Does Article 63 TFEU on the <mask> or Article 56 TFEU on the freedom to provide services preclude tax rules such as those at issue in the main proceedings, contained in Article 22 of the Statute of Tax Benefits, which provide for a withholding to be made, in full discharge of liability, from dividends distributed by Portuguese companies and received by collective investment undertakings not resident in Portugal and established in other EU [Member States], whereas collective investment undertakings formed under Portuguese tax law and resident for tax purposes in Portugal can benefit from an exemption from the withholding at source made on the said income?


In that context, the referring court observes that it is necessary to assess the appropriateness and proportionality of the restrictions imposed by the provision at issue in the main proceedings not only in relation to the freedom of establishment, the freedom to provide services and the <mask>, but also in relation to principles such as the freedom and pluralism of the media.


Even if Law No LXXVI of 2017 were applicable in a non-discriminatory way, that would not prevent it from constituting a restriction on the <mask>, given the onerous nature of the obligations of declaration, registration and publication it imposes, in addition to their associated deterrent effects. Moreover, the fact that the obligations of declaration and publication are ex post does not affect their restrictiveness even though they are less onerous than an ex ante obligation.


Next, as the German Government stated in its written observations and subject to verification by the referring court, there is no bilateral convention between the Federal Republic of Germany and the Republic of Austria on the taxation of inheritance tax. In those circumstances, the Member State in the territory on which the immovable property that is the subject of the inheritance is situated cannot, in order to justify a restriction on the <mask> stemming from its appropriate legislation, rely on the possibility, beyond its control, of the heir benefiting from a similar deduction granted by another Member State, which may, in whole or in part, offset the harm suffered by the latter due to the Member State in which that immovable property is situated not taking into account, when calculating the inheritance tax, liabilities under the reserved portions (see, inter alia, judgments of 11 September 2008, Eckelkamp and Others, C‑11/07, EU:C:2008:489, paragraphs 67 and 68; of 11 September 2008, Arens-Sikken, C‑43/07, EU:C:2008:490, paragraphs 64 and 65; and of 22 April 2010, Mattner, C‑510/08, EU:C:2010:216, paragraph 42).


21. In the first place, the referring court queries whether the fact that reimbursement of withheld tax on income from capital to companies resident abroad that have an equity holding of less than 10% or 15% in a resident company is subject to stricter conditions than reimbursement of that tax to resident companies that have an equivalent equity holding in a resident company is contrary to Article 63 TFEU. Indeed, under point 5 of the second sentence of Paragraph 32(5) of the KStG, withheld tax is reimbursed to foreign companies only if they, or their direct or indirect shareholders, cannot offset it or deduct it as an operating cost or as work-related outgoings. The referring court also points out that the requirement, laid down in the fifth sentence of Paragraph 32(5) of the KStG, that proof of the foregoing must be provided in the form of a certificate from the foreign tax authorities does not apply to the reimbursement of tax on income from capital to resident companies. It is unsure whether those rules, which, according to it, constitute an interference with the <mask>, are justified in the light of Article 65(1)(a) TFEU and of the criteria established by the Court in, inter alia, the judgment of 8 November 2007, Amurta (C‑379/05, EU:C:2007:655).


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


As the Court has consistently held, a State measure which restricts the <mask> is permissible only if, in the first place, it is justified by one of the reasons referred to in Article 65 TFEU or by an overriding reason in the public interest and, in the second place, it observes the principle of proportionality, a condition that requires the measure to be appropriate for ensuring, in a consistent and systematic manner, the attainment of the objective pursued and not to go beyond what is necessary in order for it to be attained (see, to that effect, judgment of 21 May 2019, Commission v Hungary(Rights of usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraphs 59 to 61 and the case-law cited).


Where, as in this instance, the <mask> is in issue, the transactions benefitting from that freedom are not only those liable to restriction under Articles 64 TFEU and 65 TFEU but also those liable to any other restriction, the scrutiny of which requires an examination of whether, pursuant to the Treaties, the fundamental rights concerned have been respected. Naturally, those rights may include the right to acquire property, the right to work and the freedom of association.


MK is a resident of France. The essence of the claim made by him is that he has been required to pay a higher rate of capital gains tax on the disposal of a Portuguese asset by reason of his non-resident status in that country. The present case accordingly raises the question of whether, in order to establish the existence of discrimination – and, by extension, a restriction on the <mask> – it is necessary to make an overall assessment of all the consequences arising from the application of a special taxation regime. Put another way, the issue is whether for this purpose one must compare all the tax options available to persons residing in another Member State with those available to the residents of the Member State of taxation or, alternatively, whether that comparison should be made in relation to each of those options considered in isolation?


In the course of the proceedings before the Financial Authority and then before the Curtea de Apel București (Court of Appeal, Bucharest), the applicants in the main proceedings submitted that the relevant national provisions infringe, inter alia, the provisions of EU law on the <mask>. They also argued that the concept of ‘concerted action’, as provided for in EU law, applies only in the context of a binding takeover bid, since the EU legislature presumes that persons who are controlled or who control others act in concert and that, together, they seek to assume control of the issuing company through the execution of the bid or the frustration thereof. Article 2(2) of Directive 2004/25 establishes only a presumption as regards persons controlled by another person holding the majority of voting rights.


It follows that, viewed together, the obligations of registration, declaration and publication imposed on the ‘organisations in receipt of support from abroad’ under Paragraphs 1 and 2 of the Transparency Law and the penalties provided for in Paragraph 3 of that law constitute a restriction on the <mask>, prohibited by Article 63 TFEU unless it is justified in accordance with the FEU Treaty and with the case-law.


In my view, if national legislation is called into question on the grounds of infringement of Article 63 TFEU without express reference to a possible breach of the Charter (in other words, if the complaint relates to the mere restriction of the <mask> as such, without associating that restriction with the breach of a particular fundamental right), the judicial test must be that always used by the Court for this task: the traditional test.


In that connection, it should be observed that, although it is for each Member State to organise its system for taxing distributed profits and to define, in that context, the tax base which applies to the shareholder receiving the dividends, it is settled case-law that Member States must nevertheless exercise their fiscal autonomy in accordance with the requirements of EU law, in particular those imposed by the provisions of the FEU Treaty on the <mask>, which requires that the tax system be designed to be non-discriminatory (see, to that effect, judgment of 30 January 2020, Köln-Aktienfonds Deka, C‑156/17, EU:C:2020:51, paragraphs 42 and 45 and the case-law cited).


11 It should be recalled that when a national measure concerns several of the freedoms of movement guaranteed by the Treaties, the Court will in principle examine the measure in dispute in relation to only one of those freedoms if it appears, in the light of the subject matter of that measure, that the other freedoms are entirely secondary in relation to that freedom and may be considered together with it (see, to that effect, concerning a measure relating to both <mask> and freedom of establishment, judgments of 13 November 2012, Test Claimants in the FII Group Litigation, C‑35/11, EU:C:2012:707, paragraphs 89 to 93, and of 28 February 2013, Beker and Beker, C‑168/11, EU:C:2013:117, paragraphs 25 to 31 and, concerning a measure relating to both the free movement of capital and the freedom to provide services, judgment of 26 May 2016, NN (L) International, C‑48/15, EU:C:2015:356, paragraph 39).


Secondly, nor can the obligations of registration, declaration and publication established by the Transparency Law and the accompanying penalties be regarded as having a deterrent effect on the <mask>. Those obligations are drafted in objective and neutral terms. Furthermore, they exclusively concern natural or legal persons paying financial support over certain thresholds, of which there would not be many.


112 In that regard, in accordance with the Court’s settled case-law, a measure which restricts the <mask> is permissible only if it is justified by an overriding reason in the public interest and observes the principle of proportionality, which means that the measure must be appropriate for ensuring the attainment of the objective pursued and not to go beyond what is necessary in order for it to be attained (judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 59 and the case-law cited).


In that context, as regards the argument that it would be contrary to the <mask> to adopt a different tax base from that adopted by the Member States in which the dividends are paid for the calculation of the French tax credit, when the French Republic and those Member States intended to eliminate double taxation, it must be observed that, in accordance with the case-law of the Court, referred to in paragraph 26 of the present judgment, each Member State is free to define, in compliance with Union law, the tax base which applies to shareholders receiving the dividends.


In those circumstances, suffice it to state that Paragraph 108(4) and (5) of the 2013 Law on transitional measures must also be compatible, inter alia, with the principle of effectiveness, as recalled in paragraph 51 above, which means that it must not render practically impossible or excessively difficult the exercise of rights conferred by EU law, and with the fundamental freedoms, in particular the <mask> provided for in Article 63 TFEU.


E brought an action before the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) seeking the annulment of the decision of the Central Tax Committee. Before that court, E submitted that the taxation of the earnings distributed by the SICAV incorporated under Luxembourg law at issue as income from employment, in accordance with Paragraph 33c(3), is more stringent than the taxation of earnings distributed by an investment fund constituted under Finnish law as capital income and, consequently, contrary to the <mask> enshrined in Article 63 TFEU.


33 Although that legislation is, prima facie, capable of being covered by both Article 43 EC and Article 56 EC (now, after amendment, Articles 49 and 63 TFEU), the fact remains that, in the context of the main proceedings, any restrictions on freedom of establishment resulting from that legislation are an inevitable consequence of the restriction of the <mask> and do not, therefore, justify an independent examination of that legislation in the light of Article 43 EC (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 55 and the case-law cited).


The Court has also held that a distinction must therefore be made between the differences in treatment authorised by Article 65(1)(a) TFEU and discrimination prohibited by Article 65(3) TFEU. Before national tax legislation can be regarded as compatible with the provisions of the Treaty on the <mask>, the difference in treatment must concern situations which are not objectively comparable or be justified by an overriding reason in the public interest (judgment of 22 November 2018, Sofina and Others, C‑575/17, EU:C:2018:943, paragraph 46 and the case-law cited).


47. A distinction must, therefore, be made between differences in treatment which are permitted under Article 65(1)(a) TFEU and discrimination which is prohibited by Article 65(3) TFEU. For the German legislation at issue to be capable of being regarded as compatible with the Treaty provisions on the <mask>, the difference in treatment resulting from that legislation must concern situations which are not objectively comparable or be justified by an overriding reason in the public interest (judgment of 30 April 2020, Société Générale, C‑565/18, EU:C:2020:318, paragraph 24).


43 Consequently, it must be held that, as the referring court reasons, that difference in treatment is liable to discourage open-ended investment funds governed by the law of Member States other than the Italian Republic from acquiring real estate used for commercial purposes in Italy and therefore constitutes a restriction on the <mask> prohibited, as a rule, by Article 56 EC (now, after amendment, Article 63 TFEU).


In the circumstances of the case in the main proceedings, the freedom to provide services appears to be secondary in relation to the <mask>. The legal conditions for the tax at issue, which concerns financial transactions, apply irrespective of whether or not those transactions involve a supply of services. In addition, the referring court is uncertain as to the possible restrictive effects which might result from the very introduction of such a tax, without identifying which aspects of it might specifically affect such a supply. Lastly, according to the information set out in the request for a preliminary ruling, Société Générale paid the relevant tax in its capacity as a financial operator participating in the transactions at issue in the main proceedings, although no further information regarding those transactions or its involvement therein has been provided. In particular, the request does not state on what basis and for what purposes those transactions were traded.


Only in the event that the Court proceeds on the assumption that the situations are comparable is it necessary to examine whether the different taxation of resident and non-resident UCITS can be justified. According to the case-law of the Court, for national tax legislation to be capable of being regarded as compatible with the provisions of the Treaty concerning the <mask>, the difference in treatment must be justified by an overriding reason in the public interest.


The information contained in the documents before the Court support the inference that Vivendi’s acquisition of shares in, and taking control of, TIM involve the exercise of the right of establishment. Conversely, Vivendi’s acquisition of a significant proportion of Mediaset’s shares would fall either within the <mask> (if Vivendi’s intention was simply to make a financial investment) or with the freedom of establishment (if Vivendi sought to intervene in Mediaset’s management).


38. Like the Commission, it seems to me that, by its first question, the referring court primarily seeks to ascertain whether the German legislation at issue is compatible with the <mask> to the extent that it permits a refusal to reimburse tax on income from capital in respect of dividends from free-float shares to non-resident companies where those companies or a shareholder with a direct or indirect equity holding in them can offset that tax, deduct it as an operating cost or as work-related outgoings or carry it forward. That question is to be assessed in the light of the fact that resident companies that have an equivalent equity holding in another resident company are not subject to such a condition in order to obtain reimbursement of withheld tax on income from capital.


On 30 November 2018, MK challenged that tax assessment notice before the national court, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal) on the ground that it is vitiated by illegality in that it is based on legislation which discriminates against taxable persons resident in the territory of an EU Member State other than the Portuguese Republic (‘non-residents’) as compared with taxable persons resident in Portugal, and claimed, in accordance with the judgment of the Court of Justice of 11 October 2007, Hollmann (C‑443/06, EU:C:2007:600), that that legal framework constitutes a restriction on the <mask> as enshrined in Article 63(1) TFEU.


In this respect, the amendment in the Maastricht Treaty   by which the current Article 65 TFEU was inserted has, in my opinion, lowered the level of protection afforded by the <mask> against restrictions based on tax legislation. Consequently, the free movement of capital must be attributed less weight than the other fundamental freedoms when weighed against the differentiation objectives of the Member States in such cases.   In other words, a restriction on the free movement of capital can be justified more easily by tax law provisions that are linked to residency than, for example, a restriction on the freedom of establishment. I will return to this in the context of the examination of proportionality.


Finally, it may be recalled that a restriction on the <mask> is permissible only if justified, in cases of direct discrimination, on grounds expressly provided for by the Treaty   or, in the case of indirect discrimination, also by overriding reasons in the public interest and, if that is the case, only if it is suitable for securing the attainment of the objective in question and does not go beyond what is necessary in order to attain it.


Given that the objective of the freedoms of movement is the completion of the internal market, the Court initially used a specific definition in that field. Indeed, where the Treaty prohibits the use of a specific criterion, direct discrimination occurs when a person is expressly treated less favourably on the basis of that criterion. There is instead an indirect discrimination when the criterion used appears to be superficially neutral while in practice placing persons fulfilling the prohibited criterion at a disadvantage as compared with others.   On the basis of this approach, in the context of the exercise of freedoms of movement, including the <mask>, the Court used to consider that a direct discrimination occurred when a measure established a distinction according to nationality and an indirect discrimination arose when a measure, although based on another criterion, such as that of residence, led in fact to the same result.


Consequently, it is solely a matter of weighing the applicant’s freedom of movement of capital against the abovementioned overriding reasons of public interest in this specific case. In that context, it is first necessary – as explained above in point 64 et seq. – to take into account the fact that the <mask> must be attributed less weight when weighed against the differentiation objectives of the Member States. On the other hand, the guarantee of a minimum level of taxation, the effective enforcement of taxation claims and an appropriate allocation of the power to impose taxes are among the central public interests, as they serve to finance the State budget. Without a sufficient tax basis, the State cannot perform its tasks and fulfil its functions.


All special rights held by Member States in companies should be viewed in the framework of the <mask> and the relevant provisions of the Treaty. Special rights held by Member States in companies which are provided for in private or public national law should be exempted from the “breakthrough” rule if they are compatible with the Treaty.’


In fact, due to the use by Portugal of a progressive rate imposed on all income (including realised capital gains), (which is the regime which generally applies to residents) on the one hand and a fixed rate of capital gains on the other (which is the regime which is generally applicable to non-residents with no other income taxable in Portugal in respect of once-off capital gains), it is almost inevitable that, in certain comparable situations, some non-resident taxpayers will be treated less favorably than resident taxpayers.   Indeed, according to the Court’s case-law, any unjustified restriction, even of minor importance, on the <mask> is to be regarded as discriminatory. It is thus generally sufficient for a tax law to introduce direct or indirect discrimination in respect of even one taxable person in a cross-border situation, for that legislation might be considered incompatible with EU law.


Accordingly, it must be found that the tax practice according to which the recipient of dividends attached to listed shares could, for the purposes of determining the basis of assessment of income tax, partly deduct those dividends provided, however, that the shares generating those dividends are listed on the Portuguese stock exchange, was such as to deter persons eligible for the tax advantage provided for in Article 31 of the EBF from making investments in non-resident companies, and therefore constitutes a restriction on the <mask> prohibited, in principle, by Article 63 TFEU.


The Commission, supported by the Kingdom of Sweden, submits, first, that the Transparency Law restricts the <mask>, treating movements of capital between Hungary, on one hand, and the other Member States and third countries, on the other hand, in an indirectly discriminatory manner. While not referring to nationality, that law applies by reference to a criterion relating to the existence of movements of capital originating from abroad, more specifically to financial support paid to civil society organisations established in Hungary by natural or legal persons with their place of residence or their registered office in another Member State or in a third country.


59. In the same context, I also concur with the Commission that a mere deduction of the withheld tax on income from capital as an operating cost or as work-related outgoings by the non-resident company or by its direct or indirect shareholders, in their State of residence, would be insufficient to neutralise the restriction to the <mask> so identified. Thus, the Court has held that, although Belgian legislation allows the deduction, as an expense, of tax paid abroad from the taxable base of income before applying a tax rate of 25% to the net amount of the dividends received by a taxpayer established in Belgium, such a deduction does not entirely compensate for the effects of any restriction on the free movement of capital in the Member State from which the dividends were paid (judgment of 17 September 2015, Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 83).


(Reference for a preliminary ruling – <mask> – Articles 63 and 65 TFEU – Inheritance tax – National inheritance tax legislation – Unequal treatment of residents and non-residents – Limited tax liability – Domestic real property – Pro-rated allowance for non-residents – Not a restriction – National legislation not providing for the debt arising out of reserved portions to be deductible – Absence of any economic connection to the taxed assets – Restriction – Unjustified)


Since the national court refers, in the question submitted for a preliminary ruling, to both freedom of establishment and <mask>, enshrined in Articles 49 and 63 TFEU respectively, it should be noted, as a preliminary point, that the creation and the outright ownership by a natural or legal person established in a Member State of a permanent establishment, such as a branch, situated in another Member State, fall within the scope of Article 49 TFEU (see, to that effect, judgments of 15 May 2008, Lidl Belgium, C‑414/06, EU:C:2008:278, paragraph 15, and of 15 September 2011, Dickinger and Ömer, C‑347/09, EU:C:2011:582, paragraph 35).


37 In addition, where a national measure relates to the freedom of establishment and the <mask> at the same time, the Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case in the main proceedings, that one of them is entirely secondary in relation to the other and may be considered together with it (see, by analogy, judgment of 30 April 2020, Société Générale, C‑565/18, EU:C:2020:318, paragraph 19 and the case-law cited).


It is settled case-law that, where a national measure relates to the freedom to provide services and the <mask> at the same time, the Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case in the main proceedings, that one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, judgments of 3 October 2006, Fidium Finanz, C‑452/04, EU:C:2006:631, paragraph 34; of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 39; and of 8 June 2017, Van der Weegen and Others, C‑580/15, EU:C:2017:429, paragraph 25).


The necessity for a non-discrimination test – and, therefore, for examining the comparability of the two situations in order to classify a measure as a ‘restriction’ in this sense – must be considered as having been definitely established since the judgment of 17 July 2014, Nordea Bank Danmark (C‑48/13, EU:C:2014:2087). In that case, Advocate General Kokott proposed abandoning the non-discrimination test and instead urged the application to tax matters of the same test as those applied in other areas.   The Court, however, did not follow her Opinion in that respect.   In addition, where, as in the present case, the <mask> is at issue, the need for such a comparison flows from the wording of Article 65 TFEU.


(Request for a preliminary ruling from the Finanzgericht Köln (Finance Court, Cologne, Germany)) (Reference for a preliminary ruling – Articles 63 and 65 TFEU – <mask> – Distribution of dividends from ‘free-float’ shares – Reimbursement to a non-resident company of tax on capital income levied in the form of a withholding tax – Condition relating to the situation of shareholders with a direct or indirect equity holding in the company receiving dividends – Requirement to submit a certificate from the tax authorities of the State of residence – Proportionality)


83 Consequently, it must be held that, by reason of its very purpose, the national legislation at issue in the main proceedings falls predominantly within the scope of the <mask> provided for in Article 63 TFEU (see, to that effect, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 158 and the case-law cited).


Should the Court take the view that the ‘arbitrary discrimination’   prohibited under Article 65(3) TFEU is to be equated with the normal discrimination prohibited under the other fundamental freedoms in tax law, the abovementioned particularities of the <mask> in relation to the tax law of the Member States must, however, be taken into account at the latest when weighing them up in the context of the examination of proportionality.


42 The Commission submits that, by penalising the failure to comply with, or late compliance with, the obligation to provide information with a proportional fine of 150% of the tax calculated on the amounts corresponding to the value of the rights or assets situated abroad, which is automatic and cannot be varied, the Spanish legislature introduced a disproportionate restriction on the <mask>.


It must be stated that legislation of a Member State which taxes transactions involving derivative financial instruments, such as Article 1(492) of Law No 228/2012, falls within the scope of the <mask> where the tax applies to financial transactions implementing capital movements. Such legislation is also liable to affect the freedom to provide services, inasmuch as it may have an impact on financial services involving securities issued by companies established in that Member State and offered in another Member State.


Admittedly, here, other measures, particularly of a behavioural nature, such as a prohibition on the acquisition of real estate in Italy for speculative purposes, would probably have been more effective for this purpose. Such measures would, however, have had an even greater impact on the <mask> and the freedom of enterprise. A fortiori, the same problem would have arisen if structural measures, such as those currently provided for in the AIF Directive, had been adopted towards all funds wishing to acquire commercial real estate in Italy. Indeed, it should be remembered that the right to freedom of enterprise includes the right of every enterprise to freely dispose, within the limits of the liability it incurs for its own actions, of the economic, technical and financial resources at its disposal.


45 In that respect, it has previously been held that national legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities comes within the scope of Article 49 TFEU on freedom of establishment. On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking must be examined exclusively in the light of the <mask> (judgment of 13 March 2014, Bouanich, C‑375/12, EU:C:2014:138, paragraph 28 and the case-law cited).


The referring court raises five questions concerning the compatibility of a Portuguese provision of tax law with the fundamental freedoms. By all the questions referred, the referring court ultimately seeks to ascertain whether the taxation of a UCITS formed under foreign law and having its seat in another Member State is compatible with the <mask> and the freedom to provide services whereas, by contrast, UCITS formed under Portuguese law and having their seat in Portugal are exempt from corporation tax but are subject to a different tax – stamp duty. Therefore, in line with the view taken by the Commission, all the questions can be answered together.


18 Since UBS Real Estate was of the view that the appellate court had erred in holding that Article 35(10-ter) of Decree-Law No 223/2006 was consistent with Articles 12, 43 and 56 EC (now, after amendment, Articles 18, 49 and 63 TFEU), it brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), the referring court. In support of its appeals, it submits, in particular, that since it had been held on appeal that the two types of investment fund mentioned in the preceding paragraph corresponded to different situations which could be treated differently, whereas such differences were irrelevant in the light of the rationale of Article 35(10-ter) of Decree-Law No 223/2006, the provisions of the Treaties relating to the <mask> and freedom of establishment had been infringed.


However, in its case-law on the <mask> and inheritance tax, the Court has held that a citizen cannot be deprived of the right to rely on the provisions of the Treaty on the ground that he or she is profiting from tax advantages which are legally provided for by the rules in force in a Member State other than his or her State of residence,   in the absence of a double taxation treaty.


The Court’s case-law contains examples of restrictions on the freedom of establishment and the <mask> that are analysed in relation to only one of those freedoms depending on the context of the disputes in the main proceedings. See, inter alia, judgments of 17 September 2009, Glaxo Wellcome (C‑182/08, EU:C:2009:559, paragraph 51 and the case-law cited), and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 55).


So far as concerns, in the second place, the existence of a restriction to the <mask>, it follows from consistent case-law of the Court that the concept of a ‘restriction’ in Article 63 TFEU covers, generally, any restriction on movements of capital both between Member States (see, to that effect, judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 39 and the case-law cited) and between Member States and third countries (see, to that effect, judgments of 18 January 2018, Jahin, C‑45/17, EU:C:2018:18, paragraphs 19 to 21, and of 26 February 2019, X (Controlled companies established in third countries), C‑135/17, EU:C:2019:136, paragraph 26).


The Court held, first of all in paragraphs 62 to 64 of that judgment, that by providing for the extinguishment by operation of law of rights of usufruct held over agricultural land by nationals of Member States other than Hungary, the national legislation concerned, by its very purpose and on account of that fact alone, restricted the right of the persons concerned to the <mask> guaranteed in Article 63 TFEU, in so far as that legislation deprives them both of the possibility of continuing to enjoy their rights of usufruct, by preventing them, inter alia, from using and farming the land concerned or from letting it to tenant farmers and thereby making money from it, and of any possibility of alienating that right. Next, in paragraph 65 of that judgment, the Court added that that legislation was likely to discourage non-residents from making investments in Hungary in the future. Finally, in paragraphs 24, 94 and 107 of that judgment, the Court held that that restriction on the free movement of capital could not be justified on the basis of the evidence put forward by Hungary.


(Action for failure to fulfil obligations — <mask> — Articles 63 TFEU and 65 TFEU — Respect for private life — Protection of personal data — Freedom of association — Transparency — Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union — Foreign donations to non-governmental organisations which carry on their activity in a Member State — National legislation imposing on non-governmental organisations in receipt of support from abroad legally binding obligations of registration, declaration and transparency which can be enforced)


61. According to settled case-law of the Court, a restriction on the <mask> is permissible only if it is justified by overriding reasons in the public interest, if it is suitable for securing the attainment of the objective which it pursues and if it does not go beyond what is necessary in order to attain that objective (see, to that effect, judgments of 26 February 2019, X (Controlled companies established in third countries), C‑135/17, EU:C:2019:136, paragraph 70, and of 30 January 2020, Köln-Aktienfonds Deka, C‑156/17, EU:C:2020:51, paragraph 83 and the case-law cited).


54 In those circumstances, the Commission has established that, by imposing on the taxpayer in respect of failure to comply with his or her obligations to declare relating to the taxpayer’s assets or rights situated abroad a fine proportional to 150% of the amount of tax calculated on amounts corresponding to the value of those assets or those rights, which could be applied concurrently with flat-rate fines, the Spanish legislature caused disproportionate interference with the <mask>. The proportionality of the flat-rate fines


The parties differ on this point. The Commission, having lodged very general written observations in which it submitted that ‘at first glance, granting non-resident heirs a pro-rated allowance constitutes … a restriction on the <mask> which, in principle, is prohibited by Article 63 TFEU’, expressed support at the hearing for the submissions that the applicant made by reference to examples.


96. I would point out at this stage of my analysis that the Court has abundant case-law tackling that issue, from the point of view of both the <mask> and the freedom of establishment. Specifically, in a line of cases involving facts similar to those in the main proceedings, the Court held that national legislation under which a non-resident company is taxed, by means of tax withheld at source by a resident company, on the interest which it is paid by the latter without it being possible to deduct expenses, such as interest expenditure, that are directly related to the lending at issue, whereas such a possibility of deduction is accorded to resident companies receiving interest from another resident company, constitutes a restriction on the freedom of establishment. (41) The same conclusion was reached with regard to the free movement of capital. (42)


(Failure of a Member State to fulfil obligations — Admissibility — Article 63 TFEU — <mask> — Existence of a restriction — Burden of proof — Indirect discrimination linked to the origin of the capital — Article 12 of the Charter of Fundamental Rights of the European Union — Right to freedom of association — National rules imposing on associations receiving financial support sent from other Member States or from third countries legally binding obligations of registration, declaration and publication which can be enforced — Article 7 of the Charter of Fundamental Rights — Right to respect for private life — Article 8(1) of the Charter of Fundamental Rights — Right to the protection of personal data — National rules imposing the disclosure of information on persons providing financial support to associations and of the amount of that support — Justification — Overriding reason in the public interest — Transparency of the financing of associations — Article 65 TFEU — Public policy — Public security — Fight against money laundering, financing of terrorism and organised crime — Article 52(1) of the Charter of Fundamental Rights)


The Court of Justice has therefore already addressed the French legal situation with regard to the taxation of dividends in a chain of companies in Accor   and Commission v France   and found infringements of the freedom of establishment and the <mask> in each case. The issue in the present case is the compatibility of the relevant French provisions with Directive 90/435   (‘the Parent-Subsidiary Directive’). By its present request for a preliminary ruling, the Conseil d’État (Council of State, France) is now seeking interpretation of that directive, in particular as to whether Article 7(2) thereof allows the imposition by the French authorities of such an advance payment.


If, on the other hand, it should transpire that the quarterly stamp duty in the present case leads to significantly more favourable tax treatment of UCITS resident in the national territory, this is liable to deter non-resident UCITS from making investments in the Member State concerned and, consequently, amounts to a restriction of the <mask>, prohibited, in principle, under Article 63 TFEU.


It should be recalled that, according to the Court’s settled case-law, a restriction on the <mask> is permissible if it is justified by overriding reasons in the public interest, if it is suitable for securing the attainment of the objective which it pursues and if it does not go beyond what is necessary in order to attain that objective (see, to that effect, judgments of 26 February 2019, X (Controlled companies established in third countries), C‑135/17, EU:C:2019:136, paragraph 70, and of 30 January 2020, Köln-Aktienfonds Deka, C‑156/17, EU:C:2020:51, paragraph 83 and the case-law cited).


As a preliminary point, it should be noted that the question raised does not relate solely to the applicant’s situation, but more generally to the compatibility with Union law of an item of national legislation, as described by the national court. Since the questions referred by the national court enjoy a presumption of relevance,   I consider it necessary to examine the tax regime at issue and not the particular situation of the applicant. Similarly, since the question raised does not concern the situation of persons residing in a third state – even if the principle of <mask> also prohibits restrictions between Member States and third States – it is not necessary, in my view, to examine this issue.


It follows that a restriction on the <mask> such as that resulting from the national legislation at issue in the main proceedings may be justified by the objective of combating tax evasion and avoidance. As is apparent from paragraph 68 and 69 of this judgment, the restriction must also be appropriate for ensuring the attainment of that objective, and it must not go beyond what is necessary for attaining it.


(Reference for a preliminary ruling – Articles 49 and 63 TFEU – Freedom of establishment – <mask> – Calculation of the taxable income of companies – Persons having a relationship of interdependence – Unusual advantage granted by a resident branch to a non-resident company – Correction of the taxable income of the branch of a non-resident company – No correction of taxable income in the event of an identical advantage granted by a branch to a resident company – Principle of free competition – Restriction on freedom of establishment – Justification – Balanced allocation of the power to tax between Member States – Proportionality)


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


However, it seems doubtful to me whether this takes sufficient account of the abovementioned particularities of the <mask>. In his Opinion in the Pensioenfonds Metaal en Techniek case, Advocate General Szpunar took the view   that the Court takes account of those particularities by virtue of the principle that the situations of residents and of non-residents are not, as a rule, comparable. That statement may be true for older case-law, such as the Schumacker judgment. It was also clarified in that case that, in relation to direct taxes, the situations of residents and of non-residents are not comparable.


However, as follows from the case-law of the Court in the Pensioenfonds Metaal en Techniek case,   the question of whether there is a restriction on the <mask> is not to be based on a purely formal assessment of the exemption from a type of tax. Rather, the entire fiscal environment surrounding the taxation of a UCITS must be taken into account, that is to say, it is necessary to carry out a comprehensive (material) examination.


158. First of all, I recall that Directive 2008/7 provides for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital (77) in order to eliminate, as far as possible, factors which may distort conditions of competition or hinder the <mask>, and thus to ensure the smooth functioning of the internal market. (78)


90 As regards the administrative burden on the tax authorities of the Member States of taxation that would result from taxpayers being allowed the opportunity to provide the information to demonstrate that those conditions have been met, it should be noted that administrative disadvantages are not alone sufficient to justify a barrier to the <mask> (see, to that effect, judgment of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 56 and the case-law cited).


A distinction must therefore be drawn between the unequal treatment permitted under Article 65(1)(a) TFEU and the arbitrary discrimination prohibited by Article 65(3) thereof. In that regard, the case-law of the Court makes it clear that, in order for national tax rules to be regarded as compatible with the Treaty provisions on the <mask>, the difference in treatment must relate to situations which are not objectively comparable or which must be justifiable by an overriding reason in the public interest (see, to that effect, judgment of 30 June 2016, Feilen, C‑123/15, EU:C:2016:496, paragraph 26 and the case-law cited). In the latter case, the difference in treatment must be appropriate for securing the attainment of the objective it pursues and must not go beyond what is necessary to attain it (see, to that effect, judgment of 22 November 2018, Huijbrechts, C‑679/17, EU:C:2018:940, paragraph 30 and the case-law cited).


Furthermore, in the contested decision, the Commission examined whether the implementation of the aid scheme at issue was compatible with the fundamental freedoms of movement and in particular with the <mask> and the freedom of establishment. In that regard, it noted that none of the eligibility criteria, and in particular those relating to the systemic or strategic importance of the beneficiaries for the Spanish economy and the fact that their principal places of business must be located in Spain, cannot be interpreted or applied as making the benefit of the aid subject to the transfer to Spain of their activities carried out in another Member State (paragraphs 46, 59 and 60 of the contested decision). The applicant does not dispute that assessment.


113 According to the Court’s case-law, prevention of tax evasion is an overriding reason relating to the public interest, capable of justifying a restriction on the exercise of fundamental freedoms guaranteed by the FEU Treaty, including the <mask>, as is the need to safeguard the balanced allocation between the Member States of the power to impose taxes (judgment of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 65). The same applies to the need to ensure the effective collection of tax (see, to that effect, judgment of 30 April 2020, Société Générale, C‑565/18, EU:C:2020:318, paragraph 38 and the case-law cited).


Therefore, it is necessary to examine whether the restriction on the <mask> thus established can be justified under Article 65(1)(a) TFEU and, in the light of the grounds set out in paragraphs 35 and 36 of the present judgment, whether the difference in treatment concerns situations which are not objectively comparable or whether it meets an overriding reason in the public interest and, if so, whether it is appropriate for securing the attainment of the objective that it pursues and does not go beyond what is necessary to achieve that objective.


63. As regards the first justification, it must be recalled that the need to safeguard the balanced allocation between the Member States of the power to impose taxes is a ground capable of justifying a restriction on the <mask>, in particular, where the national measures in question are designed to prevent conduct capable of jeopardising the right of a Member State to exercise its powers of taxation in relation to activities carried out in its territory (see, to that effect, judgments of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 121, and of 10 April 2014, Emerging Markets Series of DFA Investment Trust Company, C‑190/12, EU:C:2014:249, paragraph 98).


Tesco brought an action before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary) contesting the decision of the Resources Directorate. Tesco submits that the obligation to pay the special tax imposed on it has no legal basis, arguing that the legislation relating to that tax adversely affects freedom of establishment, the freedom to provide services and the <mask>. Further, that legislation is contrary to the principle of equal treatment, constitutes prohibited State aid and is contrary to Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


As the referring court has raised the issue of unequal treatment of residents and non-residents in relation to transfer duties, on the basis that differences of treatment might constitute restrictions on the <mask>, I should point out that, according to settled case-law of the Court, inheritances, which consist in the transfer to one or more persons of assets left by a deceased person, constitute movements of capital within the meaning of Article 63 TFEU, except in cases where their constituent elements are confined within a single Member State.


77. I believe that a national provision, such as the fifth sentence of Paragraph 32(5) of the KStG, under which reimbursement of withheld tax on income from capital to a non-resident company is granted only following submission of a certificate from the foreign tax authorities stating that the tax cannot be offset, deducted or carried forward and that no set-off, deduction or carry-forward has actually taken place either, and that in respect of both that company and all direct or indirect shareholders, without affording any opportunity for the non-resident company to adduce alternative proofs, is likely to constitute a disguised restriction on the <mask> prohibited by Article 65(3) TFEU (see, to that effect, judgment of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 40 and the case-law cited).


In so far as Paragraph 33c(1) and (2) provides that these conditions apply only to foreign companies, that provision establishes a difference in treatment based on nationality.   Moreover, since corporations governed by Finnish law and those governed by foreign law might both be subject to double taxation, the situations thus differentiated must be considered, in the light of the aim of that measure, as comparable.   In those circumstances, the conclusion that Paragraph 33c(1) and (2) establishes direct discrimination on grounds of nationality and, consequently, a restriction on the <mask>, is inevitable.


It is therefore necessary to consider whether, as the Commission submits but the German Government does not accept, the national legislation at issue, under which the amount of the allowance is no longer fixed, as in the previous cases, but is proportional to the tax base, constitutes a restriction on the <mask> contrary to Article 63(1) TFEU.


(Reference for a preliminary ruling – <mask> – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 2(2) – Discrimination on the grounds of religion or belief – Internal rules of undertakings prohibiting workers from wearing visible, conspicuous or large-scale political, philosophical or religious signs in the workplace – Direct discrimination – None – Indirect discrimination – Female worker prohibited from wearing an Islamic headscarf – Customers’ wishes that the undertaking pursue a policy of neutrality – Entitlement to wear small, visible signs – Article 8(1) – National provisions more favourable to the protection of the principle of equal treatment – Freedom of religion under Article 10 of the Charter of Fundamental Rights of the European Union – National constitutional provisions protecting the freedom of religion)


Against that background, I would note that, if a difference in treatment is not to constitute indirect discrimination it must be justified by objective factors which are also unrelated to any discrimination on grounds of sex.   As stated above,   the Court finds that to be particularly the case where the means chosen reflect a legitimate <mask> objective of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so.   Accordingly, first, it is for the Member State to prove that the legislation at issue reflects a legitimate objective and that the objective is unrelated to any discrimination on grounds of sex and, second, it is for the referring court to determine whether and to what extent the legislative provision concerned is justified by such an objective factor, while the Court has jurisdiction to provide guidance, based on the documents in the file of the case in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment.


In Griesmar, the Court interpreted Article 6(3) of the Agreement on <mask>   in a case concerning a service credit for children, which was awarded to female civil servants under an occupational retirement scheme. The Court found that that measure did not come within the positive action measures envisaged by Article 6(3) of the Agreement on Social Policy. The measure did not appear ‘to be of a nature such as to offset the disadvantages to which the careers of female civil servants are exposed by helping those women in their professional life’. The Court noted that, ‘on the contrary, that measure is limited to granting female civil servants who are mothers a service credit at the date of their retirement, without providing a remedy for the problems which they may encounter in the course of their professional career’.   This was confirmed in Leone,   as well as in several Treaty infringement judgments concerning certain advantages conferred on female civil servants regarding retirement age and the number of years of service required for retirement.


See, in particular, communications COM(93) 600 final of 14 December 1993 concerning the application of the Agreement on <mask> presented by the Commission to the Council and to the European Parliament; COM(1998) 322 final of 20 May 1998, ‘Adapting and promoting the social dialogue at community level’; and COM(2002) 341 final of 26 June 2002, ‘The European social dialogue, a force for innovation and change’.


That provision, which seeks to reconcile the Member States’ interests in using certain undertakings as an instrument of economic or <mask> with the European Union’s interest in ensuring compliance with the rules on competition and the preservation of the unity of the internal market (judgments of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 28, and of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 31), must be interpreted taking account of the clarifications in Protocol (No 26) on Services of General Interest (OJ 2016 C 202, p. 307) and, having regard to the field at issue in the present case, in Protocol (No 29) on the System of Public Broadcasting in the Member States (OJ 2016 C 202, p. 311) (judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 36).


In sum, combating a housing shortage and seeking to ensure the availability of sufficient and affordable (long-term) housing (in particular in large cities), as well as the protection of the urban environment, are valid justifications for the establishment of authorisation schemes broadly based on <mask>. Such reasons can equally be invoked to justify the criteria of an authorisation scheme.


Finally, it should be pointed out that, in paragraph 63 of the judgment under appeal, the General Court held that the interpretation advanced by the applicants would mean that, when management and labour do not make a joint request seeking the implementation of an agreement at EU level, the social partners and the Member States are obliged to implement that agreement at their level in accordance with their own procedures and practices, which would be contrary to the intention of the 11 Member States that were signatories to the Agreement on <mask> concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britain and Northern Ireland (OJ 1992 C 191, p. 91). Whilst EPSU asserts, in the appeal, that the General Court misinterpreted the factual context as to what EUPAE agreed, that argument is not substantiated in any way and it also does not call into question the General Court’s finding, in paragraph 63 of the judgment under appeal, in relation to Declaration No 2 annexed to that agreement.


(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria)) (Reference for a preliminary ruling – <mask> – Article 157 TFEU – Protocol (No 33) concerning Article 157 TFEU – Equal pay for male and female workers – Limitation of the temporal effects – Directive 2006/54/EC – Equal opportunity and equal treatment of men and women in matters of employment and occupation – Articles 5 and 12 – Prohibition of any indirect discrimination on grounds of sex – Occupational social security schemes – Retirement pensions of national civil servants – Proportion of men in the category receiving the highest pensions – Legislation providing for an annual adjustment of retirement pensions – Increase on a reducing scale that is precluded entirely above a certain pension amount – Justifications)


It is therefore necessary to determine whether those reasons are objective and unrelated to any discrimination on grounds of sex. According to the Court, that is particularly the case where the means chosen reflect a legitimate <mask> objective of the legislation at issue, are appropriate to achieve that aim and are necessary in order to do so.   Moreover, such factors can be considered appropriate to achieve the stated aim only if they genuinely reflect a concern to attain that aim and are pursued in a consistent and systematic manner.


First, in the context of another measure of EU <mask>, namely Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses,   the Court has interpreted narrowly the circumstances in which public undertakings are precluded from the scope of that directive for non-engagement in ‘economic activities’, and held that such circumstances are confined to ‘reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities’.   The fact that the EIGE is a public authority does not in itself prevent the EIGE from falling within the parameters of Article 1(2) of Directive 2008/104 as a ‘user undertaking’.   As can be seen from the discussion below in points 67 and 68, on the EIGE’s tasks and areas of activity (see, respectively, Articles 3 and 4 of Regulation No 1922/2006), along with its objectives (Article 2), the EIGE cannot be considered to be engaging in activities which fall within the exercise of public powers.


Accordingly, the legislation at issue in the main proceedings, to the extent that it pursues an objective of guaranteeing air traffic safety, as is explicitly apparent from the judgment in Prigge and Others,   cannot be justified on the basis of Article 6(1) of Directive 2000/78. Likewise, since the aim of protecting national security is not a <mask> aim, it cannot be a legitimate aim within the meaning of that article.


(Reference for a preliminary ruling – <mask> – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Principle of non-discrimination – Objective reasons justifying different treatment of fixed-term workers – Directive 98/59/EC – Collective redundancy – National legislation on the protection to be afforded to a worker dismissed as part of an unlawful collective redundancy – Application of a less advantageous protection system to fixed-term contracts concluded before its entry into force and converted into contracts of an indefinite duration after that date)


In its judgment of 17 June 1998, UEAPME v Council,   the Court of First Instance held the action to be inadmissible, finding that the Commission and the Council had properly taken the view that the collective representativeness of the signatories to the framework agreement was sufficient in relation to that agreement’s content for its implementation at Community level by means of a Council measure, and that the applicant had not succeeded in showing that it was entitled to require the Council to prevent that implementation.   Nothing in the case which gave rise to that judgment suggests that the Commission’s power to propose the implementation of an agreement concluded between the social partners to the Council is limited solely to reviewing the legality of the agreement and the representativeness of management and labour. On the contrary, an examination of the Court of First Instance’s analysis of the provisions that are now Articles 154 and 155 TFEU   shows that the onus is on the Commission, when it receives a joint request from management and labour to implement at EU level an agreement which they have concluded, to conduct an overall assessment of the democratic representativeness of that agreement, since the Commission must act in conformity with the principles governing its action in the field of <mask>.   It follows from that judgment that, contrary to what EPSU claims, the legality of the agreement and the representativeness of the social partners are only part of the picture to be considered by the Commission when determining whether it is appropriate to propose to the Council that an agreement concluded between the social partners be implemented at EU level. However, it cannot be inferred from the need for those two reviews that the Commission is deprived of the possibility of examining other issues relating to the appropriateness of implementing that agreement. Since the Agreement on social policy,   which was interpreted in the case giving rise to that judgment, is reproduced almost verbatim by the current Articles 154 and 155 TFEU, the Court of First Instance’s systematic interpretation in that judgment is still relevant and supports the systematic interpretation proposed in this Opinion.


I consider that the Commission has made out its first complaint, principally because of Poland’s overly prescriptive interpretation of the requirements, set in the Court’s case-law, for a pension scheme to be categorised as one meeting considerations of <mask>, and therefore governed by Directive 79/7 as a measure appertaining to social security, rather than as one concerning ‘pay’ under Article 157 TFEU, and governed by the prohibitions in this article and directives governing equal pay, here Directive 2006/54.


In sum, excluding social security from the scope of Article 157(4) TFEU would mean that Directive 79/7 would be the only specific instrument of secondary law in the field of <mask> implementing the EU principle of equality between women and men that is excluded from the substantive approach to equality heralded by Article 157(4) TFEU as the general ‘positive action’ provision on grounds of sex.


(Reference for a preliminary ruling – <mask> – 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 non-discrimination – 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)


(Appeal – Law governing the institutions – <mask> – Articles 154 and 155 TFEU – Social dialogue between management and labour at EU level – Informing and consulting civil servants and employees of central government administrations of the Member States – Agreement concluded between the social partners – Joint request of the signatories to that agreement seeking its implementation at EU level – Refusal of the European Commission to submit a proposal for a decision to the Council of the European Union – Standard of judicial review – Obligation to state reasons for the decision refusing to submit the proposal)


In that regard, the INSS and the Spanish Government argue that a proportional reduction in the retirement pension in cases of part-time work constitutes the expression of a general <mask> objective pursued by the national legislature, since that correction is essential within a social security system that relies on contributions. Such a reduction must be made in the light of the principle of contribution and the principle of equal treatment of part-time and full-time workers and is objectively justified by the fact that, in cases of part-time work, the pension is the counterpart of less work carried out and a smaller contribution to the system.


The General Court has already held that the Commission must act in conformity with the principles governing its actions in the field of <mask>. As both the applicants and the Commission have correctly stated, it is for the Commission to verify inter alia whether the signatories to the agreement in question are representative (see, by analogy, the judgment of 17 June 1998, UEAPME v Council, T‑135/96, EU:T:1998:128, paragraphs 85 and 88). Similarly, the parties rightly agree that the Commission can and must verify the legality of the clauses of an agreement concluded by management and labour before proposing its implementation by a decision of the Council.


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


It is in respect of this phase of determining whether there is indirect discrimination, that is to say, examination of the objective grounds of justification, that academic commentators have expressed reservations about the review exercised by the Court. According to those observers, that review appears to be permissive wherever it is argued that the benefit concerned is justified by legitimate <mask> objectives. See, among others, Pennings, F., European Social Security Law, Intersentia, Antwerp, Oxford and Portland, 2010, pp. 322-327.


The legislation at issue in the present case would thus be justified in particular if the referring court were to find that it reflects a legitimate <mask> objective, is appropriate to achieve that objective and is necessary in order to do so, it being understood that it can be considered appropriate to achieve the stated aim only if it genuinely reflects a concern to attain that aim and is pursued in a consistent and systematic manner (see, to that effect, judgment of 24 September 2020, YS (Occupational pensions for managerial staff), C‑223/19, EU:C:2020:753, paragraph 56 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Principle of equal treatment in employment and occupation – Directive 2000/78/EC – Article 6(1) – Charter of Fundamental Rights of the European Union – Article 21 – Prohibition of all discrimination on the basis of age – National legislation setting 50 years of age as the age limit for access to the profession of notary – Justification)


Furthermore, in so far as both the <mask> within a parent company and the group policy established by that company may have an impact on the social policy and strategy of the subsidiaries in that group, a strike set in motion by the staff of an operating air carrier in solidarity with the strike observed by the staff of the parent company of which that carrier is a subsidiary cannot be regarded as an event which is not inherent in the normal exercise of the latter’s activity. As the European Commission remarked in its written observations, it is neither out of the ordinary nor unforeseeable that labour disputes may extend to different parts of a group of undertakings during collective bargaining.


However, as the Advocate General stated in point 44 of her Opinion, it is apparent from recital 1 of that directive that the directive is designed to ensure full compliance with Article 31 of the Charter of Fundamental Rights of the European Union, paragraph 1 of which establishes in general terms the right of every worker to working conditions that respect his or her health, safety and dignity. The Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) indicate, in that regard, that the expression ‘working conditions’ is to be understood in accordance with Article 156 TFEU. However, that provision merely refers, without any further definition, to ‘working conditions’ as being one of the areas of the European Union’s <mask> in which the Commission may intervene to encourage cooperation between Member States and facilitate the coordination of their action. In the light of the objective of Directive 2008/104 to protect the rights of temporary agency workers, that lack of precision supports a broad interpretation of the concept of ‘working conditions’.


(Request for a preliminary ruling — <mask> — Equal treatment of men and women in matters of pay and social security — Directive 2006/54/EC — Occupational pension provision — Special pensions — Occupational pensions in the form of a direct defined benefit pension from the employer — Withholding of a pension security contribution — Lack of increase in special pensions — Indirect discrimination against men — Directive 2000/78/EC — Age discrimination — Charter of Fundamental Rights of the European Union — Article 20 — Article 21 — Prohibition of discrimination on grounds of sex, property and age)


It is also apparent that that national legislation does not give rise to measures which would go beyond what is necessary to achieve the objectives pursued. Such legislation precludes access to a pension only to those persons who voluntarily intend to take early retirement, but for whom the pension amount would entail a cost to the national social security scheme in so far as it would give rise to a payment, to them, of a pension supplement. Furthermore, it is apparent from the file submitted to the Court that that exclusion can apply only in a situation where the start of the worker’s early retirement follows a deliberate decision of that worker, and not for a reason that is not attributable to that worker, for example in the event of corporate restructuring. Moreover, as the Commission has pointed out in its written observations, the national legislature could not have made a different legislative choice, consisting of a derogation from the guarantee to receive a minimum pension in the event of voluntary early retirement, without undermining the <mask> objective pursued by that guarantee, as mentioned in paragraph 35 above.


That would be the case where the measures chosen reflect a legitimate <mask> objective of the Member State whose legislation is at issue, they are appropriate to achieve the objective pursued by that Member State and they are necessary for that purpose (see, to that effect, judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 32 and the case-law cited).


Second, the interpretation advanced by the applicants would mean that, when management and labour do not make a joint request seeking the implementation of an agreement at EU level, the social partners and the Member States would be obliged to implement that agreement at their level in accordance with their own procedures and practices. Such a consequence, which is moreover not referred to by the applicants, would be contrary to the intention of the 11 Member States that were signatories to the Agreement on <mask>. It follows from Declaration No 2, annexed to that agreement, that by concluding the agreement the Member States concerned did not intend to commit themselves to apply directly the agreements concluded at EU level between management and labour or to lay down the rules for the implementation of those agreements.


(Request for a preliminary ruling from the Østre Landsret (High Court of Eastern Denmark)) (Reference for a preliminary ruling – <mask> – Directive 2000/78/EC – Principle of equal treatment in employment and occupation – Prohibition of discrimination on grounds of age – Article 3(1)(a) and (d) – Scope – Post of elected sector convenor of an organisation of workers – Statutes of that organisation under which only members under the age of 60 or 61 on the date of the election are eligible to stand as sector convenor)


In that regard, while budgetary considerations may underlie a Member State’s choice of <mask> and influence the nature or scope of the employment protection measures which it wishes to adopt, they cannot in themselves constitute an aim pursued by that policy (see, to that effect, judgment of 8 October 2020, Universitatea Lucian Blaga Sibiu and Others, C‑644/19, EU:C:2020:810, paragraph 53 and the case-law cited).


Furthermore, the General Court was correct in holding that the interpretation put forward by the applicants would result in management and labour having the power to compel the Commission to act in the field of <mask> whereas Article 225 TFEU merely grants the Parliament the right to request the Commission to submit to the Council ‘any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties’ and, if the Commission does not submit a proposal, the right to be informed by it of the reasons. Similarly, under Article 241 TFEU, the Council may merely request the Commission to undertake any studies the Council considers desirable for the attainment of the common objectives and to submit to it any appropriate proposals, and it has the right, if the Commission does not submit a proposal, to be informed by it of the reasons. This conclusion cannot be called into question by EPSU’s line of argument according to which the social partners negotiate, draft and agree the text of the agreement concerned autonomously and the Parliament always participates in such a process since the Commission is required to inform it.


(Appeal – Law governing the institutions – <mask> – Articles 154 and 155 TFEU – Social dialogue between the social partners at EU level – Information and consultation of the social partners – Agreement concluded by the social partners – Information and consultation of civil servants and employees of central government administrations of Member States – Refusal by the Commission to submit a proposal for a decision to implement the agreement to the Council – Classification of measures arising from the implementation procedure – Commission’s discretion – Extent of judicial review – Obligation to state reasons for the refusal)


In that regard, it is apparent from the documents available to the Court and from the replies to the Court’s questions that the Italian Government considers that the less favourable treatment of a worker in the situation of the applicant in the main proceedings is justified by the <mask> objective pursued by Legislative Decree No 23/2015, which is to encourage employers to employ workers on a permanent basis. Treating the conversion of a fixed-term contract into a contract of indefinite duration like a new recruitment is, it is argued, justified in the light of the fact that the worker concerned obtains, in exchange, a form of stability of employment.


(Reference for a preliminary ruling – <mask> – Directive 2000/78/EC – Principle of equal treatment in employment and occupation – Prohibition of discrimination on grounds of age – Public-sector employees placed on reserve until the termination of their contract of employment – Employment relationship ending when workers satisfy the conditions to receive a full pension – Article 6(1) – Reduction of public-sector wage costs – Legitimate employment policy objective – Situation of economic and financial crisis)


In that regard, it should be pointed out that the findings set out by the General Court in paragraph 74 of the judgment under appeal flow specifically from the analysis carried out by it, in paragraphs 71 to 73 of that judgment, as to the respective roles of the institutions and the social partners in the separate stages – provided for in Articles 154 and 155 TFEU – of consultation, negotiation and implementation at EU level of agreements concluded in the field of <mask>.


(Request for a preliminary ruling from the Juzgado de lo Social nº 26 de Barcelona (Social Court No 26, Barcelona, Spain)) (Reference for a preliminary ruling – <mask> – Equal treatment for men and women in matters of social security – Directive 79/7/EEC – Article 4(1) – Calculation of benefits – Refusal to award two permanent incapacity allowances under the same social security scheme – The award of two or more incapacity benefits obtained under different social security schemes – Relevant comparators)


(Reference for a preliminary ruling — <mask> — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(2)(b)(ii) and Article 5 — Prohibition of any discrimination based on a disability — Worker particularly susceptible to occupational risks within the meaning of national law — Existence of a ‘disability’ — Dismissal for objective reasons based on criteria of productivity, multi-skilling in the undertaking’s posts and absenteeism — Particular disadvantage for disabled persons — Indirect discrimination — Reasonable accommodation — Individual who is not competent, capable and available to perform the essential functions of the post concerned)


As the Commission correctly observes, the imperative formulation referred to in paragraph 58 above arose during the drafting of the Agreement on <mask>, namely at the time when, in accordance with the proposal formulated by management and labour in the Agreement of 31 October 1991, the two procedures for the implementation of the agreements concluded by management and labour, referred to in paragraph 50 above, were brought within that same sentence. On that occasion the verb in the sentence ceased to relate to the submission by the Commission of proposals for the implementation of those agreements at EU level and thereafter related to the implementation of those agreements in accordance with one or other of the two procedures referred to in paragraph 50 above. In those circumstances, the imperative formulation referred to above may have the function of expressing the exclusivity of those two procedures.


(Reference for a preliminary ruling – <mask> – Directive 1999/70/EC – Framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP – Clause 5 – Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships – Fixed-term employment contracts in the public sector – Successive contracts or extended initial contract – Equivalent legal measure – Absolute constitutional prohibition on conversion of fixed-term employment contracts to contracts of indefinite duration – Obligation to interpret in conformity with EU law)


(Reference for a preliminary ruling – <mask> – Directive 2003/88/EC – Organisation of working time – Concept of ‘working time’ – A worker’s break, during which he or she must be available to his or her employer to be called out within two minutes – Obligation to uphold the legal rulings of a higher court that do not comply with EU law – Primacy of EU law)


However, in my view, that is not the case here. The CEPA is above all an instrument designed to strengthen economic and trade cooperation between the parties, with a view to promoting sustainable development,   which incorporates environmental   and social constraints, respect for human rights and fundamental freedoms   as well as human health   into the economy. In addition to the provisions concerning trade in Title VI, a wide range of areas of cooperation is covered by the CEPA, relating to highly diverse socio-economic sectors, from energy (Chapter 2 of Title V) to the environment and climate action (Chapters 3 and 4 of Title V), industrial policy (Chapter 5 of Title V), cooperation in financial services (Chapter 7 of Title V), tourism (Chapter 9 of Title V), agriculture and fisheries (Chapters 10 and 11 of Title V), research (Chapter 14 of Title V), <mask> (Chapter 15 of Title V), education and culture (Chapters 17 and 18 of Title V), sport (Chapter 20 of Title V) and civil protection (Chapter 23 of Title V).


(Reference for a preliminary ruling – <mask> – Directive 1999/70/CE – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4(1) – Principle of non-discrimination – Public sector education – National provision granting additional remuneration only to teachers employed for an indefinite duration as established public officials – Exclusion of teachers employed under a fixed-term contract governed by public law – Concept of ‘objective grounds’ – Characteristics inherent in the status of established public officials)


It is true that considerations of <mask>, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the last salary (judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraph 45, and of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 23).


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


As regards paragraph 82 of the judgment under appeal, in so far as the applicants submitted that management and labour have the power to compel the Commission to submit to the Council a proposal for a decision implementing their agreements at EU level, the General Court was correct in pointing out that, if such an interpretation were adopted, management and labour would exert a greater influence over the content of legal acts adopted in relation to <mask> on the basis of Articles 154 and 155 TFEU than that which may be exerted by the Parliament, which, pursuant to Article 155(2) TFEU, must merely be informed before legal acts are adopted.


(Reference for a preliminary ruling — <mask> — Directive 2010/18/EU — Revised Framework Agreement on parental leave — National legislation making the granting of parental leave conditional on a reduction in working time, with a proportional reduction in pay — Shift work with variable hours — Request of the worker to perform his work at a fixed schedule to care for his minor children — Directive 2006/54/EC — Equal opportunities and equal treatment of men and women in employment and occupation — Indirect discrimination — Partial inadmissibility)


75. Fifth, the referring court states that, in the case of one of the appellants in the main proceedings, his retirement pension, following the entry into force of the legislation at issue, has seen a 25% reduction as compared with the correct adjustment for inflation since he is retired. In their written observations, the appellants in the main proceedings argue that, as civil servants whose relationship with their employer is an employment relationship governed by public law, the crucial factor is that they worked in return for pay which, today, has a posteriori been adjusted downwards. However, in my view, that situation is covered by domestic law and by the <mask> which the Member State intends to pursue. EU law does not require that the amount of a retirement pension keeps pace with the rate of inflation and remains stable in real terms. With regard to Article 157 TFEU and Directive 2006/54, in particular, the interpretation of which is requested, those provisions concern merely the application of the principle of equal treatment for men and women, as part of which, as has been stated, closing the gap between the levels of retirement pensions funded by the State is a legitimate social-policy objective and in connection with which the Member States have a broad margin of discretion.


Second, EPSU contends that, in paragraphs 69 and 89 of the judgment under appeal, the General Court focused on the nature of the stage of implementation of the agreement at issue on the basis of Article 155(2) TFEU and on the classification of the act adopted under that provision, rather than on the ‘substantive consequences’ of that act. Furthermore, it contends that the conclusion drawn by the General Court in paragraph 96 of the judgment under appeal is inconsistent (i) with measures adopted under Article 155(2) TFEU maintaining their legislative nature and (ii) with the case-law of the Court of Justice relating to directives adopted in the field of <mask>.


(Reference for a preliminary ruling – <mask> – Directive 2000/78/EC – Principle of equal treatment in employment and occupation – Prohibition of discrimination on grounds of age – Workers placed under a labour reserve system until termination of their contract of employment – Wage reduction and reduction or loss of severance pay – System applicable to public-sector workers close to full-time retirement – Reduction of public-sector wage costs – Article 6(1) – Legitimate social policy objective – Economic crisis)


It should be noted that the first round of consultation provided for in Article 154(2) TFEU is of a general nature and does not prejudge the Commission’s subsequent decision whether or not to submit a specific proposal in the <mask> field. Thus, that consultation of management and labour does not affect the Commission’s discretion when it comes to submitting proposals to the Council for the adoption of legal acts. Under Article 154(3) TFEU, the Commission is required to consult management and labour a second time only if it ‘considers Union action advisable’.


(Reference for a preliminary ruling — <mask> — Directive 96/34/EC — Framework agreement on parental leave — Clause 2.6 — Worker employed full-time and for indefinite duration on part-time parental leave — Dismissal — Compensation payment for dismissal and redeployment leave allowance — Method of calculation — Article 157 TFEU — Equal pay for male and female workers — Part-time parental leave taken primarily by female workers — Indirect discrimination — Objective factors unrelated to any sex discrimination — None)


(References for a preliminary ruling — <mask> — Directive 2001/23/EC — Safeguarding of employees rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses — Articles 3 and 5 — Directive 2008/94/EC — Safeguarding the rights of employees in the event of insolvency of employers — Article 8 of Directive 2008/94 — Supplementary pension benefits — Whether transferees responsible for supplementary pension benefits of employees of an undertaking transferred from an insolvent transferor)


(Reference for a preliminary ruling — <mask> — Protection of the health and safety of workers — Organisation of working time — Directive 2003/88/EC — Daily rest — Weekly rest — Maximum weekly working time — Article 31(2) of the Charter of Fundamental Rights of the European Union — Directive 89/391/EEC — Health and safety of workers in the workplace — Obligation for undertakings to set up a system to measure daily working time)


Articles 154 and 155 TFEU thus govern different aspects of the same decision-making process designed to develop <mask> measures, as evidenced by the reference to the latter provision in the former. Although, from a technical perspective, those two provisions constitute two separate legal bases, I take the view that they should be examined together in so far as they may lead to the adoption of the same measure. It follows from the combination of those provisions that, despite the specific features mentioned above, they do not have the effect of depriving the Commission of its ‘traditional’ role in social policy, which is reflected, in particular, by the exercise of its power of initiative by means of proposals submitted to promote the general interest of the European Union, within the meaning of Article 17(1) TEU.


111 Regarding, in the fourth place, the argument relating to the financial interests of the State, it must be borne in mind that the Court has previously held that, whilst budget considerations may underlie a Member State’s choice of <mask> and influence the nature or scope of the measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and, therefore, cannot justify the lack of any measure preventing the misuse of successive fixed-term employment contracts as referred to in Clause 5(1) of the framework agreement (judgment of 25 October 2018, Sciotto, C‑331/17, EU:C:2018:859, paragraph 55).


In the specific field of <mask>, one of the aims of Title X of Part Three of the FEU Treaty, as the Advocate General has noted in point 73 of his Opinion, is to promote the role of the social partners and to facilitate dialogue between them, while respecting their autonomy, and Article 154(1) TFEU provides that the Commission is to have inter alia the task of promoting the consultation of management and labour at EU level. Furthermore, in the specific context of implementation of agreements concluded between management and labour at EU level, Article 155(2) TFEU has conferred on management and labour a right comparable to that possessed more generally, under Articles 225 and 241 TFEU respectively, by the Parliament and the Council to request the Commission to submit appropriate proposals for the purpose of implementing the Treaties.


Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that it does not preclude national legislation which, in the event of voluntary early retirement of a worker enrolled in the general social security scheme, makes that worker’s right to an early retirement pension subject to the condition that the amount of that pension is at least as much as the minimum pension amount to which that worker would be entitled at the age of 65, even if that law puts female workers at a particular disadvantage, compared with male workers, which is for the referring court to determine, provided, however, that that consequence is justified by legitimate <mask> objectives which are unrelated to any discrimination based on sex.


I recall that Directive 89/391 was adopted on the basis of Article 118 A TEC and that Directive 2003/88 was adopted on the basis of Article 137 TEC, which had replaced Article 118 A and which itself became Article 153 TFEU. Like its predecessors, that provision authorises the Union to adopt minimum requirements to protect the health and safety of ‘workers’ in general; furthermore, as is apparent from point 43 of this Opinion, although defence comes within the competence of the Member States, that does not prevent the Union from having, in accordance with the power conferred on it in particular by that provision, a <mask> encompassing a priori all workers including those employed in that sector, of which military personnel form part.


(Reference for a preliminary ruling – <mask> – Directive 2006/54/EC – Equal opportunities and equal treatment of men and women in employment and occupation – Articles 14 and 28 – National collective agreement granting the right to leave following the statutory maternity leave for female workers who bring up their children on their own – Exclusion of male workers from the right to that leave – Protection of female workers as regards both the consequences of pregnancy and the condition of maternity – Conditions under which applicable)


See the Explanatory memorandum to the Commission’s proposal for a directive, COM(74) 351, final/2 of 21 June 1974, pages 2 to 3 and 5. In the 1970s the transfer of undertakings, collective redundancies and employer insolvency were the three key <mask> issues first regulated by the European Union outside the sphere of gender equality — see Council Resolution of 21 January 1974 concerning a social action programme (OJ 1974 C 13, p. 1).


In addition, the INSS claims in its observations that the pension supplement at issue is justified on grounds of <mask>. To that end, the INSS provides numerous statistical data which reveal a difference between the pension payments of men and those of women, and, on the one hand, between the pension payments of childless women or those who have had one child and, on the other, the payments of women who have had at least two children.


“overriding reasons relating to the public interest” means reasons recognised as such in the case law of the Court of Justice, including the following grounds: public policy; public security; public safety; public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; <mask> objectives and cultural policy objectives;


(Request for a preliminary ruling from the Tribunal du travail francophone de Bruxelles (Brussels Labour Court (French-speaking), Belgium)) (Reference for a preliminary ruling – <mask> – Directive 2000/78/EC – Equal treatment in employment and occupation – Discrimination on the grounds of religion or belief – Internal neutrality rule of a private undertaking – Prohibition on the wearing of any visible political, philosophical or religious signs in the workplace – Religious clothing obligations – Article 8 – More favourable provisions in national law to the protection of the principle of equal treatment – Margin of discretion of the Member States – Religion and religious beliefs as an autonomous ground of discrimination)


The Court fundamentally recognises maintaining the functionality and ensuring the financial balance of contribution-financed schemes as legitimate <mask> objectives.   It also grants the Member States a broad discretion with regard to the aims that they wish to pursue in the field of social and employment policy.   However, according to settled case-law, they must apply the chosen means in a consistent and systematic manner when pursuing those objectives.


17 The Court has held that the term ‘pay’ within the meaning of Article 157 TFEU covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of <mask>. Accordingly, that concept cannot be extended to encompass social security schemes or benefits – such as retirement pensions – which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employee (see judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 20 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 5 – Successive fixed-term employment contracts within the public health service – Abuse – Concept of fixed and permanent needs – Measures to penalise the misuse of fixed-term contracts – Conversion into a regulated employment relationship of indefinite duration – Powers of national courts)