In the Neurim judgment, the Court gave a teleological interpretation of Regulation No 469/2009. That interpretation undoubtedly lends flexibility to the SPC system and, in all likelihood, responds more fully to the current needs of pharmaceutical research, which seem to be different from those which led to the adoption of Regulation No 1768/92. There is no doubt that the development of subsequent medical uses of known substances plays a significant role in the context of these changes, a large proportion of the pharmaceutical research being focused on that sector at present, as Santen points out in its written observations.   In addition, the interpretation adopted in the Neurim judgment permits sufficient legal protection to be granted to any innovation that increases the therapeutic efficacy of known active ingredients or uses them to treat new pathologies, in keeping with the objective of the continuing improvement in <mask> which is also among those pursued with the creation of the SPC.


Alongside Regulation No 882/2004, rules on official controls are found in Regulation No 854/2004, which is part of the ‘EU food hygiene package’ – also comprising Regulations No 852/2004 and No 853/2004 – with a view to consolidating, simplifying and updating EU legislation on food hygiene requirements.   Regulation No 852/2004 concerns general rules on the hygiene of foodstuffs,   while Regulation No 853/2004 establishes specific rules on the hygiene of food of animal origin,   their main objective being to secure a high level of consumer protection with regard to food safety.   Article 5 of Regulation No 853/2004 assumes special importance here, since it generally prohibits operators from placing on the market a product of animal origin, such as meat, unless it carries a health mark applied in accordance with Regulation No 854/2004.   That regulation lays down specific rules on official controls regarding meat and other animal products.   As indicated by recital 4 of Regulation No 854/2004, one of its main objectives is to ensure the protection of <mask> and, according to recitals 8 and 9 thereof, official controls on meat are necessary to verify that operators comply with hygiene rules and, in view of their specific expertise, official veterinarians are charged with carrying out inspections and other tasks at slaughterhouses.


In that regard, it must be observed, in the first place, that this reference for a preliminary ruling concerns the interpretation of Regulation No 2201/2003 which was adopted on the basis, inter alia, of Article 61(c) EC, now Article 67 TFEU, which is within Title V of Part Three of the FEU Treaty, on the <mask>. Consequently, it may be dealt with under the urgent preliminary ruling procedure.


the applicant refuses to comply with an obligation to have his or her fingerprints taken in accordance with Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes[, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the <mask> (OJ 2013 L 180, p. 1)]; or


33. It is apparent from recital 1 of Regulation No 2201/2003 that it contributes to creating an <mask>, in which the free movement of persons is ensured. Accordingly, with the objective of ensuring legal certainty, Chapters II and III of the regulation lay down rules on jurisdiction and on recognition and enforcement of judgments concerning the dissolution of matrimonial ties. (9)


(Reference for a preliminary ruling — <mask> — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Conditions of detention — Article 16(1) — Detention in prison accommodation for the purpose of removal — Third-country national who poses a serious threat to public policy or public security)


As Advocate General Bot observed in his Opinion in Beshkov,   that requirement ‘is clearly linked to the attainment of the <mask> and thereby to mutual recognition, which requires not only that the foreign decision be taken into account but also that it be complied with’.   Framework Decision 2008/675 thus contributes, as the Court has held, ‘to strengthening mutual trust within the European area of justice, in that it encourages a judicial culture in which previous convictions handed down in another Member State are in principle taken into account’.


To me, the application of such statements to potential requests for extradition from third States is uncompromisingly simple. The logic must be one of acting as ‘a block’. A decision barring any further prosecution for the same act in one Member State must have the same effects elsewhere within one and the same <mask>, in the same way that it would have within one and the same domestic legal system.


It was only with the entry into force of the Treaty of Lisbon,   or to be more precise, five years after that entry into force,   i.e. primary law as it currently stands, that the Court obtained full jurisdiction with regards to the interpretation of the Framework Decision. As is well known, that treaty did away with the three pillar structure and constitutionalised   – in the sense that now fundamental, supranational principles apply in this domain, such as the ordinary legislative procedure   and the full jurisdiction of the Court   – the <mask>.


In that context, that framework decision seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an <mask>, and has as its basis the high level of trust which must exist between the Member States (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C‑314/18, EU:C:2020:191, paragraph 38 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Directive 2008/115/EC – Common standards and procedures in Member States for returning illegally staying third-country nationals – Article 5(a), Article 6(1) and (4), Article 8(1) and Article 10 – Return decision issued against an unaccompanied minor – Best interests of the child – Obligation for the Member State concerned to be satisfied, before the adoption of a return decision, that that minor will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return – Distinction on the basis solely of the criterion of the age of the minor in order to grant a right of residence – Return decision not followed by removal measures)


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


In the procedural field, urgency is found in the situation where serious and irreparable damage could ensue if the situation is not swiftly remedied, and it allows courts to adopt certain measures under an expedited procedure.   In EU law, and in particular in matters relating to the <mask>, the urgent preliminary-ruling procedure thus enables cases to be considered with a ‘minimum of delay’ where the individual concerned is held in custody.


(Reference for a preliminary ruling – <mask> – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – Detention for the purpose of removal – Article 16(1) – Concept of ‘specialised detention facility’ – Article 18(1) – Concept of ‘emergency situation’ – National legislation under which detention may, because of an emergency situation, take place in prison accommodation – Scope of the assessment to be carried out by the judicial authority responsible for the detention)


(Reference for a preliminary ruling – <mask> – Asylum policy – Procedure for granting and withdrawing refugee status – Directive 2005/85/EC – Article 25(2) – Grounds for inadmissibility – Rejection by one Member State of an application for international protection as inadmissible due to the earlier grant to the applicant of subsidiary protection in another Member State – Regulation (EC) No 343/2003 – Regulation (EU) No 604/2013)


First, the referring court suggests that the absence of a specific provision, in Framework Decision 2005/214, on the language regime of the decision to be enforced is due to its, by now relatively distant, date of adoption. The referring court submits that the (current) will of the EU legislature on this issue may be inferred from the provisions concerning language requirements that have been included in more recent legal instruments adopted in relation to the <mask>. In particular, the referring court points to the provisions of Directive 2010/64 and Directive 2015/413, which include certain obligations on the authorities of the Member States to provide a translation of the decisions whose enforcement is being sought.


It should be borne in mind that Directive 2003/109 is a key legal instrument within the so-called EU legal migration framework, which is part of the EU’s common immigration policy in the <mask>.   The EU legal migration framework comprises a set of directives which generally regulate the conditions for entry and residence of categories of third-country nationals and their rights following admission in the Member States.   Equal treatment provisions are an important element of those directives, and promote one of the main objectives of EU immigration policy, which is to ensure the fair treatment of third-country nationals residing legally in the Member States.


(Reference for a preliminary ruling – <mask> – Directive 2008/115/EC – Return of illegally staying third-country nationals – Third-country national suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Conditions – Grant of social assistance – Articles 19 and 47 of the Charter of Fundamental Rights of the European Union)


It should be recalled at the outset that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are of fundamental importance in EU law because they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 33 and the case-law cited).


28 The principle of mutual trust between the Member States is, under EU law, of fundamental importance as regards, in particular, the <mask> which the European Union constitutes and which, in accordance with Article 67(2) TFEU, ensures the absence of internal border controls and frames a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. In that field, the principle of mutual trust requires each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, judgment of 19 March 2019, Ibrahim and Others, C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 84 and the case-law cited).


Finally, it is apparent from recent case-law of this Court that Member States have different approaches to the scope of the principle of legality.   Those different approaches may also resonate in their consideration of the different conditions for the application of instruments of judicial cooperation in the <mask>, in particular the Framework Decision. An interpretation of the provision at issue such as the one advocated by the Spanish and Belgian Governments and by the Procureur-Generaal (Prosecutor General) would risk coming into conflict with some of the national conceptions of the legality principle in a field where the Framework Decision itself does not provide an unequivocal answer.


In that regard, it should be stated, first of all, that the present reference for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which comes within the sectors covered by Title V of Part Three of the TFEU on the <mask>. Consequently, this reference can be dealt with under the urgent preliminary ruling procedure.


(Reference for a preliminary ruling – <mask> – Judicial cooperation in civil and commercial matters – Regulation (EU) No 1215/2012 – Chapter II, Section 5 (Articles 20 to 23) – Jurisdiction over individual contracts of employment – Contract of employment concluded, in Member State A, between a worker domiciled in that State and an employer domiciled in Member State B, for work to be performed in Member State B – Unperformed contract of employment – Action brought by the worker against the employer to recover contractual remuneration – Exclusion of the rules of jurisdiction existing in the national law of the court seised – Article 21(1)(b)(i) – Concept of ‘place where or from where the employee habitually carries out his work’ – Place where the worker was to carry out his work as agreed in the contract)


(Reference for a preliminary ruling — <mask> — Judicial cooperation in criminal matters — Framework Decision 2005/214/JHA — Recognition and enforcement of financial penalties imposed on legal persons — Obligation to interpret national law in conformity with EU law — Scope — Concept of ‘legal person’ — Financial penalty imposed on an entity with no legal personality)


The creation of an <mask> within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the [European investigation order (EIO)] would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.


In accordance with Articles 1, 2 and Article 4a(1) of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the <mask>, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the United Kingdom and Ireland are not taking part in the adoption of this Directive and are not bound by it or subject to its application.’


On possible scenarios regarding judicial review in the <mask> after Brexit, see Curtin, D., ‘Brexit and the EU Area of Freedom, Security’, in F. Fabbrini, The law and politics of Brexit, OUP, Oxford, 2017, pp. 183-200, at pp. 186 and 187, and Weyembergh, A., ‘Consequences of Brexit for European criminal law’, New Journal of European Criminal Law, 2017, pp. 284-299, at pp. 295-296. As regards preliminary references stemming from the UK, see Knaier, R., Scholz, M., ‘Rechtsschutz in Großbritannien und der EU nach dem “Brexit”’, Europäisches Wirtschafts- und Steuerrecht, 2018, pp. 10-17, at pp. 15-16. Concerning dispute-settling between the EU and the UK in general, see Fennelly, N. ‘Brexit: legal consequences for the EU. Dispute-settling between the EU and the UK’, 18 ERA Forum, 2018, pp. 493-511.


Such an interpretation is consistent with the objective of facilitating access to justice, guaranteed in particular by the principle of mutual recognition of judicial decisions, which underpins the application of the provisions of the Succession Regulation and which is enshrined in Article 39 of that regulation, thus seeking, in the field of cooperation in civil and commercial matters, to strengthen a simplified and effective system of conflict rules, recognition and enforcement of judicial decisions taken in the context of a succession with cross-border implications, with a view to contributing to the attainment of the objective for the European Union to become an <mask>, founded on the high level of confidence which should exist between the Member States.


As the Court has consistently held, the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly with regard to the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.


(References for a preliminary ruling – <mask> – Community Code on Visas – Regulation (EC) No 810/2009 – Article 32(1) to (3) – Decision to refuse a visa – Annex VI – Standard form – Statement of reasons – Threat to public policy, internal security or public health, or to the international relations of any of the Member States – Article 22 – Procedure of prior consultation of central authorities of other Member States – Objection to the issuing of a visa – Appeal against a decision to refuse a visa – Scope of judicial review – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy)


The principle of mutual recognition on which the European arrest warrant system is based is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised in the European Union, particularly those contained in the Charter. The principle of mutual confidence requires, particularly with regard to the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.


(Reference for a preliminary ruling – <mask> – Directive 2008/115/CE – Return of illegally staying third-country nationals – Parent of an adult child suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Safeguards pending return – Basic needs – Articles 7, 19 and 47 of the Charter of Fundamental Rights of the European Union)


I will examine this position in two steps. First, I set out the conditions for the application of Protocol No 21 as stated in the Court’s case-law, namely that its application depends on the legal basis of the measure in question (A). Secondly, I discuss whether the relevant provisions, namely Article 62(1)(b) and Article 185 of the Withdrawal Agreement and Part Three, Title VII, of the Trade and Cooperation Agreement, in particular Article 632 thereof, should have been based on a competence relating to the <mask> (B.1 and B.2).


(Failure to fulfil obligations — <mask> — Directive 2013/32/EU — National procedure for examining applications for international protection — Article 6 — Effective access — Article 43 — Procedural safeguards — Article 46(5) and (6) — No suspensory effect of appeals brought against administrative decisions refusing to grant refugee status — Directive 2013/33/EU — Article 2(h) — Compulsory placement in transit zones — Definition of ‘detention’ — Directive 2008/115/EC — Article 5, Article 6(1), Article 12(1) and Article 13(1) — Return of illegally staying third-country nationals)


(Reference for a preliminary ruling – Urgent preliminary ruling procedure – <mask> – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility – Article 10 – Jurisdiction in cases of child abduction – Child wrongfully removed to a non-Member State in which it has acquired its habitual residence – Best interests of the child – Retention of jurisdiction, for an unlimited period of time, by the courts of the Member State in which the child was habitually resident immediately before its wrongful removal)


36 As regards the objectives of Directive 2014/41, it is intended, as is apparent from recitals 5 to 8 thereof, to replace the fragmented and complicated existing framework for the gathering of evidence in criminal cases with a cross-border dimension and seeks, by the establishment of a simplified and more effective system based on a single instrument called the EIO, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union to become an <mask>, and has as its basis the high level of trust which must exist between the Member States (see, to that effect, judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders), C‑584/19, EU:C:2020:1002, paragraph 39).


Both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter (see, to that effect, judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 49 and the case-law cited), are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 10 November 2016, Poltorak, C‑452/16 PPU, EU:C:2016:858, paragraph 26 and the case-law cited).


The creation of an <mask> within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.


4 According to recital 1 of Regulation No 2201/2003: ‘The European Community has set the objective of creating an <mask>, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market.’


In the same vein, the references to the ‘historical’ background of Directive 2004/80, included in recitals 3 to 6 and 8, also suggest a larger scope of the directive. Indeed, the instruments referred to in those recitals   were by no means ‘internal market-focused’. On the contrary, those instruments were mainly related to the pursuit of objectives which are more typical of the provisions relating to the <mask> (‘AFSJ’). Accordingly, a directive which aims at protecting, albeit asymmetrically, all victims of crimes in the European Union, regardless of their nationality or residence, would seem more consistent with those objectives.


According to recital 10 of Decision 2017/866, ‘in accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the <mask>, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Decision and are not bound by it or subject to its application’.


In general, the benchmarks of the MCV are linked to and specify the requirement of the rule of law of Article 2 TEU, to which Article 49 TEU makes reference as a precondition for accession. According to Article 49 TEU, only States which respect the values of Article 2 TEU and which are committed to promoting them may apply to become a member of the European Union. The preamble to the MCV Decision emphasises the central role of the rule of law for the Union and, in particular, for the <mask>, and the implied need for all the Member States to have an impartial and independent judicial and administrative system equipped to fight against corruption.


(Reference for a preliminary ruling – Urgent preliminary ruling procedure – <mask> – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Article 10 – Jurisdiction in matters of parental responsibility – Abduction of a child – Jurisdiction of the courts of a Member State – Territorial scope – Removal of a child to a third State – Habitual residence acquired in that third State)


In that regard, it should be stated, in the first place, that this request for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which falls within the fields covered by Title V of Part Three of the FEU Treaty, relating to the <mask>. Consequently, this reference is capable of being dealt with under the urgent preliminary ruling procedure.


Such an interpretation seems also to be more in line with the Court’s case-law on the principles of mutual recognition and mutual trust. The Court has consistently held that those principles require the Member States, ‘particularly as regards the <mask>, … save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’.   Thus, when implementing EU law, Member States may ‘be required to presume that fundamental rights have been observed by the other Member States’.


39 As a preliminary matter, it should be recalled that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 33 and the case-law cited).


Thus, as is apparent from Article 3(2) TEU, within that <mask>, the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls and the prevention and combating of crime. In that context, Framework Decision 2002/584 seeks, inter alia, to prevent the risk of impunity of persons who have committed an offence (see, to that effect, judgments of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 23, and of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C‑220/18 PPU, EU:C:2018:589, paragraph 86).


In that respect, Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an <mask>, and has as its basis the high level of trust which must exist between the Member States (judgment of 26 October 2021, Openbaar Ministerie (Right to be heard by the executing judicial authority), C‑428/21 PPU and C‑429/21 PPU, EU:C:2021:876, paragraph 38 and the case-law cited).


It must be observed, in the first place, that this reference for a preliminary ruling concerns, inter alia, the Agreement on the surrender procedure. The decision by which that agreement was approved on behalf of the European Union was adopted on the basis of Article 82(1)(d) TFEU, read in conjunction with Article 218(6)(a) TFEU. That agreement therefore comes within the areas covered by Title V of Part Three of the FEU Treaty, on the <mask>. This reference for a preliminary ruling can therefore be dealt with under the urgent preliminary ruling procedure.


Contrary to the submissions of Mr Sd and Mr Sn, the reasoning of Advocate General Hogan   with regard to the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)   is not relevant to the present case. The European Union considers concluding that convention with reference to specific powers relating to the <mask>. Advocate General Hogan agrees with that approach.   Under that premiss, the Istanbul Convention squarely falls within the scope of Protocol No 21.


25 In the present case, it is apparent from the order for reference that the cour d’appel de Versailles (Court of Appeal, Versailles) found that the deceased had his last habitual residence in the United Kingdom and not in France. In that regard, it should be noted that, as can be seen from recital 82 of Regulation No 650/2012, the United Kingdom – in accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the <mask>, annexed to the TEU and the TFEU – did not take part in the adoption of that regulation. Moreover, it does not appear that, as at the date of XA’s death, the United Kingdom had made use of the option provided for in Article 4 of that protocol to notify its intention to accept that regulation. At that date, the United Kingdom, even though it was an EU Member State, was thus neither bound by Regulation No 650/2012 nor, as a result, subject to its application. For the purpose of interpreting Article 10 of that regulation, the view should be taken that the jurisdiction provided for in that provision may apply where the deceased had his or her habitual residence in such a Member State that is not bound by that regulation at the time of his or her death. Consequently, provided that the other criteria referred to in that provision are also met, it must be concluded that the situation at issue in the main proceedings is capable of coming within the scope of that provision.


In that connection, it should be pointed out, first, that the present reference for a preliminary ruling concerns the interpretation of Directive 2016/343, which comes under Title V of Part Three of the FEU Treaty on the <mask>. It is therefore amenable to being dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Court’s Rules of Procedure.


In that connection, it should be observed that the present reference for a preliminary ruling concerns the interpretation of Directive 2016/343, which comes under Title V of Part Three of the FEU Treaty on the <mask>. It is therefore amenable to being dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Court’s Rules of Procedure.


The objective set for the Union to become an <mask> leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.


(Reference for a preliminary ruling — <mask> — Judicial cooperation in civil matters — Law applicable to contractual obligations — Exclusion of company law from the scope of the Rome Convention and of Regulation (EC) No 593/2008 (Rome I) — Trust agreement concluded between a professional and a consumer for the management of shares in a limited partnership)


The purpose of the Framework Decision, as is apparent, in particular, from Article 1(1) and (2) and recitals 5 and 7 thereof, is to replace the multilateral system of extradition based on the European Convention on Extradition of 13 December 1957 with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, the system of surrender being based on the principle of mutual recognition. The Framework Decision thus seeks, by the establishment of that simplified and more effective system, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an <mask>, and has as its basis the high level of trust which must exist between the Member States (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the System of Justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 39 and 40).


In that regard, it should be noted that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 191, and judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 43).


It should be noted, in the first place, that these requests for a preliminary ruling concern, inter alia, the interpretation of Framework Decision 2002/584, which falls within the scope of the fields referred to in Title V of Part Three of the FEU Treaty on the <mask>. They may therefore be dealt with under the urgent preliminary ruling procedure.


(Reference for a preliminary ruling — <mask> — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 — Article 5(1) — Jurisdiction in matters relating to a contract — Articles 15 to 17 — Jurisdiction over consumer contracts — Regulation (EC) No 261/2004 — Articles 6 and 7 — Right to compensation in the case where a flight is subject to a long delay — Contract for carriage combining travel and accommodation concluded between the passenger and a travel agency — Action for compensation brought against the air carrier which is not a party to that contract — Directive 90/314/EEC — Package travel)


According to that court, it can also be argued that the return of the person concerned to the executing Member State, as soon as the custodial sentence or detention order has become final, may undermine the objective of seeking, pursuant to Article 67(1) and (3) TFEU, to ensure a high level of protection within an <mask> by measures to combat crime. The referring court observes in this regard that, if the Member State which issues a European arrest warrant for the purposes of criminal proceedings, as the Member State in which the judgment will subsequently be delivered, were to conduct confiscation proceedings in the absence of the person concerned, that Member State might be confronted with practical and evidential problems attributable to that absence, which might compel it to waive such proceedings.


(Reference for a preliminary ruling — <mask> — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(3) — Charter of Fundamental Rights of the European Union — Article 4 — Prohibition of inhuman or degrading treatment — Obligation on the part of the executing judicial authorities to assess the conditions of detention in the issuing Member State — Scope of the examination — Criteria)


It follows that the specific application of the ground for non-execution provided for in Article 4(5) of the Framework Decision must be left to the discretion of the executing judicial authority which, to that end, must have a margin of discretion, allowing it to carry out an examination on a case-by-case basis, taking into consideration all of the relevant circumstances and, in particular, the circumstances in which the requested person was tried in the third State, in order to determine whether the failure to surrender that person would be such as to undermine the legitimate interest of all of the Member States in preventing crime within the <mask>.


(Reference for a preliminary ruling — <mask> — Judicial cooperation in civil matters — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EU) No 1215/2012 — Article 1(1) — Concept of ‘civil and commercial matters’ — Article 7(1) — Special jurisdiction in matters relating to a contract — Concept of ‘matters relating to a contract’ — Claim for payment of annual fees payable by a lawyer to a bar association — Legal obligation freely consented to)


Consequently, the Court has held that it is the legal basis for a measure which determines whether the protocol is to be applied, and not vice versa.   In other words: Protocol No 21 only applies in respect of measures that have been, or should have been, based on a competence derived from Title V of Part Three of the FEU Treaty. Conversely, a measure that touches on the <mask> will not be covered by the protocol if it is not necessary to base it on such a competence.


9. Recitals 5, 6, 10 and 12 of Framework Decision 2002/584 are worded as follows: ‘(5) The objective set for the Union to become an <mask> leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. (6) The [EAW] provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation. … (10) The mechanism of the [EAW] is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [TEU], determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. … (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the [Charter], in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom [an EAW] has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.’


159 In that regard, as stated in recitals 2 and 3 of Decision 2006/928, the <mask> and the internal market are based on the mutual confidence between Member States that their administrative and judicial decisions and practices fully respect the rule of law, which requires the existence in all Member States of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption (judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 159).


The following statements are made in the recitals of Framework Decision 2005/212/JHA. The main motive for cross-border organised crime is financial gain. In order to be effective, therefore, any attempt to prevent and combat such crime must focus on tracing, freezing, seizing and confiscating the proceeds from crime. Differences between Member States’ legislation in this area make that difficult.   Thus, in the conclusions of the Vienna European Council of December 1998,   the European Council called for EU efforts to combat international organised crime to be strengthened in accordance with an action plan on how best to implement the provisions of the Treaty of Amsterdam in the <mask>.   However, the existing instruments in this area have not achieved to a sufficient extent effective cross-border cooperation with regard to confiscation as there are still a number of Member States unable to confiscate the proceeds from all offences punishable by deprivation of liberty for more than one year.   Thus, the aim of the Framework Decision is to ensure that all Member States have effective rules governing the confiscation of proceeds from crime, inter alia, in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.


(Reference for a preliminary ruling – <mask> – Framework Decision 2005/214/JHA – Mutual recognition of financial penalties – Article 5(1) – Offence relating to ‘conduct which infringes road traffic regulations’ – Scope of the offence – Financial penalty imposed by the issuing State on the vehicle owner on account of a breach of the obligation to identify the driver suspected of being responsible for committing a road traffic offence – Article 7(1) – Grounds for non-recognition and non-execution – Scope of and procedures for the verification by the executing State vis-à-vis the legal classification of the offence)


Article 25(1) of the CISA seeks to ensure a fair balance between, on the one hand, the security requirements imposed by an area without internal borders, such as the <mask>, and, on the other, the leeway enjoyed by the Member States as regards their migration policy. Member States enjoy some latitude as regards the grant of a residence permit to an individual in an irregular situation, thus retaining controls over the entry to, and residence in, their territory by third-country nationals. As the Court has held, the issue of residence permits for a period of more than 90 days is covered, for the most part, by the national legislation of the Member States.   Accordingly, the primary objective of Article 25(1) of the CISA is to balance the interests of each of the Contracting States, the State issuing the alert and the granting State, by means of a consultation procedure and, where appropriate, to restrict the issue of residence permits to those based on a substantive reason.


Framework Decision 2002/584 on the European arrest warrant seeks, by the establishment of a simplified and more effective system, directly between the judicial authorities, for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an <mask>, and has as its basis the high level of trust which must exist between the Member States (judgment of 24 September 2020, Generalbundesanwalt beim Bundesgerichtshof (Speciality rule), C‑195/20 PPU, EU:C:2020:749, paragraph 32 and the case-law cited).


157 As is apparent from recitals 4 and 5 of Decision 2006/928, that decision was adopted in the context of Romania’s accession to the European Union, which took place on 1 January 2007, on the basis of Articles 37 and 38 of the Act of Accession, which empowered the Commission to take appropriate measures in the event of, respectively, imminent risk of serious breach of the functioning of the internal market linked to Romania’s failure to honour commitments undertaken in the context of the accession negotiations and imminent risk of serious shortcomings by Romania as regards compliance with EU law relating to the <mask>.


So far as concerns the teleological interpretation of Directive 2010/24, it should be borne in mind that that directive, while falling within the area of the internal market and not that of the <mask>, is based on the principle of mutual trust. The implementation of the system of mutual assistance established by Directive 2010/24 depends on the existence of such trust between the national authorities concerned (see, to that effect, judgment of 26 April 2018, Donnellan, C‑34/17, EU:C:2018:282, paragraph 41).


Since, as stated in paragraph 40 of the present judgment, Framework Decision 2002/584 is intended to establish a simplified system of direct surrender between ‘judicial authorities’ for the purpose of ensuring in the <mask> the free movement of judicial decisions in criminal matters, maintaining the independence of such authorities is also essential in the context of the European arrest warrant mechanism.


After pointing out that the two references for a preliminary ruling concerned the interpretation of Framework Decision 2002/584, which falls within the scope of Title V of Part Three of the FEU Treaty concerning the <mask>, and could therefore be dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Court’s Rules of Procedure, the First Chamber of the Court noted — as regards Case C‑626/19 PPU, which the Rechtbank Amsterdam (District Court, Amsterdam) had requested be dealt with under the urgent procedure — that YC had been deprived of his liberty and that the question whether he could continue to be held in custody depended on the outcome of the dispute in the main proceedings. As regards Case C‑566/19 PPU, the First Chamber of the Court took the view that, although JR had not been deprived of his liberty, the question raised in that case was intrinsically linked to those at issue in Case C‑626/19 PPU, with the result that, in order to fulfil the requirements of the proper administration of justice, it was appropriate for the Court, of its own motion, to deal with that case under the urgent preliminary ruling procedure.


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


In that regard, it must be borne in mind that the exclusion in Article 1(2)(a) of Regulation No 44/2001 is an exception which, as such, must be strictly interpreted. In relying on the objective of Regulation No 44/2001 of maintaining and developing an <mask> by facilitating the free movement of judgments, the Court has held that the exclusions from the scope of that regulation are exceptions which, like all exceptions, must be strictly interpreted (see, to that effect, judgment of 23 October 2014, flyLAL-Lithuanian Airlines, C‑302/13, EU:C:2014:2319, paragraph 27).


A national court must take account of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, which, pursuant to Articles 1 and 2 and Article 4a(1) of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the <mask>, does not apply in the Member State of that court, in order to interpret the provisions of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, which is, by contrast, applicable in that Member State in accordance with Article 4 of that protocol.


However, Protocol No 21 to the TEU and the TFEU,   adopted within the context of the Treaty of Lisbon of 2007 and in force since 1 December 2009, provides that Ireland is not bound by EU measures related to the <mask>, unless that Member State expressly opts in to the measure in question. Ireland did not opt in to the relevant provisions of the two agreements concerned. Therefore, it will be necessary to examine whether, as a consequence of the United Kingdom’s withdrawal from the European Union, Ireland needed to have opted in to the provisions relating to the European arrest warrant in order for those provisions to apply. That in turn depends on whether Protocol No 21 applies to those provisions.


In the first place, it should be observed that this reference for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which comes within the areas covered by Title V of Part Three of the FEU Treaty, on the <mask>. The reference can therefore be dealt with under the urgent preliminary ruling procedure, pursuant to Article 107(1) of the Rules of Procedure of the Court.


In that regard, it should be recalled that, as can be seen from Article 67(3) TFEU, in order to achieve its objective of constituting an <mask>, the European Union endeavours to ensure a high level of security through measures to prevent and combat crime, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws (judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 62).


The [European] Union has set itself the objective of maintaining and developing an <mask>, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.


25. Secondly, it should be noted that the principle of mutual trust between the Member States, which is of fundamental importance in EU law, requires, particularly with regard to the <mask>, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. As is apparent from recital 26 of Regulation No 1215/2012, the system of recognition and enforcement laid down by that regulation is based, precisely, on mutual trust in the administration of justice in the European Union. Such trust requires, inter alia, that judicial decisions given in one Member State should be recognised and enforced automatically in another Member State. In that system, the provisions of Regulation No 1215/2012, which provide an exhaustive list (20) of the grounds on which the recognition or enforcement of a judgment may be opposed, must be interpreted strictly, inasmuch as they constitute an obstacle to the attainment of one of the fundamental objectives of that regulation. (21)


Protocol No 21 does not apply, however, if the European Union correctly based those agreements on its external powers to conclude a withdrawal agreement (Article 50(2) TEU) and an association agreement (Article 217 TFEU), rather than on a competence relating to the <mask>. A central element in that regard is the fact that those two surrender regimes do not create new obligations, in particular for Ireland, but merely extend existing ones.


38. Decision 2007/533 has, in my view, similarly automatic effect, since it too contains rules establishing the competence of the Member State issuing the alert as regards the assessment of the circumstances forming the grounds for an alert in SIS II (Article 49(1) and (2) and Article 21) and the obligation to execute the action based on that alert incumbent on the authorities of the requested Member State (Article 39). Accordingly, it must necessarily be stated, as the Court held in the judgment in Commission v Spain, (15) that there is some degree of automaticity in the execution of the action based on the alert, the need for which is justified by the fact that such action gives expression to the principle of sincere cooperation between Member States which underpins the Schengen acquis and is essential to the operation of an integrated management system intended to ensure a high level of security in the <mask> of the European Union, which is the corollary of the freedom to cross internal borders within the Schengen Area.


Above and beyond this, to oblige a Member State to take over the prosecution of a foreign national itself rather than extraditing him or her, would, in many cases, be at odds with obligations that Member State has under international treaties on extradition. Article 6 of the European Convention on Extradition 1957 allows contracting parties to refuse extradition of its nationals, provided, at the request of the requesting State, it submits the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. No comparable provision exists in case a contracting party takes over the prosecution of a foreign national. As has been pointed out by several parties to the proceedings, international legal assistance in criminal matters, and in particular in the area of extradition, depends on the different contracting parties’ confidence in one another. A further restriction on the extradition of alleged criminal offenders might lead to reluctance by other contracting parties in entering into agreements with Member States of the EU. This, however, cannot be in the interest of the European Union which, as is set out clearly in the recitals to the Treaty on the European Union, ‘resolved to facilitate the free movement of persons while ensuring the safety and security of their peoples, by establishing an <mask> …’.


At EU level, significant progress is being made in the establishment of an <mask> and, more specifically, in the field of judicial cooperation in criminal matters. As Article 82(1) TFEU states, that policy is based on the principle of mutual recognition of judgments and judicial decisions and is to include the approximation of the laws and regulations of the Member States in a number of relevant areas. Directive 2012/13 is one of the instruments adopted, on the basis of Article 82(2) TFEU, within the context of the so-called Stockholm Programme.   A number of proposals for new instruments of legislation in this area are currently being examined by the EU legislature, with a view to further strengthening the principle of mutual trust and increasing the degree of administrative and judicial cooperation between Member States’ authorities.


(Reference for a preliminary ruling – <mask> – Border controls, asylum and immigration – Convention implementing the Schengen Agreement – Consultation of the Schengen Information System (SIS) in the examination of an application for a residence permit made by a third-country national for whom an alert has been issued in the SIS for the purposes of refusing entry – Article 25(1) – Schengen Borders Code – Entry conditions for third-country nationals – Article 6(1) and (5) – Charter of Fundamental Rights of the European Union – Article 7 and Article 24(2) – Refusal to renew a residence permit for the purposes of family reunification on the ground that the applicant’s identity cannot be established with certainty)


Moreover, pursuant to Article 2(2) TFEU, one of the Union’s aims is to ‘offer its citizens an <mask> without internal frontiers, in which the free movement of persons is ensured’. However, the noble dream of an area without internal frontiers can hardly be construed in a one-sided manner, whereby openness mandated from above is not accompanied by a correlating degree of responsibility and liability. It cannot be overlooked that an increase in the free movement of persons inevitably produces certain negative externalities or, to put it differently, has a social cost.


However, the ne bis in idem principle set out in both Article 4(5) of the Framework Decision and Article 3(2) thereof and in Article 54 of the CISA is intended not only to prevent, in the <mask>, the impunity of persons definitively convicted and sentenced; it also seeks to ensure legal certainty through respect for decisions of public bodies which have become final (see, to that effect, judgment of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 77).


As regards the objective pursued by Article 54 of the CISA, it is apparent from case-law that the ne bis in idem principle set out in Article 54 of the CISA is intended to ensure, in the <mask>, that a person whose trial has been finally disposed of is not prosecuted in several Contracting States for the same acts on account of his or her having exercised his or her right to freedom of movement, the aim being to ensure legal certainty – in the absence of harmonisation or approximation of the criminal laws of the Member States – through respect for decisions of public bodies which have become final. Article 54 of the CISA should in this respect be interpreted in the light of Article 3(2) TEU, which states that the European Union is to offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with regard to, amongst other matters, the prevention and combating of crime (judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraphs 44 and 46 and the case-law cited). Specifically, it follows from that case-law that a person whose case has already been finally disposed of must be able to move freely without having to fear a fresh prosecution for the same acts in another Contracting State (judgment of 28 September 2006, Gasparini and Others, C‑467/04, EU:C:2006:610, paragraph 27 and the case-law cited).


Article 50 TEU, Article 217 TFEU and Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the <mask>, annexed to the TEU and the TFEU, must be interpreted as meaning that Article 62(1)(b) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, read in conjunction with the fourth paragraph of Article 185 thereof, and Article 632 of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, are binding on Ireland.


In that regard, it must be borne in mind that Framework Decision 2002/584 seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an <mask>, and has as its basis the high level of trust which must exist between the Member States. The system of the European arrest warrant makes it possible to remove, as stated in recital 5 of that framework decision, the complexity and potential for delay inherent in the extradition procedures that existed before that framework decision was adopted. In accordance with Article 1 of that framework decision, the aim of the mechanism of the European arrest warrant is therefore to enable the arrest and surrender of a requested person, in the light of the objective pursued by the framework decision, so that the crime committed does not go unpunished and the person is prosecuted or serves the custodial sentence ordered against him.


According to settled case-law, the ne bis in idem principle, enshrined in Article 50 of the Charter and in Article 54 of the CISA, seeks to prevent, in the <mask> provided for in Article 3(2) TEU, a person whose trial has been finally disposed of in a Member State or in a Contracting State from being prosecuted, while exercising his or her right to freedom of movement, for the same acts as those on the basis of which a final penalty has been imposed on him or her in another Member State or in another Contracting State.


It thus follows from settled case-law of the Court that Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an <mask>, and has as its basis the high level of trust which must exist between the Member States (judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem), C‑665/20 PPU, EU:C:2021:339, paragraph 37 and the case-law cited).


(Reference for a preliminary ruling – <mask> – Border controls, asylum and immigration – Asylum policy – Directive 2013/32/EU – Common procedures for granting and withdrawing international protection – Application for international protection – Grounds of inadmissibility– Article 2(q) – Concept of ‘subsequent application’ – Article 33(2)(d) – Rejection by a Member State of an application for international protection as inadmissible due to the rejection of a previous application made by the person concerned in a third State with which the European Union has concluded an agreement on the criteria and mechanisms for establishing the State responsible for examining an application for asylum lodged in one of the States parties to that agreement – Final decision taken by the Kingdom of Norway)


the applicant refuses to comply with an obligation to have his or her fingerprints taken in accordance with Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the <mask> [OJ 2013 L 180, p. 1]; or


It should be borne in mind that Directive 2011/98 is a key legal instrument within the so-called EU legal migration framework, which is part of the EU’s common immigration policy in the <mask>.   The EU legal migration framework comprises a set of directives which generally regulate the conditions for entry and residence of categories of third-country nationals and their rights following admission in the Member States.   Equal treatment provisions are an important element of those directives, and promote one of the main objectives of EU immigration policy, which, as stated in recital 2 of Directive 2011/98, is to ensure the fair treatment of third-country nationals residing legally in the Member States.


(Actions for failure to fulfil obligations – <mask> – Asylum policy – Directives 2013/32/EU and 2013/33/EU – Procedure for granting international protection – Grounds of inadmissibility – Concepts of ‘safe third country’ and ‘first country of asylum’ – Assistance given to asylum seekers – Criminalisation – Prohibition on entry to the border transit zone of the relevant Member State)


3 Recitals 5, 6, 10 and 12 of Framework Decision 2002/584 are worded as follows: ‘(5) The objective set for the Union to become an <mask> leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation. … (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [TEU], determined by the Council pursuant to Article 7(1) [TEU] with the consequences set out in Article 7(2) thereof. … (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter …, in particular Chapter VI thereof. …’


Secondly, the gravity of the situation concerning the KRS is confirmed by the following fact: on 27 May 2020 the Executive Board of the European Network of Councils for the Judiciary (ENCJ) adopted a Position Paper on the KRS’s Membership of the ENCJ. In that paper the Board sets out the reasons for its proposal to the General Assembly to expel the KRS from the ENCJ (see https://www.encj.eu/node/556). The reasons are, in essence: (i) the KRS does not comply with the statutory rule of the ENCJ that a member council should be independent from the executive; (ii) the KRS is in blatant violation of the ENCJ rule to safeguard the independence of the judiciary, to defend the judiciary, as well as individual judges, in a manner consistent with its role as guarantor, in the face of any measures which threaten to compromise the core values of independence and autonomy; and (iii) the KRS undermines the application of EU law on the independence of judges and courts, and thus its effectiveness. In doing so, it acts against the interests of the European <mask>, and the values it stands for. The Board concluded that the KRS had committed serious breaches of the aims and objectives of the ENCJ as set out in Articles 3 and 4 of its Statutes, and was not prepared to remedy those serious breaches. I would point out that the KRS had already been suspended from the ENCJ on 17 September 2018 because it no longer met that body’s requirements of being independent of the executive and the legislature in a manner which ensures the independence of the Polish judiciary.


That interpretation of the ne bis in idem principle under Article 50 of the Charter corresponds to its function of ensuring legal certainty in the <mask>.   Member States are therefore not free, within the scope of EU law, to determine without restriction when further prosecution is definitive barred and thereby to retry persons who have been finally convicted or acquitted. Rather, when assessing whether further prosecution is definitive barred, they must take into account whether the ordinary remedies of their own legal system have been exhausted. If this is not the case, the ne bis in idem principle does not apply, owing to the lack of a final conviction.


(Reference for a preliminary ruling — <mask> — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Article 16(1) — Detention for the purpose of removal — Detention in prison accommodation — Third-country national representing a serious threat to public policy or public security — Principles of effectiveness and proportionality — Minimum safeguards — Possibility of detention in prison accommodation with persons held on remand — Article 15 — Judicial review — Charter of Fundamental Rights of the European Union — Articles 1 to 4, 6 and 47)


See judgments of 2 March 2017, Eschenbrenner (C‑496/15, EU:C:2017:152, paragraph 36) with regard to free movement of workers; of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken Betriebs (C‑514/12, EU:C:2013:799, paragraph 26); of 28 June 2012, Erny (C‑172/11, EU:C:2012:399, paragraph 41); of 1 June 2010, Blanco Pérez and Chao Gómez (C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 119) with regard to <mask>; of 10 September 2009, Commission v Germany (C‑269/07, EU:C:2009:527); and of 8 July 1999, Baxter and Others (C‑254/97, EU:C:1999:368, paragraph 13).


The freedom to provide services under Article 56 TFEU requires thus not only the elimination of all discrimination against service providers established in other Member States on grounds of nationality, but also the abolition of any restriction, even if it applies without distinction to national service providers and service providers from other Member States. This constitutes consistent case-law since the judgment of 25 July 1991, Säger (C‑76/90, EU:C:1991:331, paragraph 12). See, moreover, judgments of 18 July 2013, Citroën Belux (C‑265/12, EU:C:2013:498, paragraph 35), and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International (C‑42/07, EU:C:2009:519, paragraph 51). In the judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 37), though that was a case on the <mask>, the Court referred not only to that specific freedom: ‘national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty’. My emphasis.


In some judgments, the Court has considered that once a measure has been qualified as a restriction, the lack of comparability might serve as a justification for its discriminatory effect. See, for example, judgment of 22 November 2018, Sofina and Others (C‑575/17, EU:C:2018:943, paragraph 42). In other judgments, however, the Court has examined the comparability of the situations as a condition to qualify a measure as a restriction. See, for example, judgment of 13 March 2014, Bouanich (C‑375/12, EU:C:2014:138, paragraphs 45 to 56), or of 4 July 2018, NN (C‑28/17, EU:C:2018:526, paragraphs 31 to 38). Finally, in certain cases, the Court has twice carried out that examination: the first time, to qualify a measure as a restriction, the second time at the justification stage. See judgment of 17 September 2015, Miljoen and Others (C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraphs 57 and 65) or, in relation to the <mask>, of 17 May 2017, X (C‑68/15, EU:C:2017:379, paragraphs 42 and 50). In these situations, the first examination of comparability focused, in substance, on whether the persons concerned were subject to the same kind of tax treatment (which in fact amounts to examining not the comparability of situations, but the scope of the measure in question) and the second on the comparability of the situations having regard to the aim pursued by the national tax legislation at issue.


The Commission considers that the question which must be asked in order to assess whether a national measure constitutes a restriction of the <mask> is whether an obligation pursuant to national law imposed on new operators – in this case a work permit for third-country nationals – creates obstacles to access to the market and whether it would deprive them of the opportunity to compete effectively with established operators.   According to the Commission, a measure does not necessarily constitute a restriction within the meaning of Article 49 TFEU merely because the economic advantage and the incentive to engage in an economic activity are less than if the measure did not apply. Member States, in the absence of harmonisation, are in principle competent to regulate the exercise of economic activities on their territory and if a measure does not discriminate in law or in fact, it should only be considered a restriction of the freedom of establishment if it affects access to the market.   In that regard, the Commission cites the judgment of 14 July 1994, Peralta (C‑379/92, EU:C:1994:296, paragraph 34), in which the Court stated that in the absence of harmonisation, a Member State may impose, directly or indirectly, technical rules which are specific to it and which are not necessarily to be found in the other Member States. According to the Court ‘the difficulties which might arise for those undertakings from that situation do not affect freedom of establishment … Fundamentally, those difficulties are no different in nature from those which may originate in disparities between national laws governing, for example, labour costs, social security costs or the tax system’.


‘The rules on driving licences are essential elements of the common transport policy, contribute to improving road safety, and facilitate the free movement of persons taking up residence in a Member State other than the one issuing the licence. Given the importance of individual means of transport, possession of a driving licence duly recognised by a host Member State promotes free movement and <mask> of persons. …’


In addition, the existence of an impediment to effective competition is not a necessary criterion under Article 49 TFEU. Thus in its judgment of 27 February 2019, Associação Peço a Palavra and Others (C‑563/17, EU:C:2019:144, paragraphs 55 to 62), the Court held that the requirement to maintain a principal place of business in the Member State concerned constituted a restriction to the <mask> of a company incorporated under the legislation of a Member State. In that case, the Court – rather than finding a limitation of the possibility of competing (more) effectively – considered that the freedom of establishment encompasses the right to transfer the principal place of business of the company to another Member State, which requires, if that transfer entails the conversion of the company into a company subject to the law of the latter Member State and the loss of its nationality of origin, compliance with the conditions for incorporation laid down in the legislation of the Member State of relocation.


In those circumstances, the Court finds that Section 11 of the WRPA 1999, in so far as it makes, in principle, the full and automatic exclusion of pension rights from a bankruptcy estate dependent on the pension scheme in which those rights accrued obtaining prior approval for tax purposes, including those schemes established and tax approved in the home Member State of the EU citizen concerned prior to his or her move to the United Kingdom on a permanent basis, as in the case at issue in the main proceedings, is precluded by the rule of equal treatment laid down in Article 49 TFEU and, therefore, amounts to a restriction on the <mask>, which is prohibited by that article, unless justified within the meaning of EU law.


In support of the action, the applicant relies on four pleas in law alleging, respectively: (i) an infringement of the principles of non-discrimination, freedom to provide services and <mask>; (ii) a misapplication of Article 107(2)(b) TFEU and a manifest error of assessment relating to the proportionality of the aid; (iii) that the Commission should have initiated the formal investigation procedure; and (iv) an infringement of the obligation to state reasons within the meaning of Article 296 TFEU.


The link between the new rule of the DLV precluding participation of Mr Biffi in the national championships on an equal footing with German nationals is sufficiently proximate to the harm to Mr Biffi’s business to bring the rule within the scope of Article 49 TFEU. Just as the Court has held that the prohibition on discrimination on the basis of nationality must be enforceable against private sector employers with respect to both employed workers and workers with a self-employed status under Article 49 TFEU,   so too must organisations such as the DLV be responsible under Article 49 TFEU for actions that may impact adversely on the <mask> and discrimination on the basis of nationality which it precludes.   If not, harm to the internal market results.


135. As regards the services for which the estimated value is below the threshold laid down in Article 4(d) of Directive 2014/24 and procedures that do not entail a choice within the meaning of Article 1(2) of that directive, the <mask> enshrined in Article 49 TFEU must be interpreted as not precluding such national legislation, provided that that legislative measure pursues a legitimate objective recognised by EU law, and complies with the principles of equal treatment and proportionality, which is for the national court to ascertain. C. The third question


36 As for what are generally considered to be forestry activities, see Annex to Council Directive 67/654/EEC of 24 October 1967 laying down detailed provisions for the attainment of <mask> and freedom to provide services in respect of activities of self-employed persons in forestry and logging (OJ, English Special Edition 1967 (I), p. 287). See also International Standard industrial Classification of All Economic Activities (ISIC), Statistical papers, Series M, No. 4, Rev.4, United Nations, Section A. (‘Agriculture, forestry and fishing’), entry 02 (‘Forestry and logging’).


According to settled case-law, <mask> aims to guarantee the benefit of national treatment in the host Member State to nationals of other Member States and to companies referred to in Article 54 TFEU by prohibiting any discrimination based on the place in which companies have their seat (judgment of 26 April 2018, ANGED, C‑236/16 and C‑237/16, EU:C:2018:291, paragraph 16 and the case-law cited).


(Reference for a preliminary ruling – Electronic communications – Article 11(2) of the Charter of Fundamental Rights of the European Union – Freedom and pluralism of the media – <mask> – Article 49 TFEU – Directive 2002/21/EC – Articles 15 and 16 – National legislation prohibiting an undertaking which has significant market power in a sector from establishing a ‘significant economic dimension’ in another sector – Calculation of revenues received in the electronic communications sector and the media sector – Definition of the electronic communications sector – Restriction to markets which have been subject to ex ante regulation – Account taken of the income of affiliated companies – Fixing of different income thresholds for undertakings active in the electronic communications sector)


Indeed, the tax measure at issue in the main proceedings makes it less attractive for companies established in Gibraltar to exercise <mask> and they may, consequently, refrain from acquiring, creating or maintaining a subsidiary in the State which adopts that measure.   As the Court has already explained, acceptance of the proposition that the Member State in which a resident subsidiary is established may freely apply different treatment merely by reason of the fact that the registered office of the parent company is situated in another Member State would deprive Article 49 TFEU of all meaning.


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


(Reference for a preliminary ruling – Telecommunications – <mask> – Free movement of capital – Articles 49 and 63 TFEU – Directive 2002/21/EC – National legislation countering dominant positions – Calculation of revenues earned in the electronic communications sector and in the Integrated Communications System – Limitation of the electronic communications sector to markets forming the subject of ex ante regulation – Accounting for the revenues of affiliated companies – Differentiation of revenue thresholds as between companies active in the electronic communications sector and other operators – Article 11 of the Charter – Media freedom and pluralism)


The Danish Government, in its answer to the question posed by the Court, agrees with the position adopted by the Commission outlined in point 41 of this Opinion. Moreover, it considers that the judgment of 5 October 2004, CaixaBank France (C‑442/02, EU:C:2004:586, paragraph 12) could be interpreted as requiring a serious obstacle to the pursuit of activities affecting access to the market in order to find a restriction of the <mask>. Thus, according to that government, given that Member States are, in principle, competent to regulate the exercise of an economic activity on their territory, if a measure is not discriminatory in law or in fact, it should only be considered as an obstacle to the freedom of establishment if it affects access to the market. The Danish Government considers that the judgment of 29 March 2011, Commission v Italy (C‑565/08, EU:C:2011:188) concerning maximum tariffs charged by lawyers demonstrates that national rules that do not affect the possibility of competing do not constitute a restriction of the freedom of establishment pursuant to Article 49 TFEU. According to that government, if an operator has had   access to the market, it must operate under the same conditions as other operators. Once an operator has had access to the market, it can be protected only against direct and indirect discrimination.   The Danish Government therefore considers that the national measure in question in the main proceedings does not prevent new entrants from competing effectively with Danish maritime companies and that it does not constitute a restriction pursuant to Article 49 TFEU.


It should be recalled that the provisions of the FEU Treaty on the <mask> and the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited, and of 14 November 2018, NKBM, C‑215/17, EU:C:2018:901, paragraph 41).


In that regard, I would observe that it follows from settled case-law that a national measure restricting the free movement of capital or <mask> may be justified by the need to prevent tax evasion and avoidance where it specifically targets wholly artificial arrangements which do not reflect economic reality and the purpose of which is to avoid the tax normally payable on the profits generated by activities carried out in the territory of the Member State concerned.   The Court has also consistently held that the need to guarantee the effectiveness of fiscal supervision constitutes an overriding reason in the public interest capable of justifying a restriction on the free movement of capital and recalled, in that context, that fiscal supervision is designed to combat tax evasion and avoidance.


A final factor that supports the assessment that the Administrative Committee system lacks proportionality has to do with the procedure operated by the Committees and the remedies against their decisions or absence thereof. The existence of an effective means of judicial review is called for by Article 47 of the Charter and is relevant in determining whether a restriction on the <mask> passes the proportionality test.


As regards the possibility of justifying the restriction of <mask> for an overriding reason in the public interest, the Government of the Autonomous Community of Andalusia contends that the general deductions are intended to encourage financial inclusion in rural areas and the establishment and effectiveness of credit institutions in Andalusia. In that regard, it is sufficient to state that such an objective cannot justify the limitation in granting favourable treatment, namely a deduction of EUR 200000 from the gross amount of the IDECA, solely to those credit institutions with their registered office in Andalusia, given that, unlike the number and location of agencies, the presence of only the registered office in a given territory does not seem capable of contributing to the coverage of that territory by local financial services. In any event, it has not been demonstrated that such a limitation would be necessary in order to attain those aims.


89. Such an approach is, moreover, consistent with the Court’s decisions in a line of cases involving national rules bearing similarities to Bulgarian legislation. I note in that regard that, in SGI, the Court examined, in the light of <mask>, Belgian legislation allowing the tax authorities to add back to the profits of a resident company, for the purposes of income tax, the notional interest on an interest-free loan granted to a non-resident subsidiary, on the ground that, even though the scope of that legislation was not limited to related companies, the situation at issue in that case concerned related companies. (36)


Hungary contends, in the alternative, that the requirement that the institution concerned provide education in the State where it has its seat does not restrict the <mask>. The requirement is linked to the exercise of an activity, and not to the formation of companies. In particular, it does not prevent a foreign higher education institution from setting up, for example, as a secondary establishment, a branch in Hungary. Nor does it limit the choice of legal form of the establishment; it merely lays down, in the case of service providers already established in Hungary through a secondary establishment, a condition relating to the exercise of higher education teaching activities.


In that regard, it must be borne in mind that Article 49 TFEU precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the <mask> guaranteed by the FEU Treaty, and that such restrictive effects may arise, inter alia, where, on account of national legislation, a company may be deterred from setting up subsidiary bodies, such as permanent establishments, in other Member States and from carrying on its activities through such bodies (judgment of 10 May 2012, Duomo Gpa and Others, C‑357/10 to C‑359/10, EU:C:2012:283, paragraph 35 and the case-law cited).


By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether the MiFID, in particular Articles 8, 23, 50 and 51 thereof, the provisions of the FEU Treaty on <mask> and freedom to provide services and the principles of non-discrimination and proportionality must be interpreted as precluding a temporary prohibition on exercising the activity of financial adviser authorised to provide offsite services, such as that at issue in the main proceedings.


Second, according to the settled case-law of the Court, the definition of ‘establishment’ within the meaning of Articles 49 and 54 TFEU involves the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period and registration of a vessel cannot be separated from the exercise of the <mask> where the vessel serves as a vehicle for the pursuit of an economic activity that includes fixed establishment in the State of registration (see, to that effect, judgments of 25 July 1991, Factortame and Others, C‑221/89, EU:C:1991:320, paragraphs 20 to 22, and of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union, C‑438/05, EU:C:2007:772, paragraph 70).


In addition, if Article 65(1)(a) TFEU were to be regarded as forming, strictly speaking, a ‘derogation’, it would mean that the test to be applied in tax matters for identifying the existence of a restriction would differ according to the freedom of movement at issue, since, for example, in relation to the <mask>, it is established that the situations must be compared before a measure is classified as a restriction in this sense.


(Infringement proceedings — Article 258 TFEU — Jurisdiction of the Court — Infringement by a Member State of obligations under the General Agreement on Trade in Services (GATS) — Freedom to provide services — Directive 2006/123/EC — Article 16 — Article 56 TFEU — <mask> — Article 49 TFEU — Education services — Higher education — Service suppliers who are third-country nationals — Legal conditions for the supply of education services in a Member State — Requirement of an international treaty with the State of origin — Requirement of genuine teaching activities in the State of origin — Applicability of the Charter of Fundamental Rights of the European Union — Article 13 — Academic freedom — Article 14(3) — Freedom to found educational establishments)


Obvious fetters to the <mask> – and indeed access to any market – are requirements provided for under national law to obtain authorisation to establish in a Member State or to pursue a particular activity. In that regard, it is settled case-law that a national rule which makes the establishment of an undertaking from another Member State conditional upon the issue of prior authorisation constitutes a restriction of the freedom of establishment pursuant to Article 49 TFEU, since it is capable of hindering the exercise by that undertaking of freedom of establishment by preventing it from freely pursuing its activities through a fixed place of business.   I would note that such requirements may equally affect nationals or legal persons from the Member State of establishment. The Court in such cases, however, has not required the existence of discrimination in any form in order to find a restriction for this purpose.


That directive, as is apparent, in essence, from recital 1, seeks to ensure compliance, in the award of public contracts, with, inter alia, the free movement of goods, <mask> and the freedom to provide services, as well as with the principles deriving therefrom, in particular equal treatment, non-discrimination, proportionality and transparency, and to ensure that public procurement is opened up to competition.


As to whether, in a situation such as that at issue in the case in the main proceedings, Section 11 of the WRPA 1999, by precluding the exclusion of pension rights from the bankruptcy estate as provided for by that provision, constitutes a restriction on the <mask> laid down in Article 49 TFEU, it should be noted that that article confers on nationals of one Member State who wish to pursue activities as self-employed persons in another Member State the benefit of the same treatment as the host State’s own nationals and prohibits any discrimination on the ground of nationality which hinders the taking up or pursuit of such activities. Any measure which, pursuant to any provision laid down by law, regulation or administrative action in a Member State, or as the result of the application of such a provision, or of administrative practices, hinders nationals of other Member States in their pursuit of activities as self-employed persons by treating nationals of other Member States differently from nationals of the country concerned is prohibited (see, to that effect, judgment of 8 June 1999, Meeusen, C‑337/97, EU:C:1999:284, paragraph 27).


3 Recitals 4 and 49 of Directive 2011/83 are worded as follows: ‘(4) In accordance with Article 26(2) TFEU, the internal market is to comprise an area without internal frontiers in which the free movement of goods and services and <mask> are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity. … (49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises contracts. … The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill. This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.’


The Court has stated that the registration of a vessel does not necessarily involve establishment within the meaning of the FEU Treaty, in particular where the vessel is not used to pursue an economic activity or where the application for registration is made by or on behalf of a person who is not established, and has no intention of becoming established, in the Member State concerned. However, where the vessel constitutes an instrument for pursuing an economic activity which involves a fixed establishment in the Member State concerned, the registration of that vessel cannot be dissociated from the exercise of the <mask>.


I would like to stress at the outset that the present case does not concern tax law, which clearly follows somewhat different rules concerning the concept of ‘restriction of the freedom of establishment’ pursuant to Article 49 TFEU. I refer to this line of case-law as the Commission noted in its observations   that at times the Court does not refer to the test laid down in its judgments of 31 March 1993, Kraus (C‑19/92, EU:C:1993:125, paragraph 32), and of 5 October 2004, CaixaBank France (C‑442/02, EU:C:2004:586, paragraph 11), but rather compares the effects of measures on national and non-national operators. As it happens, however, most taxation measures consist (in one sense at least) of restrictions on establishment since by definition the existence of even a generally applicable taxation measure impacts on the capacity of an undertaking to do business in that Member State. To that extent, therefore, the taxation cases may be regarded as sui generis so far as <mask> is concerned.


It is settled case-law that Article 49 TFEU includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the same conditions as are laid down by the law of the Member State of establishment for its own nationals. On the other hand, all measures which prohibit, impede or render less attractive the exercise of <mask> within the meaning of the first paragraph of Article 49 TFEU must be regarded as constituting restrictions on that freedom.


By contrast, as regards the 2014 tax year, the Administrative Court held that the action was well founded, and that the prohibition resulting from Article 164a of the LIR, which prevents a non-resident parent company established in another Member State from forming a tax entity made up of its resident subsidiaries, whereas that possibility is open to a resident parent company by means of vertical integration, is incompatible with the freedom of movement and <mask> referred to in Articles 49 and 54 TFEU.


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 <mask>, the freedom to provide services and the free movement of capital. 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).


Even if it were to be accepted that the tax regime at issue in the main proceedings has restrictive effects on the free movement of capital, such effects would have to be seen as an unavoidable consequence of any restriction on <mask> and they do not justify an examination of that regime in the light of Article 63 TFEU (see, by analogy, judgment of 15 May 2008, Lidl Belgium, C‑414/06, EU:C:2008:278, paragraph 16 and the case-law cited).