As an interested party and in order to safeguard its procedural rights under Article 108(2) TFEU and Article 6(1) of Regulation No 659/1999, Tempus puts forward two pleas in law in support of its action, alleging (i) infringement of Article 108(2) TFEU, infringement of the principles of <mask>, proportionality and protection of legitimate expectations, as well as incorrect assessment of the facts, and (ii) a failure to state reasons.


Concerning the objectives pursued by the third condition referred to in Article 132(1)(b) of the VAT Directive, it seems clear that such an objective is to prevent private establishments from offering VAT-exempt services without having to bear the same social obligations of their public law counterparts. This is perhaps just another way of referring to the public service obligations of a social nature imposed on public hospitals and other medical establishments.   That condition therefore givesparticular expression to the principles of <mask> and of fiscal neutrality as between private bodies and public bodies, especially since, on the one hand, hospital and medical care and closely related activities undertaken by the latter are always exempted and, on the other hand, the former are not necessarily subject to the same social public service obligations.


In that regard, it should be noted that a finding that the principle of <mask> has been breached as a result of different situations being treated in the same way presupposes that the situations concerned are not comparable, having regard to all the elements which characterise them, and those elements are to be determined and assessed in the light of the subject matter and purpose of the EU act in question, taking into consideration, moreover, the principles and objectives of the field to which the act in question relates (see, to that effect, judgment of 18 June 2014, Spain v Commission, T‑260/11, EU:T:2014:555, paragraph 93).


It is not comprehensible why those regulations and guidelines are not applicable in the present instance, in the light of the principles of equal treatment and <mask>. That indeterminateness prevents the proportionality of the aid from being assessed correctly and, since the original budget cannot be determined, also does not allow compliance, if that budget increases, with the obligation to give fresh notification in accordance with Article 1(c) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9), read in conjunction with Article 4(1) of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1), under which a 20% increase in the original budget approved by the Commission results in an alteration to the aid. The General Court’s conclusion, in paragraph 361 of the judgment under appeal, that any grant of further State aid is not covered by the decision at issue is therefore incorrect.


Likewise, it follows from the Court’s case-law that a national of a Member State, who by virtue of that fact has Union citizenship, and who is lawfully residing in the territory of another Member State, falls within the scope of EU law. Accordingly, by virtue of having Union citizenship, a national of a Member State residing in another Member State is entitled to rely on Article 21(1) TFEU and falls within the scope of the Treaties, within the meaning of Article 18 TFEU, which sets out the principle of <mask> on grounds of nationality (judgment of 17 December 2020, Generalstaatsanwaltschaft Berlin (Extradition to Ukraine), C‑398/19, EU:C:2020:1032, paragraphs 29 and 30 and the case-law cited).


It follows from the foregoing considerations that the principle of <mask>, as provided for in Article 3(1) of Directive 2009/72, must be interpreted as not precluding national legislation establishing taxes on the production and storage of nuclear fuel and waste, such as the taxes on nuclear energy at issue in the cases in the main proceedings, which apply only to electricity-generating undertakings using nuclear energy and the main objective of which is not to protect the environment but to increase the amount of revenue for the electricity financial system.


In support of his action, the applicant relies on four pleas in law, alleging, first, infringement of the obligation to state reasons, secondly, infringement of the principles of proportionality and sound administration and of the rights of the defence, the right to be heard and Article 41 of the Charter, thirdly, infringement of the right to sound administration and, fourthly, infringement of Regulation No 1 and the principles of equal treatment and <mask>. The Court considers that it is appropriate to rearrange those pleas in order to examine in turn the complaints alleging, first, infringement of the obligation to state reasons, secondly, infringement of the right to be heard, of the rights of the defence and of Article 41 of the Charter, thirdly, infringement of the principles of sound administration and proportionality and, fourthly, infringement of the EU rules on the use of languages and of the principles of equal treatment and non-discrimination.


In the case in the main proceedings, it follows from the answer of the referring court to the request for information made by the Court that CG does not have sufficient resources. Accordingly, such a person is likely to become an unreasonable burden on the social assistance system of the United Kingdom and cannot therefore rely on the principle of <mask> laid down in Article 24(1) of Directive 2004/38.


Accordingly, where a given situation falls within the scope of the framework agreement, it is necessary to examine whether, in the light of the principle of <mask>, implemented and put into effect by Clause 4(1) of that framework agreement, the employment conditions of fixed-term workers are less favourable than those of comparable permanent workers. That clause provides that the only difference in treatment which is prohibited is the difference in treatment between fixed-term workers and comparable permanent workers, solely because they are employed for a fixed term, and only in respect of employment conditions, unless different treatment is justified on objective grounds.


In the third place, the referring court raises the question whether Law No 235/2012 is compatible with the requirement of transparency, the principle of <mask> and the principle of equality of access for EU electricity undertakings to national consumers, which are referred to in Article 3 of Directive 2009/72. In that regard, that court states that it is impossible to determine whether the special levy allows the objective pursued by Law No 235/2012 to be attained and whether its indefinite application is necessary to that end. Furthermore, that court raises the question whether that law disregards the principle of non-discrimination, in so far as domestic regulated entities are taxed on a broader base as compared with foreign regulated entities.


Do the principles of equal treatment and <mask> enshrined in Clause 4 of [the Framework Agreement] on employment conditions preclude the legal provisions of Article 1(2) and Article 10 of [Legislative Decree No 23/2015] which, with regard to collective redundancies that are unlawful due to non-compliance with the selection criteria, provide for a dual and differentiated system of protection whereby, in the same procedure, appropriate, effective and dissuasive protection is provided in respect of employment relationships of indefinite duration created prior to 7 March 2015 – for which reinstatement and the payment of employer’s contributions are envisaged as possible remedies – yet limited compensation only, between maximum and minimum amounts, is offered in respect of fixed-term employment relationships having the same length of service, in that they were created prior to that date but converted to an open-ended contract after 7 March 2015, which is a less effective and dissuasive form of protection?


In the light of the considerations set out in paragraphs 30 to 34 of the present judgment, the first paragraph of Article 18 TFEU can apply to that dispute only where (i) that dispute relates to a situation which falls within the scope of application of EU law and (ii) that situation does not fall within the scope of a specific rule on <mask> laid down by the FEU Treaty.


Under this heading, the Republic of Austria relies on two points First, it contends that the aid elements have ‘not been sufficiently determined’ in the decision at issue. In this context, the Republic of Austria argues that that failure amounts to an infringement of Commission Guidelines and Regulations concerning State aid rules that should have been applied in the present case according to the principles of equal treatment and <mask>. The Republic of Austria claims that the insufficient determination of aid elements in any case renders it impossible to carry out the correct proportionality assessment and that the aids in case of a shutdown will invariably lead to an over-compensation once they exceed an amount payable in case of an expropriation.


Thus, any discrimination he may have suffered in breach of Article 18 TFEU falls within the scope of application of the Treaties by virtue of Article 49 TFEU. The principle of <mask> on the basis of nationality in Article 18 TFEU is given specific expression with respect to freedom of establishment by Article 49 TFEU. The Court need only therefore, rule with respect to Article 49,   read together with Article 165 TFEU, given that Article 18 TFEU applies independently only to situations governed by EU law in respect of which the TFEU lays down no specific prohibitions on discrimination.   For reasons that I will further explain at points 97 to 110 below, the main proceedings do not present an occasion on which to consider taking the significant constitutional step of expanding its case-law on Article 21 TFEU and the component elements of European citizenship to the horizontal context of a dispute between private parties,   which would thereby oblige non-State actors to comply with them.


The Portuguese Government and the Regional Government of Navarre have doubts as to whether fixed-term contract staff are comparable to public officials as permanent workers. They rely on the Court’s judgment in Pérez López,   according to which any difference in treatment which is not based on the fixed-term or permanent nature of the employment relationship, but on whether it is statutory or contractual, is not covered by the principle of <mask> established by the Framework Agreement. However, this fails to acknowledge that the finding relates to ‘any difference in treatment between specific categories of fixed-term workers’. The present case concerns a difference in treatment between fixed-term contract staff and permanent public officials.


In so far as it allows a derogation from the principle of <mask>, Article 4(1) of Directive 2000/78, read in the light of recital 23 thereof, which refers to ‘very limited circumstances’ in which such a difference of treatment may be justified, must be interpreted strictly (judgment of 15 July 2021, Tartu Vangla, C‑795/19, EU:C:2021:606, paragraph 33 and the case-law cited).


It is not for this Opinion to provide an answer to this fundamental dispute.   Suffice it to say that, clearly, in a number of instances, ‘the market’ has failed in ‘horizontal’ situations between two private parties, which is why the EU legislature has begun to take action and has curtailed private autonomy.   A prime example in this area is the regulation of roaming charges in the EU.   Here, indeed, the EU legislature intervened in the relationship between individuals – who find themselves in an asymmetric relationship: phone companies on the one hand, consumers on the other – and directly applied classical internal market instruments such as the principle of <mask> to horizontal situations.


Is the principle of <mask> on grounds of ethnic origin in accordance with Article 21 of the [Charter] to be interpreted as precluding national legislation such as Paragraph 6(9) and (11) of the oöWFG, which allows EU citizens, EEA nationals and family members within the meaning of [Directive 2004/38] to receive a social benefit (housing assistance in accordance with the oöWFG) without proof of language proficiency, while requiring third-country nationals (including those with long-term resident status within the meaning of [Directive 2003/109]) to provide particular proof of a basic command of German?’


3 Recital 14 of Directive 1999/70 states: ‘The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of <mask>, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’. The framework agreement


‘Do the [EU] principles of the protection of legitimate expectations and legal certainty, together with the principles of the free movement of goods, the freedom of establishment and the freedom to provide services, laid down in the [FEU Treaty], as well as the principles deriving therefrom, such as equality of treatment, <mask>, mutual recognition, proportionality and transparency, referred to in Directive [2014/24], preclude the application of national legislation, such as the Italian legislation founded on the combined provisions of [Article 95(10) and Article 83(9) of the Code of Public Contracts], according to which the failure to list the labour costs separately in the financial tender in a procedure for the award of public services inevitably results in the exclusion of the tendering undertaking concerned without the possibility of supplementing or amending its tendering documentation [‘soccorso istruttorio’], even where the obligation to list those costs separately was not set out in the tender documents, and even though, in substantive terms, the tender in question actually took into account the minimum labour costs, in accordance, moreover, with a declaration for that purpose made by the tenderer?’


45 It is nevertheless for the Member State to ensure that any application for an operating permit is subject to the procedures and requirements imposed by Article 3 of Directive 94/22, without prejudice to the derogation provided for in paragraph 4 of that article, and that, in that connection, the requirements of transparency and <mask> are observed, since those principles are of particular importance for attaining the objective, pursued by the public procurement rules, of giving equal access to the market to all interested entities, as the Advocate General noted in point 51 of his Opinion.


EB also argues that, by not allowing researchers recruited on fixed-term contracts, who, like himself, have obtained the academic qualifications required for appointment to the post of ‘associate professor’, to undergo the assessment with a view to appointment to an associate professorship, Article 24(3) of Law No 240/2010 is contrary to the principle of <mask> set out in Clause 4 of the framework agreement.


In that regard, see Martin, D., ‘Article 24 – Égalité de traitement’, Directive 2004/38 relative au droit de séjour des citoyens de l’Union européenne et des membres de leur famille, Bruylant, Brussels, 2020, pp. 373-396, especially. p. 380, paragraph 16, where the author asks, ‘since the European legislature did not intend, in Article 24 of the directive, to place restrictions on the right to <mask> established in paragraph 1, other than those set out in paragraph 2, was the Court of Justice still entitled to interpret paragraph 1 as implicitly including a condition of integration?’


Secondly, assuming that it can be concluded that such members of the teaching staff are employed under a contract of indefinite duration, it is appropriate to examine whether they are ‘comparable’ permanent workers, within the meaning of Clause 4(1) of the framework agreement. In that regard, it is important to bear in mind that according to settled case-law the principle of <mask>, of which that provision is a specific expression, requires that comparable situations should not be treated differently and that different situations should not be treated alike, unless such treatment is objectively justified (judgment of 21 November 2018, de Diego Porras, C‑619/17, EU:C:2018:936, paragraph 60 and the case-law cited).


The first plea consists, in essence, of four parts, the first alleging that the aid scheme infringes the principle of <mask>, the second, that it is neither necessary nor proportionate to achieve the objective assigned to it, the third, that it restricts the freedom to provide services and the freedom of establishment, and the fourth, that the resulting restriction is unjustified.


In those circumstances, it must be held that the applicant has failed to show either that the Commission exceeded the limits of its discretion in setting the amount of the fines or that it infringed the principles of <mask> and equal treatment in setting the reference year for the determination of the amount of sales to be taken into account for the purpose of calculating the basic amount of the fines.


47. Having thus clarified, in the light of the Court’s case-law, the relationship between the general principles of equal treatment and <mask> and the objectives of Directive 2000/78 and the extent of the directive’s scope, it is necessary to conduct an analysis of a legal situation of the type at issue in the present case in order to determine whether it involves discrimination prohibited by that directive. D. Assessment of discrimination: comparison, identification of the disadvantage and (possible) justification


57. In that regard, the Republic of Austria notes that, while an amendment to Regulation No 883/2004 was indeed envisaged, that was not the case for Regulation No 492/2011. It infers from this that Article 7 of that regulation – like Article 4 of Regulation No 883/2004 – does not contain a principle of <mask> going beyond that which is enshrined in primary law.


By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2009/72 and, in particular, Article 3(1) to (3) and (10) thereof and the principle of <mask> must be interpreted as precluding national legislation that establishes a special levy on the revenue, with respect to activities performed both nationally and abroad, of undertakings operating, on the basis of an authorisation issued by a public authority, in various regulated activity sectors, including undertakings that hold an authorisation for supplying electricity issued by the competent national regulatory authority.


Is EU law, and in particular the right of establishment and freedom to provide services (Articles 49 et seq. and 56 et seq. TFEU), the [EU-law] principles of legal certainty, <mask>, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and – where deemed applicable – Articles 3 and 43 of Directive 2014/23/EU, to be interpreted as precluding a provision such as that contained in Article 20(1) of Decree-Law No 148 of 16 October 2017, which, under Article 21(3) and (4) of Decree-Law No 78 of 1 July 2009, converted with amendments by Law No 102 of 3 August 2009, provides that “the Customs and Monopolies Agency shall authorise the continuation of the existing concession for the collection, including by remote means, of national instant lottery receipts for the period envisaged in Article 4(1) of the concession contract, so as to guarantee additional and increased government revenue of EUR 50 million for 2017 and EUR 750 million for 2018”,taking into account that:


‘The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of <mask>, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.’


By both questions, the referring court invites the Court to clarify, in essence, what are the criteria under which the principle ne bis in idem, enshrined in Article 50 of the Charter, applies. Those questions are raised in the context of two sets of proceedings. The first, now concluded, concerned the sectoral regulation of postal services and a fine, which was later annulled, imposed on bpost by the IBPT for failure to respect the obligation of <mask> (‘sectoral proceedings’). The second set of proceedings concern competition law. In that case, a fine was imposed on bpost by the Belgian Competition Authority for an abuse of a dominant position (‘competition proceedings’).


Laboratory Caracciolo brought an appeal against that judgment before the referring court. It argued that conferring such competence on Accredia infringed Article 56 TFEU relating to the freedom to provide services and Article 102 TFEU concerning the principle of free competition, as well as the principles of equality and <mask>, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).


24 The referring court also raises the question of the interaction between Regulation No 883/2004 and Directive 2004/38 in the light of the case-law resulting from the judgment of 19 September 2013, Brey (C‑140/12, EU:C:2013:565). In that context, it seeks guidance on the interpretation of the principle of <mask>, as given specific expression in particular in Article 4 of that regulation and Article 24(1) of that directive. In its view, the difference in treatment between, on the one hand, an economically inactive Union citizen, such as A, and, on the other hand, Latvian nationals and Union citizens who are economically active could be disproportionate to the legitimate objective of protecting the public finances of the Republic of Latvia. It is necessary to determine whether, having regard to the individual circumstances characterising A’s particular situation, the Latvian authorities should have carried out an overall assessment of the burden which the grant to A of access to the system of medical care financed by the State would in fact represent for the national social assistance system as a whole. The fact that A has close personal links with Latvia could mean that it was not permissible to refuse him access automatically.


239 Lastly, the assessments of the Commission and the Council are subject to the procedural requirements specified in Article 6(1) to (9) of the contested regulation. Those requirements imply in particular, as stated in recital 26 of that regulation, that the Commission must follow an evidence-based approach and respect the principles of objectivity, <mask> and equal treatment of Member States before the Treaties when it conducts proceedings under that provision. As regards the identification and assessment of breaches of the principles of the rule of law, those requirements must be understood in the light of recital 16 of that regulation, according to which that assessment must be objective, impartial and fair.


(Reference for a preliminary ruling — Urgent preliminary ruling procedure — EEA Agreement — <mask> — Article 36 — Freedom to provide services — Scope — Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis — Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway — Extradition to a third State of an Icelandic national — Protection of a Member State’s nationals against extradition — No equivalent protection for nationals of another State — Icelandic national who was granted asylum under national law before acquiring Icelandic citizenship — Restriction of freedom of movement — Justification based on the prevention of impunity — Proportionality — Verification of the guarantees provided for in Article 19(2) of the Charter of Fundamental Rights of the European Union)


The freedom of the Member States as to the choice of the management method that they judge to be most appropriate for the performance of works or the provision of services cannot however be unlimited. That freedom must, on the contrary, be exercised with due regard to the fundamental rules of the FEU Treaty, in particular the free movement of goods, the freedom of establishment and the freedom to provide services as well as the principles deriving therefrom, such as equal treatment, <mask>, mutual recognition, proportionality and transparency (see, by analogy, judgments of 9 July 1987, CEI and Bellini, 27/86 to 29/86, EU:C:1987:355, paragraph 15; of 7 December 2000, Telaustria and Telefonadress, C‑324/98, EU:C:2000:669, paragraph 60; and of 10 September 2009, Sea, C‑573/07, EU:C:2009:532, paragraph 38).


LB also brought an administrative appeal against the decision of 4 December 2017. Following the dismissal of that action, LB brought an action before the Juzgado de lo Contencioso-Administrativo No 4 de Zaragoza (Administrative Court No 4, Zaragoza, Spain) seeking the annulment of both the decision of 4 December 2017 and the decision confirming that decision. In support of her action, LB claimed, in essence, that those decisions were, inter alia, contrary to the principles of equality and <mask>, as guaranteed by clause 4 of the framework agreement.


In that regard, it should be noted that, when it lays down rules relating to matters concerning the arrangements applicable to the staff it employs, the ECB enjoys broad autonomy on account of its functional independence (see, to that effect, judgment of 22 October 2002, Pflugradt v ECB, T‑178/00 and T‑341/00, EU:T:2002:253, paragraph 48). In addition, the institutions have broad discretion in determining what the interests of the service are, regardless of the examination in the context of which, or the decision for which, those interests are to be taken into account (see judgment of 16 May 2018, Barnett v EESC, T‑23/17, not published, EU:T:2018:271, paragraph 36 and the case-law cited). In such a case, the principle of <mask> or equal treatment would be disregarded only if the measure in question entailed a difference of treatment which was arbitrary or manifestly inappropriate in relation to the purpose of that measure (see, to that effect, judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 72).


The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of <mask>, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.


117. Second, according to Article 76(1) of that directive, even under the simplified regime, Member States must observe, inter alia, the principle of equality of economic operators. It should be recalled that Directive 2014/24 seeks to ensure freedom of establishment, as well as the principles stemming from the fundamental freedoms, such as equal treatment, <mask>, mutual recognition, proportionality and transparency. (108)


(Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2 and 3 – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Principle of <mask> – Measure taken by a university pursuant to national law – Retention of tenured lecturer status beyond the statutory retirement age – Possibility restricted to lecturers with doctoral supervisor status – Lecturers who do not have this status – Fixed-term employment contracts – Lower remuneration than for tenured lecturers)


By their sixteenth plea, the applicants argue that the decision of 17 July 2018 infringes the principle of equal treatment and <mask> in that it does not contain any comparative analysis between the situation of the second applicant, in terms of AML/CFT, and that of other comparable banks, either in Estonia or elsewhere. They assert that that decision does not contain any relevant information from the FSA in that regard and that the FSA chose to make an example of the second applicant, not because of the seriousness of its breaches, but because of its small size, its financial strength, which facilitated liquidation, and the fact that it was owned by foreigners, who would have found it more difficult to oppose the action taken.


‘Do the principles of freedom of establishment, <mask>, equal treatment, the protection of competition and freedom of movement for workers, referred to in Articles 45, 49 to 56 and 106 TFEU and in Articles 15 and 16 of the [Charter], and the requirements of proportionality and reasonableness inherent in those principles, preclude a provision of national law, such as Article 12(2) of Law No 362/1991, which, in the event of the transfer of ownership of a municipal pharmacy, confers a right of pre-emption on the employees of the pharmacy in question?’


37. As already indicated, it is apparent from the Court’s case-law that, in view of the wording of Article 13 EC (now Article 19 TFEU), from which Directive 2000/78 arises, the scope of the latter cannot be extended by analogy, including by reference to the general principle of <mask>, beyond the grounds of discrimination listed exhaustively in Article 1 of that directive. (13)


Regarding, more specifically, discrimination on grounds of age, it is apparent from the case-law of the Court that, where they adopt measures which fall within the scope of Directive 2000/78, which gives specific expression, in the domain of employment and occupation, to the principle of <mask> on grounds of age, Member States must respect the directive (judgment of 21 January 2015, Felber, C‑529/13, EU:C:2015:20, paragraph 16 and the case-law cited). Likewise, Member States must, when they adopt measures which fall within the scope of Directive 2006/54, which gives specific expression, in that domain, to the principle of non-discrimination on grounds of sex, respect that directive.


(Reference for a preliminary ruling – Citizenship of the Union – National of a Member State without an activity residing in the territory of another Member State on the basis of national law – The first paragraph of Article 18 TFEU – <mask> based on nationality – Directive 2004/38/EC – Article 7 – Conditions for obtaining a right of residence for more than three months – Article 24 – Social assistance – Concept – Equal treatment – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland – Transition period – National provision excluding Union citizens with a right of residence for a fixed period under national law from social assistance – Charter of Fundamental Rights of the European Union – Articles 1, 7 and 24)


136 As regards the condition laid down in Article 4(1) of the contested regulation relating to the existence of ‘breaches of the principles of the rule of law’, Article 2(a) of the contested regulation states that the concept of ‘the rule of law’ is to be understood, for the purposes of that regulation, as the ‘Union value enshrined in Article 2 TEU’ and that that concept includes the principles of legality, legal certainty, prohibition of arbitrariness of the executive powers, effective judicial protection, separation of powers and <mask> and equality before the law. That provision states, however, that the concept of ‘the rule of law’, as defined for the purposes of the application of the contested regulation, ‘shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU’. It follows that respect for those values and principles – in so far as they form part of the very definition of the value of ‘the rule of law’ contained in Article 2 TEU or, as is apparent from the second sentence of that article, are closely linked to a society that respects the rule of law – may be required in the context of a horizontal conditionality mechanism such as that established by the contested regulation.


14. In its application, the appellant argued that the stated objectives of the contested measure, namely to extend the application of the provisions of the Gas Directive to offshore import pipelines in order to improve the functioning of the internal market while allowing for derogation so as to protect existing investments, are not in fact its actual purpose. According to the appellant, the contested measure was adopted for the purposes of discouraging and placing at a disadvantage the exploitation of the Nord Stream 2 pipeline. As such, the lawfulness of that measure was, in the appellant’s view, vitiated by an infringement of the principles of <mask>, proportionality and legal certainty, by a breach of essential procedural requirements, by a misuse of power and by a failure to state reasons.


Do the provisions of [the VAT Directive] in particular Articles 167 and 168 thereof, and the principles of legal certainty, the protection of legitimate expectations, <mask> and tax neutrality preclude, in the case in which a planned investment is subsequently abandoned, a taxable person from forfeiting the right to deduct VAT in relation to certain investment expenditure which the latter incurred with the intention of allocating that expenditure for the purpose of carrying out of a taxable transaction?


As a preliminary observation, it should be noted that the purpose of Directive 2000/43, as stated in Article 1 thereof, is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. That directive gives specific expression, in its field of application, to the principle of <mask> on grounds of race and ethnic origin which is enshrined in Article 21 of the Charter (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 72 and the case-law cited).


Article 18 TFEU can be relied on ‘in all situations falling within the scope ratione materiae of EU law’. Among such ‘situations falling within the scope ratione materiae of EU law’, the Court has admitted in particular that ‘the situation of an EU citizen who has made use of his right to move freely comes within the scope of Article 18 TFEU, which lays down the principle of <mask> on grounds of nationality’.


100. In the light of the foregoing, I suggest that the Court declare the request for a preliminary ruling from the Úřad pro přístup k dopravní infrastruktuře (Transport infrastructure access authority, Czech Republic) inadmissible. In the alternative, I propose that the reply to that request should be as follows: 1. The ‘goods platforms’ referred to in Annex I to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, being spaces adjacent to the side of a train which are used exclusively for loading onto, and unloading from, the train on main lines or in sidings, are a component of the railway infrastructure. 2. The infrastructure manager may change the charges for use of railway infrastructure, provided that this is justified in accordance with Commission Implementing Regulation (EU) 2015/909 of 12 June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service, and in accordance with the decisions or forecasts of change contained in the network statement, except where it does so in an attempt to respond to extraordinary circumstances. Where necessary, the operator of the service facility may, while still complying with the contractual obligations entered into with the railway undertakings, change the charges for access to that facility and for the supply of services, on condition that the amended charge does not exceed the cost of providing the service, plus a reasonable profit, and is consistent with the principles of transparency and <mask>. 3. An infrastructure manager classified as a State body, whatever its legal form, is bound by the directly effective provisions of Directive 2012/34. 4. Any network statement that does not comply with Directive 2012/34 may be regarded as discriminatory if it introduces measures which, in themselves, afford to some undertakings treatment which is unjustified by comparison with that afforded to others.


“the rule of law” refers to the Union value enshrined in Article 2 TEU. It includes the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and <mask> and equality before the law. The rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU;


See, also, Opinion of Advocate General Kokott in Viejobueno Ibáñez and de la Vara González (C‑245/17, EU:C:2018:365, point 57): ‘… it is a circular argument to say that the two categories of employee in this case are not comparable because the employment relationship of established civil servants is permanent, when the lawfulness of the early termination of the employment relationship of teachers on fixed-term contracts is the very matter at issue. Otherwise, the comparability of fixed-term workers and established civil servants in relation to dismissal would always be precluded and fall outside the scope of the Framework Agreement. This, however, would run counter to the Court’s case-law, which expressly applies the principle of <mask> laid down in Clause 4(1) of the Framework Agreement to conditions of dismissal.’


In that regard, it is true that if it were to be considered that Capricorn was granted aid corresponding to the difference between the market price of the Nürburgring assets and the purchase price paid by Capricorn for those assets in the context of a tender process which did not meet the requirements of openness, transparency, unconditionality and <mask>, such aid would necessarily have been granted on 11 March 2014, which is the date on which those assets were awarded to Capricorn and on which the relevant sale contract was concluded.


56. In that connection, it is important to understand that, if the discretion recognised by Article 8 of Directive 2000/78 were limited only to the stage of justifying indirect discrimination, as the Court has already recognised in the judgment in WABE, and inapplicable to other elements that might influence the definition of the reference circle of persons for comparison purposes, Member States could be impeded from deciding on sensitive and legitimate aspects regarding religion and religious beliefs which, ultimately, determine the level of uniformity or diversity that they might wish to introduce – or maintain – in their societies. I do not think that the aim of Directive 2000/78, in laying down minimum requirements for the relevant rules on equal treatment in the fields of employment and occupation, is to prevent Member States making such choices. (a) The ethos underpinning <mask> on the grounds of religion and religious beliefs


If the answer is in the affirmative, is the unequal treatment between workers on fixed-term contracts and comparable permanent workers as regards compensation for termination of contract in cases where termination is prompted by the same factual circumstances but based on different legal grounds to be considered to constitute discrimination of the type prohibited in Article 21 of the [Charter], inasmuch as it is contrary to the principles of equal treatment and <mask> in Articles 20 and 21 of the Charter, which form part of the general principles of EU law?’


whenever universal service providers apply special tariffs, for example for services for businesses, bulk mailers or consolidators of mail from different users, they shall apply the principles of transparency and <mask> with regard both to the tariffs and to the associated conditions. The tariffs, together with the associated conditions, shall apply equally both as between different third parties and as between third parties and universal service providers supplying equivalent services. Any such tariffs shall also be available to users, in particular individual users and small and medium-sized enterprises, who post under similar conditions.’


Directive 2014/24 may also be applicable by virtue of a direct and unconditional reference by Portuguese law to the provisions of that directive. Similarly, public procurement procedures that do not fall within the scope of that directive are nonetheless subject to the fundamental rules and general principles flowing from the FEU Treaty, in particular, the principles of equal treatment and <mask> on grounds of nationality and the resulting obligation of transparency, provided that such contracts are of certain cross-border interest (see, to that effect, order of 7 July 2016, Sá Machado & Filhos, C‑214/15, not published, EU:C:2016:548, paragraphs 33, 35 and 37). In that regard, the referring court may not merely submit to the Court evidence showing that certain cross-border interest cannot be ruled out but must, on the contrary, provide information capable of proving that it exists (judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 22).


‘Do Article 5(1), in particular subparagraphs (a) and (f), of Delegated Regulation 2015/63, interpreted in the light of the principles referred to in that regulation, in Directive 2014/59, Regulation No 806/2014 and Article 120 TFEU, the fundamental rules of equal treatment, <mask> and proportionality laid down in Article 21 of the Charter of Fundamental Rights of the European Union, and the prohibition on levying double contributions, preclude, for the purpose of calculating the contributions that are the subject of Article 103(2) of Directive 2014/59, the rules laid down for intragroup liabilities from also applying in the case of a ‘de facto’ group or, in any event, in the case of interconnectedness between an institution and other banks forming part of the same system?


60. It will not be necessary to analyse the Italian legislation in the light of Article 18 TFEU because this applies only in the event that there are no more specific provisions that reflect the principle of <mask>. (31) This is [not] the case in the context of the free movement of goods (which includes electricity imports), since Articles 30, 34 and 110 TFEU refer specifically to the principle of non-discrimination, which Article 18 TFEU establishes generically.


Under Clause 1(a) of the framework agreement, one of the objectives of that agreement is ‘to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination’. Similarly, the third paragraph in the preamble to the framework agreement states that the agreement ‘illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination’. Recital 14 to Directive 1999/70 states that the aim of the framework agreement is, in particular, to improve the quality of fixed-term work by setting out the minimum requirements in order to ensure the application of the principle of <mask>.   It is that principle which Clause 4(1) of the framework agreement aims to apply to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers  . It is settled case-law that, having regard to the objectives pursued by the framework agreement, Clause 4 thereof must be understood as expressing a principle of European Union social law which cannot be interpreted restrictively.


(Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of <mask> — Clause 5 — Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships — Compensation if the employment relationship is terminated — Articles 151 and 153 TFEU — Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Applicability — Difference of treatment based on whether a public or private regime, within the meaning of national law, governs the employment relationship)


As regards the compatibility of the tax with the principle of <mask> enshrined in Article 3 of Directive 2009/72, the referring court underlines that the tax for the use of inland waters only applies to hydroelectric power producers, excluding the power producers using a different technology. In addition, it is only imposed on producers who hold administrative concessions in inter-communities and not intra-community river basins.


Therefore, the financial situation of each person concerned should be examined specifically, without taking account of the social benefits claimed, in order to determine whether he or she meets the condition of having sufficient resources laid down in Article 7(1)(b) of Directive 2004/38 and whether he or she can accordingly invoke, in the host Member State, the principle of <mask> laid down in Article 24(1) of that directive in order to enjoy equal treatment with the nationals of that Member State (see, to that effect, judgment of 11 November 2014, Dano, C‑333/13, EU:C:2014:2358, paragraphs 80 and 81).


In the present case, first, the applicant claims that the Commission’s authorisation of State aid measures and decisions must never infringe other provisions of the TFEU, such as the principle of <mask>. It claims that the contested decision treats the comparable situation of airlines operating routes to and from Finland differently by favouring Finnair without any objective justification. In support of that argument, the applicant relies in particular on the Commission’s practice in relation to aid measures based on Article 107(2)(b) TFEU. The applicant submits that the COVID-19 pandemic has severely affected all the airlines operating in Finland. The need to save Finnair only, to the exclusion of other airlines operating in Finland, has not been established and the aid in question goes beyond what is necessary to attain its objective. The aid in question is a measure of pure economic nationalism. The applicant adds that the earlier measures to rescue financial institutions in 2008 and the Communication from the Commission entitled ‘The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis’ illustrate the importance of the principle of non-discrimination which has been infringed in the present case.


It should be recalled that the principle of <mask> on grounds of age, which is a general principle of EU law, was given specific expression by Directive 2000/78 in the field of employment and occupation (judgment of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 21) and that the prohibition of any discrimination on grounds, inter alia, of age is laid down in Article 21 of the Charter. Moreover, not only is Directive 2000/78 a source of inspiration in disputes concerning the staff of the EU institutions as regards determining the obligations of the competent regulatory authority with regard to the principle of non-discrimination on grounds of age (see, to that effect, judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraphs 68 to 70 and the case-law cited), but it is also binding on the ECB by virtue of Article 9(c) of the Conditions of Employment.


In its assessment of the appellant’s second complaint alleging infringement of the principle of <mask>, in paragraphs 48, 51 and 53 of the judgment under appeal the General Court again links the surviving spouse exclusively with marital status, carrying out a test comparing the situation of a deceased official in an informal union and that of the same official ‘who was married’.


61 It follows that, when it is ruling on a request for a preliminary ruling concerning the interpretation of the general principle of <mask> on grounds of religion, as enshrined in Article 21 of the Charter, and the provisions of Directive 2000/78 – which implement that article and contribute to the achievement of its objectives – in proceedings involving an individual and a public administrative body, the Court examines the question in the light of that directive (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 25 and the case-law cited).


Consequently, it follows both from the wording of clause 2(1) of the framework agreement and from the objective pursued by the framework agreement, and more specifically, by clause 4 thereof, that the principle of <mask>, for the purposes of the latter clause, applies only to all workers providing remunerated services in the context of a fixed-term employment relationship linking them with their employer.


Firstly, infringement of Regulation No 1099/2009, read in conjunction with the principle of equality and <mask>, in that Jewish and Muslim believers are being deprived of the guarantee contained in Article 4(4) of Regulation No 1099/2009 to the effect that ritual slaughter cannot be made subject to the requirement of prior stunning, and in that the contested decree, contrary to Article 26(2) of the aforementioned regulation, was allegedly not notified to the European Commission in time;


On 28 April 2017, the Commission invited Slovenia, pursuant to Article 258 TFEU, to submit its observations on the allegation that it failed to guarantee the inviolability of the archives of the ECB in carrying out the search and seizure at the premises of Banka Slovenije on 6 July 2016 and, as a result, infringed Article 343 TFEU, Article 39 of the Statute of the ESCB and of the ECB and Articles 2 and 22 of the Protocol on the <mask> of the European Union. Moreover, the Slovenian authorities avoided constructive discussion, thus failing to comply with their duty of sincere cooperation under Article 4(3) TEU and Article 18 of the Protocol on the privileges and immunities of the European Union.


It must, however, be noted that Article 42 of the Vienna Convention provides that ‘a diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity’ and there is no provision extending the scope of that prohibition to the members of the agent’s family. Consequently, unlike diplomatic agents themselves, their family members may practise a professional or commercial activity in the receiving State, subject to the laws and regulations of that State and, therefore, subject, where applicable, to any authorisations required by any foreigner of the same nationality, such as a work permit for example. However, in her capacity as a national of an EU Member State, the applicant was exempt from even that obligation. Furthermore, even if they practise a professional or commercial activity, the members of a diplomatic agent’s family as a rule retain their <mask> as provided and circumscribed by Articles 29 to 36 of the Vienna Convention, which apply to them pursuant to Article 37(1) thereof. In fact, under Article 31(1)(c) of the Vienna Convention, only immunity from civil and administrative jurisdiction is waived for actions relating to any professional or commercial activity. There is no advance waiver of criminal immunity.


51 See Wouters, J. and Duquet, S., ‘The EU and International Diplomatic Law: New Horizons?’, The Hague Journal of Diplomacy, vol. 7, No 1, 2012, pp. 31-49, in particular p. 44. According to those authors, ‘the EU’s diplomatic network is made subject to the Vienna Convention through specific agreements with the host country. Most states have accepted the according of <mask> to EU delegations, their staff and their property in this manner. However, the specific provisions and legal frameworks may differ according to the party concerned’.


By contrast, these two institutions state that, according to the general scheme of <mask>, access by the law enforcement authorities of the Member States always required, in principle, the consent of the body concerned.   If the latter refused authorisation, a ruling from the Court would be required. According to its case-law, this also applied to access to the archives of the Union.   However, since the Slovenian authorities neither obtained authorisation from the ECB nor referred the matter the Court, the search and seizure of the documents concerned infringed the archives of the ECB. It was therefore irrelevant whether there is any interference with the functioning or independence of the ECB.


It follows from the considerations set out in paragraphs 83 to 86 above that the immunity laid down in the second paragraph of Article 9 of the Protocol on the <mask> of the European Union precludes, inter alia, that a measure of provisional detention may impede the freedom of Members of the European Parliament to travel to the place where the first sitting of the new parliamentary term is to take place, in order to complete the formalities required by the Electoral Act.


(Reference for a preliminary ruling – Expedited procedure – Institutional law – Citizen of the European Union elected to the European Parliament while being held in provisional detention in the context of criminal proceedings – Article 14 TEU – Concept of ‘Member of the European Parliament’ – Article 343 TFEU – Immunities necessary for the performance of the tasks of the European Union – Protocol (No 7) on the <mask> of the European Union – Article 9 – Immunities enjoyed by Members of the European Parliament – Immunity as regards travel – Immunities as regards sessions – Personal, temporal and material scope of the various immunities – Waiver of immunity by the European Parliament – Request to waive immunity from a national court – Act concerning the election of Members of the European Parliament by direct universal suffrage – Article 5 – Term of office – Article 8 – Electoral procedure – Article 12 – Verification of the credentials of Members of the European Parliament following the official declaration of the election results – Charter of Fundamental Rights of the European Union – Article 39(2) – Election of Members of the European Parliament by direct universal suffrage in a free and secret ballot – Right to stand as a candidate at elections)


It can be inferred from the interplay with Article 1 of the Protocol on the <mask> of the European Union that the documents and data carriers at issue do not fall outside the scope of protection of Article 2 in conjunction with Article 22 of the Protocol simply because they were not located on the premises of the ECB. This is because all objects located on the premises of the ECB are already protected by Article 1 in conjunction with Article 22 of the Protocol. Thus, if Article 2 of the Protocol is to retain an independent scope of application of its own, it must, in principle, also cover documents and data carriers located in places other than the premises of the ECB, in so far as they are ‘archives of the Union’.


In order to provide the referring court with a useful answer to its actual question – namely, whether Article 11(a) of the Protocol on the <mask> of the EU precludes the opening of the judicial inquiry in the criminal proceedings – it is necessary in what follows to assess the necessary connection, in so far as that is possible on the factual basis conveyed. Furthermore, it is necessary to address the factual conditions, the fulfilment of which the referring court has yet to verify in that connection.


Having regard to the conclusion drawn in paragraph 50 above, according to which the governor of a national central bank enjoys immunity from legal proceedings under Article 11(a) of the Protocol on <mask> as a member of an organ of the ECB pursuant to Article 22 of that protocol, the interpretation set out in paragraphs 56 to 75 above applies likewise to the case of such a governor.


As regards the legal source of those immunities, Article 343 TFEU provides that the European Union is to enjoy in the territories of the Member States such <mask> as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Union. Although that article therefore refers to that protocol as regards the determination of the conditions under which immunities are to be ensured, it nevertheless requires that the European Union and, in particular, the Members of its institutions, enjoy the immunities necessary for the performance of its tasks. It follows that those conditions, as determined by that protocol and – in so far as that protocol refers to the law of the Member States – by national legislation, must ensure that the European Parliament is fully able to perform the tasks entrusted to it.


Next, in answer to the fourth question referred, it is necessary to examine how and by whom it is to be determined in a specific case whether the acts which the accused person is alleged to have committed are covered by the immunity provided for in Article 11(a) of the Protocol on <mask> of the EU and under what conditions that immunity may be waived (see Section B).


In the first place, the EU institution to which the official or other servant involved belongs is best placed to determine in which capacity he or she acted. It is even possible that it holds the documents necessary to establish the offence (order of 13 July 1990, Zwartveld and Others, C‑2/88‑IMM, EU:C:1990:315). Moreover, the power which the second paragraph of Article 17 of the Protocol on <mask> expressly confers on the EU institution concerned to verify that the request for waiver of immunity addressed to it is not contrary to the interests of the Union itself confers on that institution competence to ensure that the act alleged against the official or other servant was carried out in his or her official capacity on behalf of the European Union. If the actions of the official or other servant were not carried out in his or her official capacity, the proceedings brought against him or her are a fortiori incapable of harming the interests of the European Union. It follows from the foregoing that the institution to which the person concerned belongs is competent to assess the condition referred to in paragraph 56 above.


However, the mere finding that the seizure in any event also affected documents that can be subsumed under the concept of ‘archives of the ECB’ does not yet give rise to an infringement of immunity. Rather, it is necessary to clarify, in a next step, what is meant by ‘inviolability’ of the archives of the ECB and under what circumstances an infringement of the Protocol on the <mask> of the European Union is to be assumed.


In the second place, it is apparent from case-law that the <mask> recognised by that protocol have a purely functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the European Union. In the light of the special institutional regime of the ESCB and of the Eurosystem, Article 2 of the Protocol on privileges and immunities should apply not only to the documents held by the ECB but also to those held by the national central banks which are part of the ESCB and the Eurosystem, such as the Central Bank of Slovenia, in so far as those documents relate to the execution of the tasks of the ESCB or of the Eurosystem, irrespective of whether they originate from the ECB or the national central banks.


Second, it would impair the functioning and independence of the EU institutions if their activities could be examined in the light of any criteria based on the domestic law of Member States.   This could possibly hinder the fulfilment of such tasks. It is for that reason that Article 11(a) of the Protocol on the <mask> of the EU excludes legal proceedings in the Member States in respect of official acts of EU staff.


The governors of the central banks of the Member States fall within the scope of the Protocol (No 7) on the <mask> of the European Union pursuant to the first paragraph of Article 22, read in conjunction with Article 11(a) thereof, in so far as they perform official tasks within the framework of the European System of Central Banks or the banking union, in particular in their capacity as members of the General Council of the European Central Bank (ECB) or of the Governing Council of the ECB. In addition, if a central bank is a national competent authority within the meaning of point 2 of Article 2 of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, or its governor is a member of that authority under national law, he or she falls within the scope of the Protocol on the privileges and immunities of the European Union pursuant to the first paragraph of Article 22 thereof in so far as that authority performs preparatory acts in a procedure based on the ECB’s exclusive decision-making power. The immunity in respect of such acts performed in an official capacity continues to exist after the end of the term of office.


In the course of the ensuing contact between the Slovenian representative of the ECB and the Slovenian authorities responsible for the investigation, the latter took the view that a decision on any <mask> that could be applicable to some of the documents seized could be taken only after they had been viewed. The ECB’s proposal to agree on a common approach for identifying the ECB’s documents in order to prevent those documents from being analysed without having been released by the ECB in advance was not accepted by the Slovenian authorities, despite those authorities having expressed a willingness to cooperate in principle. The reason for this was that the Slovenian Prosecutor-General regarded the proposal as an impermissible interference in the ongoing preliminary investigation. However, a meeting between the competent prosecutor and the representative of the ECB was scheduled for 18 November 2016 with a view to discussing the details of the cooperation.


In that regard, the Court inter alia noted, in paragraph 37 of that judgment, that ‘the fact that the <mask> [with which Protocol No 7 is concerned] have been provided in the public interest of the European Union justifies the power given to the institutions to waive the immunity where appropriate but does not mean that these privileges and immunities are granted to the European Union exclusively and not also to its officials, to other staff and to Members of the Parliament. Therefore … Protocol [No 7] confers an individual right on the persons concerned, compliance with which is ensured by the system of remedies established by the Treaty’.


In accordance with those objectives and with the requirement referred to in paragraph 76 above, the immunity provided for in the second paragraph of Article 9 of the Protocol on the <mask> of the European Union serves to protect the proper functioning and independence of the European Parliament, as the Advocate General pointed out in points 92 and 94 of his Opinion, by guaranteeing that each of its Members has, after the official declaration of the election results, the ability to travel unimpeded to the first sitting of the new term, in order to comply with the procedures set out in Article 12 of the Electoral Act, and to allow the new parliament to assemble.


The protection thus afforded by the Protocol on <mask> to beneficiaries of immunity from legal proceedings is, as noted in paragraph 74 above, functional in scope and therefore relative and does not, in particular, shield them, as the case may be, against any pressure that might be deliberately exerted on them by means of abusive prosecutions for acts which are not carried out by officials or other servants of the European Union in their official capacity. However, it must be borne in mind that, under the principle of sincere cooperation, the Member States are required, under the third subparagraph of Article 4(3) TEU, to facilitate the achievement of the European Union’s tasks and to refrain from any measure which could jeopardise the attainment of the European Union’s objectives. Such pressure would be, as the Advocate General observed, in essence, in point 138 of her Opinion, capable of calling into question the functioning of the EU institutions and, therefore, of jeopardising the achievement of the objectives of the European Union.


By its application, the European Commission seeks a declaration from the Court of Justice that, by unilaterally seizing at the premises of the Banka Slovenije (Central Bank of Slovenia) documents connected to the performance of the tasks of the European System of Central Banks (ESCB) and of the Eurosystem and by failing to cooperate sincerely with the European Central Bank (ECB) on that matter, the Republic of Slovenia has failed to fulfil its obligations under Article 343 TFEU, Article 39 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (OJ 2016 C 202, p. 230; ‘the Protocol on the ESCB and the ECB’), Articles 2, 18 and 22 of Protocol (No 7) on the <mask> of the European Union (OJ 2016 C 202, p. 266; ‘the Protocol on privileges and immunities’) and Article 4(3) TEU.


That is why the termination of office as governor of a national central bank, which ends, pursuant to Article 10.1 of the Protocol on the Statute of the ESCB and of the ECB, the performance by that governor ex lege of duties as a member of an organ of the ECB, does not deprive him or her of the entitlement to immunity from legal proceedings provided for in Article 11(a) of the Protocol on <mask>.


According to Article 11(a) of Protocol (No 7) on the <mask> of the European Union (‘the Protocol on the privileges and immunities of the EU’ or ‘the Protocol’),   officials and other servants of the EU are immune from legal proceedings in all Member States in respect of acts performed by them in their official capacity. This case provides the Court with an opportunity to determine the scope of that immunity.


First, although the <mask> of the European Union have a functional character, as was recalled in paragraph 73 above, that does not mean that the institution concerned or, in an action for failure to fulfil obligations under Article 258 TFEU, the Commission, has to prove that the disclosure of certain documents entails interference with the functioning and independence of the European Union in order for it to be possible to consider unlawful the unilateral seizure of those documents by the authorities of a Member State. Such an interpretation would be manifestly contrary to both the wording and the objective of Article 2 of the Protocol on privileges and immunities, under which ‘the archives of the Union shall be inviolable’.


In the first place, the Republic of Slovenia submits that it results from both international law and the case-law of the Court of Justice, as well as from the fundamental values of the European Union such as the principles of transparency, openness and the rule of law, that the concept of ‘privileges and immunities’, must be strictly interpreted and that, far from being of an absolute nature, the exercise of those <mask> is restricted in functional terms to the extent necessary to guarantee the functioning of the European Union and its institutions and to achieve their objectives.


The second paragraph of Article 9 of the Protocol (No 7) on the <mask> of the European Union, read in conjunction with subparagraph (a) of the first paragraph of Article 9 of that protocol, must be interpreted as meaning that, before the opening of the first session of the Parliament after the elections, the authorities of the Member State in which a Member of the European Parliament has been elected have an obligation to refrain from taking any measure that could hinder the steps to be taken by that Member necessary for him or her effectively to take office and to suspend measures already taken, unless they have obtained a waiver of the immunity from the Parliament. That obligation only concerns measures to which the parliamentary immunity under national law relates.


However, in EU law the term ‘archives’ has been defined in a different context to that of the Protocol on <mask>, namely Article 1(2)(a) of Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community (OJ 1983 L 43, p. 1), as all those documents and records of whatever type and in whatever medium which have originated in or been received by one of the institutions, bodies, offices or agencies or by one of their representatives or servants in the performance of their duties, and which relate to the activities of those Communities.


And fourth, in accordance with the case-law of the Court, the Protocol on the <mask> of the EU must not be interpreted to the effect that criminal investigations on the territory of the Member States are rendered excessively difficult, if not impossible.   In other words, the functional and thus limited nature of the privileges and immunities of the Protocol is intended to ensure an appropriate balance between the interests of the EU in its independence and functioning, on the one hand, and the interest of the Member States in the effectiveness of their criminal prosecution, on the other. A comprehensive prohibition of investigations would, however, go beyond what is ‘necessary for the performance of its tasks’ within the meaning of Article 343 TFEU.


The Public Prosecutor does not dispute that AB may enjoy such immunity where he acts as a member of the Governing Council of the ECB, but considers that, in the context of the criminal proceedings in the main proceedings, the acts of which he is accused are not linked to the performance of his duties as a member of that council, with the result that the Protocol on <mask> does not apply to AB.


In accordance with that provision, officials and other servants of the European Union continue to enjoy immunity from legal proceedings after they have ceased to hold office. As has been concluded in paragraph 50 of the present judgment, the governor of a national central bank enjoys that immunity from legal proceedings as a member of an organ of the ECB, pursuant to Article 22 of the Protocol on <mask>. Consequently, he or she retains the benefit of that once he or she has ceased to hold the office of member of such an organ.


(3) If the answer to the first question is in the affirmative, does that immunity relate only to immunity “from legal proceedings” as referred to in Article 11(a) of [the Protocol on the <mask> of the EU] or does it also cover the criminal prosecution, including service of the indictment and the gathering of evidence? In the event that the immunity applies to the criminal prosecution, does that fact influence whether the evidence can be used?


By its second question, the referring court asks, in essence, whether Article 11(a) of the Protocol on <mask>, read in conjunction with Article 22 of that protocol, must be interpreted as meaning that the governor of a central bank of a Member State continues to enjoy the immunity from legal proceedings provided for in Article 11(a) of that protocol after he or she has ceased to hold office.


The General Court there first examined the Court’s decision in Humblet v Belgian State.   Mr Humblet was a Belgian national employed in Luxembourg as an official of the ECSC. He was treated as having his domicile for tax purposes in Belgium (where he also maintained a residence) and where his wife received an income. Mrs Humblet’s income was declared in Belgium where it was subject to tax in the name of her husband as head of the household, in accordance with national law. The Belgian authorities then changed their previous practice and required Mr Humblet also to declare the amount of his salary as an ECSC official which was exempt from taxation under the Protocol on <mask> to the ECSC Treaty (‘the ECSC Protocol’). The national authorities issued estimated assessments against Mr Humblet for the tax years in question which he then challenged. In the light of Article 16 of the ECSC Protocol Mr Humblet considered himself to be entitled to bring the matter before the Court of Justice.


First, if the intention had been to preclude any involvement of EU staff in criminal investigations, this would have been expressly prescribed in the Protocol on the <mask> of the EU. This has been provided for accordingly in respect of Members of the European Parliament in Article 8 of the Protocol, for example. They must not be subject to ‘any form of inquiry … or legal proceedings’ in respect of opinions expressed or votes cast by them in the performance of their duties.


These examples of prohibited acts must, in principle, also apply to Article 2 of the Protocol on the <mask> of the European Union. It is not clear why the term ‘inviolability’ in Article 2 of the Protocol should have a meaning different from that in Article 1. In this respect, the case-law of the Court confirms that, when interpreting a provision of the Protocol, account must be taken of the wording and principles of its other provisions.


As already stated, the Protocol on the <mask> of the EU also applies to the ECB, to the members of its organs, and to its staff, in accordance with the first paragraph of Article 22 of that protocol. The supreme decision-making body of the ECB is the Governing Council, which, in accordance with Article 283(1) TFEU, comprises the members of the Executive Board of the ECB and the governors of the national central banks of the Member States whose currency is the euro.


In order to minimise the threat of interference while not unduly delaying the progress of the investigations, both sides must contribute to ensuring a prompt examination. In this connection, Slovenia pointed out that the ECB allowed more than six months to pass before communicating its criteria for the identification of protected documents to the Slovenian authorities.   The ECB was unable to explain this delay at the hearing. However, the Slovenian authorities actually offered the ECB the opportunity to comment only with regard to the documents referred to in point 24 of this Opinion. Instead of refusing to carry out an examination with regard to all the other documents, either the examining judge – following the example of the Zwartveld case – or the court hearing the ECB’s appeal   should have referred the matter to the Court of Justice in order to determine the scope of the protection afforded by Articles 2 and 22 of the Protocol on the <mask> of the European Union.


Finally, the first paragraph of Article 22 of the Protocol on <mask> must be interpreted as granting ECB staff, to which it expressly refers, the same immunity from legal proceedings enjoyed by the staff of other EU institutions. It does not follow from the Treaties or the Protocol on the Statute of the ESCB and of the ECB that the EU legislature intended to confer on the members of the organs of the ECB, and in particular the members of the Governing Council, its main decision-making body, less protection than on the staff of the ECB as a whole.


Slovenia contests that view, stating that the limitation of the protection to documents ‘belonging to or held by’ the organisation concerned was in line with general principles of international law.   The <mask> of the Union were derived from those accorded to international organisations under international law to protect them from unjustified interference by the State in which they are registered. Since, with its increasing level of integration, the Union could no longer be regarded as a conventional international organisation, the privileges and immunities accorded to it also lost their justification and therefore had to be applied restrictively. In contrast to what was typically the case with international organisations, the Union was not in a weaker position in relation to its Member States. In any event, a document was no longer protected by Article 2 of the Protocol on the privileges and immunities of the European Union if the institution concerned communicated or transmitted that document to a national authority – such as a central bank. Transmission to third parties was to be regarded as a waiver of the privileges and immunities of the Protocol. Finally, also due to their functional character, the privileges and immunities of the Union required a restrictive interpretation.


On 17 January 2017, the ECB brought a constitutional complaint against the order referred to in paragraph 26 above, relying on the fundamental procedural rights set out in the Ustava Republike Slovenije (Constitution of the Republic of Slovenia), in particular the right to be heard by a court or tribunal established in accordance with the law. In that constitutional complaint, the ECB submitted that it took the view that a request for a preliminary ruling should be referred to the Court of Justice on the interpretation of Article 2 of the Protocol on <mask>. On 19 April 2018, the Ustavno sodišče (Constitutional Court, Slovenia) dismissed that complaint on the ground that the ECB could not claim the fundamental procedural rights upon which it was relying.


In that connection, it follows from both the wording of Article 9 of the Protocol on the <mask> of the European Union and the title of Chapter III, in which that article is contained, that those immunities are granted to ‘Members of the European Parliament’, and therefore to persons who have acquired that status as a result of the official declaration of the election results by the Member States, as indicated in paragraph 71 above.


On the other hand, neither Article 11(a) nor Article 17 of the Protocol on <mask> indicates which authority is competent to assess the condition for the application of the immunity from legal proceedings referred to in paragraph 56 above, namely that the act alleged against the official or other servant of the European Union must have been carried out by him or her in his or her official capacity.


However, the referring court notes that that case-law does not resolve the issue whether the immunities provided for in the first and second paragraphs of Article 9 of the Protocol on the <mask> of the European Union are applicable during the period prior to the commencement of the first session held by the European Parliament following elections. That being said, that court adds that, in view of the wording of those provisions, their purpose and their legislative context, as interpreted by the Court in its judgments of 7 July 2005, Le Pen v Parliament (C‑208/03 P, EU:C:2005:429), and of 30 April 2009, Italy and Donnici v Parliament (C‑393/07 et C‑9/08, EU:C:2009:275), it could be considered that the immunities laid down in those provisions apply only to Members of the European Parliament who have taken their seat within that institution or, at the very least, persons who were included, by the competent national authorities, on the list of those having complied with the requirements, under the national law of the Member States, to acquire the status of a Member of the European Parliament. Nevertheless, both that interpretation and the interpretation according to which those immunities apply to all persons elected as Members of the European Parliament raise questions, in the referring court’s view, having regard to their practical consequences.


Conversely, Article 9 of that protocol refers, with respect to Members of the Parliament, to ‘immunity from any measure of detention and from legal proceedings’. Article 8 of Protocol (No 7) on the <mask> of the European Union confers on Members of the Parliament material immunity or non-liability for opinions expressed or votes cast by them in the performance of their duties, whereas Article 9 of that protocol guarantees them procedural immunity or inviolability against legal proceedings; see, on that distinction, judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 24), and of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 18), and also Opinion of Advocate General Poiares Maduro in Joined Cases Marra (C‑200/07 and C‑201/07, EU:C:2008:369, point 13), and Opinion of Advocate General Jääskinen in Patriciello (C‑163/10, EU:C:2011:379, point 3).


It is true that it cannot be ruled out that, in certain cases, investigations against an EU official in respect of official acts may already threaten to impair the independence or functioning of EU institutions. For that reason, however, Article 18 of the Protocol on the <mask> of the EU provides that, for the purpose of applying that protocol, the institutions of the EU are to cooperate with the responsible authorities of the Member States concerned. This is intended to avoid conflicts in the interpretation and application of the provisions of the Protocol   and generally to ensure that the objectives of the latter are not frustrated. Article 18 of the Protocol gives concrete expression to the provision of Article 4(3) TEU in this respect.


The Court has to date had only one opportunity to take a position on the question of when an act is connected with the duties of a member of EU staff in such a way that he or she can be deemed to be ‘acting in [his or her] official capacity’ within the meaning of Article 11(a) of the Protocol on <mask> of the EU.   In the Sayag and Zürich judgments, it ruled in that regard that immunity from legal proceedings only covers acts which, by their nature, represent a participation by the person entitled to the immunity in the performance of the tasks of the institution to which he or she belongs.   The acts must, by virtue of an internal and direct relationship, be the necessary extension of the tasks entrusted to the institutions.


It is apparent from that article, which is confirmed both by the order of 13 July 1990, Zwartveld and Others (C‑2/88-IMM, EU:C:1990:315, paragraph 19), and by Article 343 TFEU, that the protection of immunity from legal proceedings is granted to the European Union itself and that it must be waived as a general rule, unless it is contrary to the interests of the European Union. Similarly, Article 23 of the Staff Regulations, the only provision of the Staff Regulations referring to the <mask> of officials, confirms, as is clear from its actual wording, that those privileges and immunities are ‘accorded solely in the interests of the Union’.


This appeal, by which the European Commission challenges the General Court’s decision in RQ v Commission,   raises a number of important questions concerning the fundamental right of an official of the EU institutions to be heard in his own defence. First, is a decision to waive an EU official’s immunity from prosecution in national criminal proceedings an ‘act affecting him adversely’, for the purposes of the Staff Regulations?   Second, what factors should be taken into account in assessing whether an official’s immunity should be waived in accordance with Protocol (No 7) on the <mask> of the European Union (‘Protocol No 7’)? Third, how should the right to be heard be interpreted in relation to the right to good administration enshrined in Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’)?


(Reference for a preliminary ruling – Protocol (No 7) on the <mask> of the European Union – Member of an organ of the European Central Bank – Governor of a national central bank of a Member State – Immunity from criminal proceedings – Indictment connected with activities carried out in the course of employment within the Member State)


Consequently, the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations cannot be extended to the wife of a diplomatic agent who has benefited, in that capacity, from certain <mask> pursuant to the Vienna Convention, but who cannot claim a direct legal connection of that kind. In that regard, the Commission rightly states that the applicant’s right to diplomatic status was not a personal right, but a derived right, intended to facilitate the family life of diplomatic agents, that she acquired through her husband’s duties.


As the Court indicates in the judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraphs 32 to 42), the assessment of the conditions for applying the immunity of a Member of the European Parliament is within the exclusive jurisdiction of the national courts. If, in applying Article 8 of the Protocol, those courts have doubts concerning the interpretation of that article, they may refer a question to the Court under Article 267 TFEU on the interpretation of that article of the Protocol, courts of final instance being, in such circumstances, obliged to make such a reference to the Court. However, the Court emphasised that the Parliament and the national judicial authorities have a duty to cooperate sincerely in order to avoid any conflict in the interpretation and application of the provisions of the Protocol, which in practice means that where an action has been brought against a Member of the European Parliament before a national court and that court is informed that a procedure for defence of the <mask> of that Member has been initiated, that court must stay the judicial proceedings and request the Parliament to issue its opinion as soon as possible.


As regards the Commission’s first plea, the parties are in dispute, on the one hand, over the question of whether documents in the possession of a national central bank may be regarded as being covered by the protection of the ECB’s archives that is provided for in Articles 2 and 22 of the Protocol on the <mask> of the European Union. While Slovenia takes the view that this should be ruled out from a conceptual standpoint alone, the Commission considers that such documents are also protected in so far as they are connected to the performance of the tasks of the ESCB or the Eurosystem.


That interpretation is consistent with the objectives pursued by the Protocol on the <mask> of the European Union, which consists – as follows from the Court’s case-law – in ensuring that the institutions of the European Union have full and effective protection against hindrances or risks to their proper functioning and independence (see, to that effect, judgment of 10 July 1986, Wybot, 149/85, EU:C:1986:310, paragraphs 12 and 22; order of 13 July 1990, Zwartveld and Others, C‑2/88‑IMM, EU:C:1990:315, paragraph 19, and judgment of 22 March 2007, Commission v Belgium, C‑437/04, EU:C:2007:178, paragraph 56).


On 16 November 2016, the ECB lodged an urgent appeal with the Okrožno sodišče v Ljubljani (Ljubljana Regional Court) in order to prevent the imminent securing of the electronic documents. According to the Slovenian Government, the lawfulness of the search and seizure per se was also the subject of this appeal. In any event, Ljubljana Regional Court dismissed it the following day on the ground that the Protocol on the <mask> of the European Union did not preclude seizure and securing operations.


After the appellants submitted their observations to the Parliament and were heard by the JURI Committee, on 23 February 2021 the latter adopted reports A 9‑0020/2021, A 9‑0021/2021 and A 9‑0022/2021 concerning the requests for waiver of the appellants’ immunity. By the decisions at issue, the Parliament waived the appellants’ immunity on the basis of point (b) of the first paragraph of Article 9 of Protocol (No 7) on the <mask> of the European Union (OJ 2012 C 326, p. 266; ‘the Protocol on the privileges and immunities of the European Union’).


The duration of sessions of the Parliament, within the meaning of the first paragraph of Article 9 of Protocol No 7 on the <mask> of the European Union, annexed to the TEU and the TFEU, begins at the opening of the first session of Parliament following its re-election, that is to say, on the date referred to in Article 11(3) of the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Decision 76/787, as amended by Decision 2002/772. That provision of the Protocol begins to apply on the same date. The same applies to a Member of the European Parliament who has not effectively taken office, because he or she has not complied with all the formalities required by national law.


The Commission, supported by the ECB, submits that by unilaterally seizing at the premises of the Central Bank of Slovenia documents connected to the performance of the ESCB’s and the Eurosystem’s tasks, the Republic of Slovenia has infringed the principle of the inviolability of the archives of the ECB and, consequently, has failed to fulfil its obligations under Article 343 TFEU, Article 39 of the Protocol on the ESCB and of the ECB, Articles 2, 18 and 22 of the Protocol on <mask> and Article 4(3) TEU.


‘Whereas these investigations must be conducted in accordance with the Treaty and in particular with … Protocol [(No 7)] on the <mask> of the [European Union  ], while respecting the Staff Regulations of officials[  ] and the conditions of employment of other servants … and with full respect for human rights and fundamental freedoms, in particular, the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value; whereas to that end the institutions, bodies, offices and agencies must lay down the terms and conditions under which such internal investigations are conducted; whereas consequently the Staff Regulations should be amended in order to lay down the rights and obligations of officials and other servants as regards internal investigations’.


Where the national authority responsible for criminal proceedings considers from the outset that the act was carried out by the official or servant concerned in his or her official capacity, it must submit directly to the EU institution concerned a request for waiver of his or her immunity if it intends to continue those proceedings. In accordance with the rule laid down in the second paragraph of Article 17 of the Protocol on <mask>, which is a specific expression of the duty of sincere cooperation owed to the Member States by the institutions, bodies, offices and agencies of the European Union, that request for waiver of immunity must be granted unless it is established that the interests of the Union preclude it. That functional and therefore relative character of the privileges and immunities of the European Union, to which the Court has already had occasion to draw attention (order of 13 July 1990, Zwartveld and Others, C‑2/88‑IMM, EU:C:1990:315, paragraph 20), is all the more important because the effectiveness of proceedings, in particular criminal proceedings, in the Member States is itself capable of directly falling within the interests of the European Union, in particular as regards the protection of the European Union’s financial interests (see, to that effect, judgments of 2 May 2018, Scialdone, C‑574/15, EU:C:2018:295, paragraphs 27 to 29; of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraphs 53 to 55; and 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, paragraphs 212 to 214).


In the first place, as the Commission argues in its application, the concept of ‘inviolability’, within the meaning of Article 2 of the Protocol on <mask>, means protection against any unilateral interference on the part of the Member States. That is confirmed, as the Advocate General observed in points 67 and 68 of her Opinion, by the fact that that concept, which also appears in Article 1 of the Protocol, is described as protection against any search, requisition, confiscation or expropriation measures.


The immunity from domestic legal proceedings pursuant to Article 11(a) of the Protocol on the <mask> of the European Union precludes the opening of legal proceedings in respect of acts performed in an official capacity or the taking of coercive measures by a public authority in respect of a person referred to in that provision before agreement has been reached with the EU institution to which that person belongs. However, this provision does not generally preclude the opening and conduct of preliminary investigations in respect of such acts.


The current wording of the first paragraph of Article 9 of the Protocol has been practically unchanged since the 1951 Protocol on the <mask> of the European Coal and Steel Community. I share the view held by academic commentators that the reference to national law in relation to the immunity of Members of the European Parliament in their own Member States is a relic from the time when members of the Assembly were also members of national parliaments. At that time, they already enjoyed the immunity under national law and it was therefore unnecessary to add a second immunity. That situation became anachronistic once Members of the European Parliament became elected by direct suffrage, and has been even more so since the prohibition on holding both mandates. It has also been strongly criticised as anachronistic and as a source of unequal treatment.


The General Court then proceeded to reject all the Commission’s arguments that sought to challenge that conclusion. First, it rejected the Commission’s submission that the Court’s judgment in Humblet v Belgian State,   concerning the exemption of EU officials from all national taxes on salaries, wages and emoluments (paid by what was at that time the High Authority of the European Coal and Steel Community (‘the ECSC’)), did not confirm that an official can bring proceedings against an institution’s decision to waive his immunity. Second, the General Court held that there was no basis in law for the Commission’s argument that that Court’s earlier ruling in Mote v Parliament   could not be applied by analogy, because that case concerned the <mask> of a Member of the European Parliament (‘MEP’) rather than an official. Third, the General Court rejected the Commission’s submission that the decision of the former Civil Service Tribunal in A and G v Commission,   should be disregarded because that ruling had not been confirmed by the General Court or this Court.


Admittedly, in its judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraphs 42 and 43), cited by the applicant, the Court of Justice referred to the privileges, immunities and the special status from which the party concerned benefited, in finding that she had a specific tie linking her to another State which hindered her integration in the country of employment. However, the question at issue in that case was whether the applicant, who worked at the Länder Liaison Office of the Republic of Austria, had worked for that State and therefore had a tie to it. In that judgment, the Court of Justice deduced such a tie from a number of factors. The first of those factors was that the staff of a permanent representation must be considered to be working for the Member State concerned and, consequently, to be in a situation of expatriation, since they are part of the structures of that representation. The second factor was that, although the person concerned worked at the Länder Liaison Office, she was a member of staff of the Permanent Representation of the Republic of Austria and was subject to the supervisory authority of the Austrian ambassador, so that she had to be regarded as having worked for the Austrian State. Lastly, the third factor was that her status was the same as that of other officials posted to that representation (judgment of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraphs 41 and 42). Thus, the special status referred to by the Court of Justice in paragraph 43 of that judgment cannot be understood as deriving solely from the <mask> from which the person concerned had benefited. On the contrary, the Court of Justice placed more emphasis on the fact that she had worked for the Republic of Austria in its Permanent Representation.


By its fourth question, the referring court essentially seeks to ascertain how to assess whether the accused person in this specific case is immune from legal proceedings under Article 11(a) of the Protocol on the <mask> of the EU, what role the existence of an EU interest plays in that regard, and in what circumstances that court must request the ECB to waive the immunity.