply who is relevant for the purposes of determining the place of supply is to be determined from the perspective of the supplier on the basis of the underlying legal relationship, which establishes who must bear the expense for the supply received. An allegation of abuse of rights relating only to the recipient of the supply and a third party is irrelevant to the determination of the recipient of the supply and the place of supply. 2. Having regard to the Charter of Fundamental Rights of the European Union and the fundamental freedoms, the principle of neutrality of Council Directive 2006/112/EC of 28 November on the common system of value added tax and Council Regulation (EU) No 904/2010 of 7 October 2010 on <mask> and combating fraud in the field of value added tax preclude double taxation by several Member States in respect of VAT for one and the same transaction. If such double taxation is based on a different assessment of the facts and, the Member States do not agree on a solution, the national court may or must ask the Court for such a solution.


It is true that Directive 2011/16 lays down rules only for <mask> between Member States and therefore does not contain any rights for individuals. However, a person who may be the subject of administrative measures may rely on Article 47 of the Charter and defend his or her case before a tribunal in the context of the application of Directive 2011/16.


Article 1(1), Article 5 and Article 20(2) of Council Directive 2011/16/EU of 15 February 2011 on <mask> in the field of taxation and repealing Directive 77/799/EEC must be interpreted as meaning that a request for information must be regarded as relating to information which does not appear to be manifestly devoid of any foreseeable relevance, where the persons under examination or investigation within the meaning of that latter provision are not identified individually and by name by that request but the requesting authority provides a clear and sufficient explanation that it is conducting a targeted investigation into a limited group of persons, justified by reasonable suspicions of non-compliance with a specific legal obligation.


Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and Articles 7, 13 and 28 to 30 of Council Regulation (EU) No 904/2010 of 7 October 2010 on <mask> and combating fraud in the field of value added tax must be interpreted as not precluding the tax authorities of a Member State from being able, unilaterally, to subject transactions to value added tax treatment different from that under which they have already been taxed in another Member State.


(Reference for a preliminary ruling – <mask> in the field of taxation – Directive 2011/16/EU – Article 1(1), Article 5 and Article 20(2) – Request for information – Decision ordering that information be provided – Refusal to comply with the order – Penalty – ‘Foreseeable relevance’ of the requested information – Absence of identification of the taxpayers concerned individually and by name – Concept of ‘identity of the person under examination or investigation’ – Statement of reasons of the request for information – Scope – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy against the decision ordering that information be provided – Article 52(1) – Limitation – Respect for the essence of the right)


More than 20 years after its adoption, it has become necessary to assess whether Directive 96/71 … still strikes the right balance between the need to promote the freedom to provide services and ensure a level playing field on the one hand and the need to protect the rights of posted workers on the other. To ensure that the rules are applied uniformly and to bring about genuine social convergence, alongside the revision of Directive 96/71 …, priority should be given to the implementation and enforcement of Directive 2014/67/EU of the European Parliament and of the Council [of 15 May 2014 on the enforcement of Directive 96/71 and amending Regulation (EU) No 1024/2012 on <mask> through the Internal Market Information System (“the IMI Regulation”) (OJ 2014 L 159, p. 11)].


Therefore, a single Member State cannot manage its internal taxation system, especially as regards direct taxation, without receiving information from other Member States. In order to overcome the negative effects of this phenomenon, it is indispensable to develop new <mask> between the Member States’ tax administrations. There is a need for instruments likely to create confidence between Member States, by setting up the same rules, obligations and rights for all Member States.