Likewise, the Court has held that the safeguarding of the freedoms protected under Article 11 of the Charter, which in paragraph 2 thereof refers to the freedom and pluralism of the media, unquestionably constitutes a legitimate aim in the general interest, the importance of which in a democratic and pluralistic society must be stressed in particular, capable of justifying a restriction on <mask> (judgment of 3 September 2020, Vivendi, C‑719/18, EU:C:2020:627, paragraph 57 and the case-law cited).


However, it follows from the Court’s settled case-law that Articles 49 and 56 TFEU preclude any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by nationals of the European Union of the <mask> and the freedom to provide services guaranteed by those provisions of the Treaty (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 28 and the case-law cited).


In order for tax legislation of a Member State to infringe the <mask> of companies, it must result in a difference in treatment to the detriment of the companies exercising that freedom; that difference in treatment must relate to objectively comparable situations and must not be justified by an overriding reason in the public interest or proportionate to that objective.


3 Recitals 3, 4, 8, 14, 16, 23 to 26 and 61 of Directive 2009/73 state: ‘(3) The freedoms which the Treaty guarantees the citizens of the Union – inter alia, the free movement of goods, the <mask> and the freedom to provide services – are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers. (4) However, at present, there are obstacles to the sale of gas on equal terms and without discrimination or disadvantages in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist. … (8) Only the removal of the incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner as the system operator and its independence from any supply and production interests, is clearly an effective and stable way to solve the inherent conflict of interests and to ensure security of supply. For that reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market [(OJ 2008 C 175 E, p. 206),] referred to ownership unbundling at transmission level as the most effective tool by which to promote investments in infrastructure in a non-discriminatory way, fair access to the network for new entrants and transparency in the market. … … (14) Where, on 3 September 2009, an undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be given a choice between ownership unbundling and setting up a system operator or transmission operator which is independent from supply and production interests. … (16) The full effectiveness of the independent system operator or independent transmission operator solutions should be ensured by way of specific additional rules. The rules on the independent transmission operator provide an appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new market entrants and the integration of gas markets. Effective unbundling through the independent transmission operator provisions should be based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. The independence of the transmission operator should also, inter alia, be ensured through certain “cooling-off” periods during which no management or other relevant activity giving access to the same information as could have been obtained in a managerial position is exercised in the vertically integrated undertaking. The independent transmission operator model of effective unbundling is in line with the requirements laid down by the European Council at its meeting on 8 and 9 March 2007. … (23) Further measures should be taken in order to ensure transparent and non-discriminatory tariffs for access to transport. Those tariffs should be applicable to all users on a non-discriminatory basis. Where a storage facility, linepack or ancillary service operates in a sufficiently competitive market, access could be allowed on the basis of transparent and non-discriminatory market-based mechanisms. (24) It is necessary to ensure the independence of storage system operators in order to improve third-party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. … (25) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. … To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to household and small non-household customers. (26) Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which should be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards on an ongoing basis. … (61) Under Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks [and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36)], the [European] Commission may adopt Guidelines to achieve the necessary degree of harmonisation. Such Guidelines, which constitute binding implementing measures, are, also with regard to certain provisions of this Directive, a useful tool which can be adapted quickly where necessary.’


As a preliminary point, it should be recalled that, although Article 345 TFEU, relied on by the referring court, lays down the principle of the neutrality of the Treaties with regard to the system of property ownership in the Member States, it does not, however, have the effect of exempting the systems of property ownership existing in the Member States from the fundamental rules of the FEU Treaty. Thus, although that provision does not call into question the Member States’ right to establish a system for the acquisition of immovable property which lays down specific measures applying to transactions concerning agricultural and forestry land, such a system remains subject inter alia to the principle of non-discrimination, and to the rules relating to <mask> and free movement of capital (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 51 and the case-law cited).


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


Any other interpretation would fall foul of the very wording of the provisions of EU law on <mask>, which are, inter alia, aimed at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State (see, to that effect, judgments of 11 March 2004, de Lasteyrie du Saillant, C‑9/02, EU:C:2004:138, paragraph 42, and of 12 June 2018, Bevola and Jens W. Trock, C‑650/16, EU:C:2018:424, paragraph 16).


As regards the interpretation of Article 14(6) of Directive 2006/123 in the light of the objectives thereof, it must be noted that, according to recital 12, that directive seeks to create a legal framework to ensure the <mask> and the free movement of services between the Member States. However, the influence on the decision-making process exercised by the competitors of an applicant for a commercial operating permit, even if they do not take part in the voting on the permit application, is such as to impede or render less attractive the exercise of those fundamental freedoms. Those competitors might seek to delay the adoption of necessary decisions, propose excessive restrictions or obtain important competitive information.


I therefore consider that there is no evidence in the file before the Court that the aim pursued by the legislation in question put forward by the referring court for justifying pursuant to Article 52(1) TFEU on grounds of public health restrictions on the <mask> is appropriate in that regard and that, in any event, even if there were, this goes beyond what is necessary to attain the objective in question. For all the reasons stated elsewhere in this Opinion, I take the view that the legislation fails to meet any clear public health objectives and, in any event, the means adopted are manifestly disproportionate for any such purpose.


FCB put forward five pleas in support of its action. The first plea in law alleged infringement of Article 49 TFEU, read in conjunction with Articles 107 and 108 TFEU, and of Article 16 of the Charter of Fundamental Rights of the European Union, in that the decision at issue had failed to take account of the fact that the measure at issue infringed the <mask>. The second plea alleged infringement of Article 107(1) TFEU, in that the Commission had committed an error of assessment as to the existence of an advantage, and of the principle of sound administration in the examination of the existence of that advantage. The third plea alleged infringement of the principles of the protection of legitimate expectations and of legal certainty. The fourth plea alleged infringement of Article 107(1) TFEU, in that the Commission had not taken into account the fact that the measure at issue was justified by the internal logic of the tax system. Lastly, the fifth plea alleged infringement of Article 108 TFEU, in that the Commission had ordered the recovery of existing aid and had failed to comply with the procedure laid down for that type of aid.


In the present case, it has to be said that one of the eligibility criteria, that of holding a Swedish licence, results in a difference in treatment for airlines whose principal place of business is in Sweden, so as to be able to benefit from a loan guaranteed by the State, and for those whose principal place of business is in another Member State and which operate in Sweden, to Sweden and from Sweden under the freedom to provide services and the <mask>, which are not so entitled.


22 The Commission recalled that a measure which derogates from the reference system could still be justified by the nature or overall structure of that system and that it was for the Member State concerned to show that such justification exists. The United Kingdom claimed, first, that the exemptions at issue aimed to ensure that the system was manageable and administrable and, second, that they ensured <mask> within the European Union.


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


Articles 9 to 13 of Directive 2006/123 impose requirements on Member States which must be met by their respective national laws where the service activity is subject to authorisation. As has already been held with regard to Article 14 of that directive, which establishes a list of requirements that are‘prohibited’ within the framework of the exercise of <mask>, the Court considers that Articles 9 to 13 of Directive 2006/123 provide for exhaustive harmonisation concerning the services falling within their scope (see, that effect, judgment of 14 July 2016, Promoimpresa and Others, C‑458/14 and C‑67/15, EU:C:2016:558, paragraphs 60 and 61).


In that regard, it must be observed that it is settled case-law that the provisions of the FEU Treaty on the <mask> do not apply to situations which are confined in all respects within a single Member State.   Moreover, in order for Article 49 TFEU to apply in relation to public procurement activities in respect of which all the relevant elements are confined to a single Member State, it is necessary for the contract at issue in the main proceedings to be of certain cross-border interest.


In a similar vein, fifthly and crucially, the Court has (quite rightly) not resorted to Keck and Mithouard   when it could have done so in interpreting the <mask> of a service provider in the context of the Services Directive. In X and Visser,   it found that a measure which would undoubtedly have constituted a ‘selling arrangement’ in the sense of Keck and Mithouard   nevertheless falls within the scope of the freedom of establishment under the Services Directive, thereby ‘representing a move away from the ideas that led to the decision in Keck’.


In my view, this logic casts doubt on the validity of the Commission’s argument that if there were any cross-border element in the case and if the provision of German law at issue were applicable, Article 49 TFEU could be relied upon, since this would mean that the same facts could be assessed in terms of compliance both with Directive 2006/123 and with Article 49 TFEU. In my opinion, this would be contrary to the intention of the EU legislature, which, in adopting that directive, sought to regulate <mask> in relation to service activities comprehensively. In other words, all those types and aspects of freedom of establishment which fall within the scope of the directive can no longer be assessed in the light of Article 49 TFEU.


Consequently, it must be examined, secondly, whether the restriction of <mask> entailed by the unconditional right of pre-emption granted to the pharmacists employed by a municipal pharmacy, where that pharmacy is sold by tender, is appropriate for ensuring attainment of the objective pursued and, if so, whether that restriction goes beyond what is necessary to attain that objective, that is to say whether there are measures less restrictive of the freedom enshrined in Article 49 TFEU which would enable the objective to be attained just as effectively (see, to that effect, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraphs 25 and 52).


11 Judgment of 15 May 2008 (C‑414/06, EU:C:2008:278). The Court ruled that Article 43 EC does not preclude a situation in which a company established in a Member State cannot deduct from its tax base losses of a permanent establishment situated in another Member State, to the extent that, by virtue of a convention for the avoidance of double taxation, the income of that establishment is taxed in the latter Member State where those losses can be taken into account in the taxation of the income of that permanent establishment in future accounting periods. The Court reached that conclusion after having found that the tax regime at issue, which allowed such losses to be deducted when they were incurred by resident permanent establishments, involved a restriction on the <mask> that was justified by overriding reasons in the public interest.


According to the Commission, a high degree of independence of veterinary surgeons and the protection of public health may be obtained by measures less restrictive than the requirement that veterinary surgeons must hold 100% of the voting rights in companies of veterinary surgeons, which constitutes a disproportionate restriction of <mask>. The Commission considers that, if veterinary surgeons are able to exercise a decisive influence by holding enough shares to ensure that they control the company of veterinary surgeons concerned, non-veterinary surgeons cannot be prohibited from having a limited holding in such a company, not blocking such control.


41. Answering those questions is like venturing through a labyrinth of different legal problems. To make it easier, I will break it down into four separate issues. As a preliminary point, it is necessary to establish the nature of the social services at issue in the main proceedings in order to determine whether they are to be classified as ‘economic activities’ under the EU public procurement rules. Next, I shall analyse the conditions of applicability of Directive 2014/24. Then, I shall turn to examining the ‘simplified regime’ laid out in Articles 74 to 77 of that directive and, lastly, the rules of <mask> enshrined in Article 49 TFEU.


It must be borne in mind that the reduction in tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is in principle contrary to a fundamental freedom (see, inter alia, judgment of 13 December 2005, Marks & Spencer, C‑446/03, EU:C:2005:763, paragraph 44 and the case-law cited). A finding to the contrary would amount to allowing the Member States to restrict, on the basis of that ground, the <mask>.


A restriction of <mask> may be justified by overriding reasons in the public interest. Justifications can be the preservation of the balanced allocation of the power to impose taxes between Member States (point 34 et seq.) and the avoidance of double use of losses (point 46 et seq.). In addition, the measure (here non-allowance of losses previously sustained abroad) must be proportionate, that is, appropriate to ensuring the attainment of its objective and not go beyond what is necessary to attain it (point 50 et seq.).


In support of its action, the applicant puts forward five pleas in law, alleging (i) infringement of the principles of non-discrimination, freedom to provide services and <mask>, (ii) infringement of the obligation to weigh the beneficial effects of the aid against its adverse effects on trading conditions and on the maintenance of undistorted competition, (iii) the incorrect classification of the measure at issue as an aid scheme, (iv) infringement of the applicant’s procedural rights and (v) infringement of the obligation to state reasons.


In my view, while the Kraus test is very broad in scope, the effect on the <mask> of the requirement under national law that third-country nationals hold a work permit is on its own too indirect as to constitute a restriction of that freedom. I therefore do not consider that the measures in question, which appear, subject to verification by the referring court, to temper or render more flexible those national rules, constitute a restriction of the freedom of establishment in the absence of any evidence in the file before the Court of any additional restrictive effect on establishment resulting from the 25-call rule in particular.


Brussels Securities has also argued, both at national level and before the Court, that this order of deduction contravenes the <mask> provided for by Article 49 TFEU. I propose, however, to leave that issue to one side, as the Belgian Government and the Commission have done. It is apparent from the order for reference that this argument was connected with a submission – rejected by the referring court – that the Belgian constitution has been infringed. Furthermore, the question submitted to the Court does not refer, even by implication, to Article 49 TFEU, and it does not seem to me that interpreting that provision would assist the national court to determine the case before it, in the sense in which that expression has been used in settled case-law of the Court (see, inter alia, judgment of 19 December 2018, AREX CZ (C‑414/17, EU:C:2018:1027, paragraphs 34 and 35)).


107. Secondly, when the Member States make use of the option provided for in Article 20 of Directive 2014/24, they must respect, inter alia, <mask>, as well as the principles deriving from that freedom, such as the principles of equal treatment and proportionality. (102) As to the social services at issue in the main proceedings whose users are persons with functional diversity, it is for the referring court to determine whether the conditions set out in the national legislation are necessary and appropriate for ensuring the integration of those persons, as required by Article 20(1) of Directive 2014/24. Moreover, it is worth noting that the Court has already held that when the Member States limit reserved contracts to voluntary associations, the principle of equality is not, in essence, infringed. (103) (2) Reserved contracts under Article 77 of Directive 2014/24


The referring court notes that Mr M and Others have submitted in that regard that it is unnecessary to show that those provisions of national law are liable to have a deterrent effect on <mask> or that what was required was a comparison between the position of the migrant worker in the host Member State and in the home Member State.


(Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia, Spain)) (Reference for a preliminary ruling – Public procurement – Articles 49 and 56 TFEU – <mask> and freedom to provide services – Economic activity – Directive 2014/24/EU – Article 1(2), Article 2(1) and Article 4(d) – Conditions of applicability – Article 20(1) and Article 77 – Reserved contracts – Articles 74 to 76 and Annex XIV – Provision of social services – Public procurement in the field of social services – Simplified regime – Contractual action agreements to provide such services – Exclusion of profit-making entities – Principles of transparency, equality and proportionality – Tender condition – Geographical limitation – Directive 2006/123/EC – Scope ratione materiae – Article 2(2)(j) – Exclusion of social services)


Is the fact that taxable persons under foreign ownership which operate a number of retail establishments through a single company and which are engaged in store retail trade in fact have to pay the special tax corresponding to the highest band of a steeply progressive tax rate, whereas taxable persons under domestic ownership operating as a franchise under a single banner — through stores which generally constitute independent companies — are in fact included in the exempt band or are subject to one of the lower tax rates following that band, with the result that the proportion of the tax paid by companies under foreign ownership of the total tax collected through the special tax is substantially higher than in the case of taxable persons under domestic ownership, compatible with the provisions of the FEU Treaty governing the principles of non-discrimination (Articles 18 TFEU and 26 TFEU), <mask> (Article 49 TFEU), equal treatment (Article 54 TFEU), equal treatment as regards financial participation in the capital of companies or firms within the meaning of Article 54 TFEU (Article 55 TFEU), freedom to provide services (Article 56 TFEU), free movement of capital (Articles 63 TFEU and 65 TFEU) and equality of taxation of companies (Article 110 TFEU)?


27 That said, since that question submitted for a preliminary ruling refers to the provisions of the FEU Treaty relating both to <mask> and to the free movement of capital, it is necessary to determine which freedom is applicable in the main proceedings (see judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 52 and the case-law cited).


If that were the case, Vivendi’s <mask> in Italy would be adversely affected by the application of the provision at issue, since the fact of attributing to it the revenues of ‘affiliated’ companies (like Mediaset) whose commercial strategy it is not in a position to exert an influence over would diminish the opportunity for it to establish itself in the SIC.


It is, however, necessary to determine whether legislation such as Article 12(2) of Law No 362/1991 is appropriate to the attainment of that objective and, if so, whether the restriction on <mask> goes beyond what is necessary to attain the objective pursued, that is to say, whether there are less restrictive measures by means of which that objective could be achieved.


According to the Commission, the requirement that the higher education institutions concerned must, under Article 76(1)(b) of the Law on higher education, satisfy specific conditions in the Member State in which they have their seat in order to be able to establish another institution in Hungary constitutes a restriction on the <mask> within the meaning of Article 49 TFEU.


25. ASADE argues that Decree 181/2017 and certain provisions of Law 5/1997 are contrary to, first, the <mask> enshrined in Article 49 TFEU, second, Directive 2014/24, in that those norms do not respect the principle of equal treatment between economic operators, and, third, Article 15(2) of the Services Directive. Moreover, in its view, the restriction on freedom of establishment brought about by the national legislation at issue is not justified on grounds of public interest. ASADE observes that the national legislation at issue is not confined to the areas of health and social security, but covers all types of social services and applies to all non-profit organisations and not solely to voluntary associations. (15) In its submission, this means that the exceptions to the application of EU public procurement rules that were established in the Court’s case-law (16) are not applicable to the case at hand.


In the second place, the appellants suffered indirect discrimination on grounds of nationality vis-à-vis depositors with the Greek branches. In particular, first, that discrimination is contrary to <mask>. Second, a vague risk that a haircut in the deposits held in the Greek branches might have triggered a deposit flight in Greece cannot justify discriminatory treatment. Third, the support given by the Euro Group to the PSI despite the risk of contagion to Laïki and BoC shows that the appellants are discriminated against vis-à-vis depositors and shareholders of Greek banks.


In the light of all the foregoing considerations, the answer to the first question is that the <mask> enshrined in Article 49 TFEU must be interpreted as meaning that, in respect of deductions applied to the gross amount of a tax on deposits made by customers of credit institutions with their registered offices or agencies in the territory of a region of a Member State,


(State aid – Swedish air transport market – Aid granted by Sweden to an airline amid the Covid-19 pandemic – Guarantee – Decision not to raise any objections – Commitments as a condition to make the aid compatible with the internal market – Aid intended to make good the damage caused by an exceptional occurrence – <mask> – Free provision of services – Equal treatment – Duty to state reasons)


The concept of ‘establishment’ within the meaning of the FEU Treaty provisions on <mask> involves the actual pursuit of an economic activity through a fixed establishment in the host Member State for an indefinite period. Consequently, it presupposes actual establishment of the company concerned in that Member State and the pursuit of genuine economic activity there (judgment of 22 November 2018, Vorarlberger Landes- und Hypothekenbank, C‑625/17, EU:C:2018:939, paragraph 35 and the case-law cited).


It has to be recalled in that regard that it does not follow from the requirement that the price must be equitable within the meaning of Article 5(4) of the directive that it must necessarily be based on the highest possible share price.   On the contrary, an equitable share price within the meaning of Article 5(4) of Directive 2004/25 must reflect the true economic value of a share in the offeree company. That is because, on the one hand, takeovers should facilitate <mask> and, on the other hand, they should not disadvantage or infringe the fundamental property rights of minority shareholders. This is illustrated, moreover, by the basic legislative decision that, as a rule, the highest price paid by the offeror should be regarded as an equitable price since an undertaking is neither under- nor over-valued on a model, properly functioning, market.


52. As public procurement rules under EU law were initially developed in the context of fundamental freedoms, and while I acknowledge that there is some overlap between those freedoms and other areas of law – namely competition law or State aid – (36) the concepts of ‘services of general interest’ and ‘economic activity’ used in the context of fundamental freedoms tend to vary from the ones developed in competition law. (37) Thus, according to the case-law concerning <mask>, it is the provision of services for remuneration that must be regarded as an economic activity. (38)


In addition to an infringement of <mask>, consideration must also be given to an infringement of the prohibition of State aid. Progressive taxation of economically stronger undertakings could also constitute aid to economically weaker undertakings, which are taxed at a lower level on account of the progressive tax rate, and as such be incompatible with the single market.


69. The Court touched upon – but did not explicitly decide – this issue in its judgment in Commission v United Kingdom, (55) in which it recognised the compatibility with the <mask> of a national provision whereby the assessment as to whether the losses of a non-resident subsidiary are final within the meaning of paragraph 55 of the judgment in Marks & Spencer (56) is to be made ‘as at the time immediately after the end’ of the accounting period in which the losses arose.


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


In the present case, it would appear from the case file that the two funds which acquired the two commercial complexes in question did so as a form of passive investment rather than to establish a business in or otherwise use the real estate in question. It follows that the funds in the main proceedings have not made use of their right to <mask>, but only of their right to the free movement of capital.   Consequently, as the Commission stated, the alleged difference in treatment must be examined solely from the perspective of the free movement of capital.


In those circumstances, the restriction on <mask> that national legislation, such as that at issue in the main proceedings, which confers on an administrative authority the power to decide to close with immediate effect a commercial establishment on the ground that it suspects the exercise, within that establishment, of a prostitution business without the authorisation required by that regulation, must be regarded as being justified by overriding reasons in the public interest, and suitable for securing the attainment of the objectives pursued by the legislation, namely the prevention of the commission of criminal offences against persons who engage in prostitution and the protection of public health.


The freedom of the Member States as to the choice of the management method that they judge to be most appropriate for the performance of works or the provision of services cannot, however, be unlimited. That freedom must, on the contrary, be exercised with due regard to the fundamental rules of the FEU Treaty, in particular the free movement of goods, the <mask> and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency (the judgment in Irgita, paragraph 48).


The referring court considers that that legislation raises questions as to its compatibility with EU law. In particular, by referring to paragraph 80 of the judgment of 24 May 2011, Commission v Belgium (C‑47/08, EU:C:2011:334), the referring court recalls that Article 49 TFEU guarantees that all nationals of a Member State who establish themselves in another Member State for the purpose of pursuing activities there as self-employed persons receive the same treatment as nationals of that State and prohibits any discrimination on grounds of nationality. The referring court also refers to the judgment of 23 September 2003, Ospelt and Schlössle Weissenberg (C‑452/01, EU:C:2003:493, paragraph 24), wherein the Court held that, although Article 345 TFEU does not call into question the Member States’ right to lay down specific measures applying to the acquisition agricultural land, such measures remain subject to the rules of EU law relating to, inter alia, non-discrimination, <mask> and free movement of capital.


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


6. Directive 2014/24 lays down rules that seek to coordinate national procedures for the award of public contracts above a certain threshold amount so that they may be consistent with the principle of the free movement of goods, <mask> and freedom to provide services, as well as ensuring the implementation of principles, such as equal treatment, non-discrimination, proportionality and transparency. That directive is also intended to ensure effective competition in public procurement.


In the instant case, all the parties that submitted observations to the Court, except Impresa Pizzarotti, took the view that the restriction on <mask> introduced by the Romanian legislation at issue in the main proceedings is justified by the need to ensure the balanced allocation of the power to tax between Member States, which constitutes, as is apparent from the preceding paragraph, an overriding reason in the public interest.


According to the referring court, the part-owner shipping companies pursue economic activity in Denmark by means of the four vessels in question and their registration in the DIS cannot therefore be separated from the exercise of the <mask>.   VAS Shipping stated that no seaman who is a third-country national leaves the vessel at any time during entries into Danish ports and that all work on land is performed by Danish land-based personnel employed by the port of call.


(Request for a preliminary ruling from the Bundesfinanzhof (Federal Finance Court, Germany)) (Reference for a preliminary ruling – Articles 43 and 48 EC – <mask> – Corporation tax – Trade tax – Deduction of losses incurred by a permanent establishment situated in a Member State and belonging to a company situated in another member State – Avoidance of double taxation by exemption of the income of the non-resident permanent establishment – Comparability of the situations – Concept of ‘final losses’)


In particular, the question arises whether the restriction on the <mask> formed by Section 11 of the WRPA 1999 is appropriate to ensure that the objective it pursues is achieved and that it does not go beyond what is necessary to achieve it, in so far as that provision limits the protection of the full and automatic exclusion from the bankruptcy estate only to pension rights accrued under UK tax-approved pension arrangements, precluding, inter alia, pension rights accrued under pension arrangements which are tax approved not in the United Kingdom but in an EU Member State, such as the home Member State of the migrant worker whose pension rights are at issue, which are subject to partial and discretionary exclusion from the bankruptcy estate under Section 12 of the WRPA 1999.


In the present case, while it is true that the measure at issue relates to individual aid which benefits only Finnair, the applicant has not shown how that exclusive character is such as to deter it from providing services from Finland and to Finland, or from exercising its <mask> in that Member State. In particular, it fails to identify the elements of fact or law which cause the individual aid at issue to produce restrictive effects that go beyond those which trigger the prohibition in Article 107(1) TFEU, but which, as was found in paragraphs 42 to 63 above and in paragraphs 82 to 92 above, are nevertheless necessary and proportionate to remedy the serious disturbance in the Finnish economy caused by the COVID-19 pandemic, in accordance with the requirements of Article 107(3)(b) TFEU.


‘Does Article 63 of Directive [2014/24/EU], in conjunction with the principles of <mask> and freedom to provide services enshrined in Articles 49 and 56 [TFEU], preclude the application of the provisions of Italian law relating to reliance on the capacities of other entities and exclusion from award procedures set out in the fourth subparagraph of Article 89(1) of the Public Procurement Code … under which, if untruthful declarations are made by an ancillary undertaking regarding the existence of convictions in criminal proceedings that have become final, which may demonstrate serious professional misconduct, the contracting authority must in all cases exclude the economic operator taking part in the tendering procedure, without requiring or permitting that operator to indicate another suitable ancillary undertaking to replace the former undertaking, which is, conversely, permitted in other cases where the entities on whose capacities the economic operator intends to rely fail to meet a relevant selection criterion or are subject to mandatory grounds for exclusion?’


See, for example, judgments of 12 December 1990, SARPP (C‑241/89, EU:C:1990:459, paragraph 8); of 2 February 1994, Verband Sozialer WettbewerbClinique (C‑315/92, EU:C:1994:34, paragraph 7); of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola (C‑87/97, EU:C:1999:115, paragraph 16); of 29 April 2004, Weigel (C‑387/01, EU:C:2004:256, paragraph 44: the question relating to the application of Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (OJ 1983 L 105, p. 64) had been submitted only by the applicants to the main proceedings and the Commission); of 21 February 2006, Ritter-Coulais (C‑152/03, EU:C:2006:123, paragraph 29: questions referred for a preliminary ruling concerning <mask> and the free movement of capital and the raising by the Court of its own motion, at the behest of the Commission, of a question concerning the free movement of workers); of 25 January 2007, Dyson (C‑321/03, EU:C:2007:51, paragraphs 24 to 26); of 30 May 2013, Worten (C‑342/12, EU:C:2013:355, paragraphs 30 and 31); and of 12 December 2013, Hay (C‑267/12, ECLI:EU:C:2013:823, paragraph 23: the referring court assumes this to be a case of indirect discrimination on the ground of sexual orientation whereas the Court determines whether it is a case of direct discrimination). For a reminder of the case-law, see Opinion of Advocate General Mengozzi in Fonnship and Svenska Transportarbetareförbundet (C‑83/13, EU:C:2014:201, paragraph 17).


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


VAS Shipping considers, however, that the measures in question cannot be dissociated from the conditions relating to the registration of a vessel in a maritime registry of a Member State and the continued exploitation of the vessel in that State. This is particularly evident, according to VAS Shipping, as those measures concern only vessels registered in a maritime registry of the Member State in question, while vessels registered in other Member State can freely call at Danish ports and the question whether their crew includes third-country nationals is irrelevant. VAS Shipping thus considers that the measures in question constitute a restriction of the <mask> pursuant to Article 49 TFEU.


Therefore, I take the view that Mr Biffi’s situation is not unlike that of the applicant in the seminal ruling of the Court in Konstantinidis.   Mr Biffi is disadvantaged in comparison to the way a German national would be treated in the same circumstances because, as was the case with respect to the (mandatory) spelling, or misspelling of Mr Konstantinidis’ name under German law, the loss of the right to refer to his achievements in national championships in future events is of a degree of inconvenience to interfere with Mr Biffi’s <mask> under that article.   Indeed the Court held in Konstantinidis that the impact on the measure impugned for attracting clients was relevant to this assessment.


In particular, that court observes that the restrictions set out in national law on subcontracting may make it more difficult for undertakings, particularly small and medium-sized undertakings, to access public contracts, thereby hindering the exercise of <mask> and the freedom to provide services. It states that those restrictions may also deprive public purchasers of the opportunity to receive a greater number and variety of tenders. Allowing subcontracting to be used for only part of the contract, set in abstract terms as a certain percentage of the value thereof, irrespective of the possibility of verifying the capacity of potential subcontractors and without mention of the essential character of the tasks in question is not provided for under Directive 2004/18 and runs counter to the objectives of the opening up of competition and facilitating access to public contracts by small and medium-sized enterprises.


It is common ground between the parties to the main proceedings that the work permit requirement, laid down in Paragraph 13(1) of the Law on foreign nationals, in conjunction with Paragraph 33(4) of the Regulation on foreign nationals, amounts to a restriction on the <mask> enshrined in Article 49 TFEU. However, while the Public Prosecutor’s Office takes the view that that restriction is compatible with EU law, VAS Shipping submits that that national legislation requires shipowners from other countries of the European Union to change their recruitment policy, without it being necessary to safeguard the public interest objective pursued.


Pursuant to Article 3(1) of Directive 2000/31, each Member State is to ensure that the information society services provided by a service provider established in its territory comply with the national provisions applicable in the Member State in question that fall within the coordinated field. According to Article 3(2) of that directive, on the other hand, Member States other than that in whose territory a service provider is established may not, in principle, for reasons falling within the coordinated field, restrict the free movement of such services. It is therefore the information society services that benefit from the <mask> referred to in the first question.


Hungary states that that amendment is also not in the interest of the <mask>, that it constitutes rather a direct interference in economic relationships and that it nullifies the lawful competitive advantage of certain easily identifiable Member States in which the level of pay is lower, the EU legislature having thus introduced a measure the effect of which is to distort competition.


In support of the action, the applicant relies on four pleas in law alleging, respectively: (i) an infringement of the principles of non-discrimination, <mask> and freedom of establishment; (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.


Taking the view, however, that its activity constituted an information society service, which, under Article 4 of Directive 2000/31, cannot be made subject to prior authorisation or any other requirement having equivalent effect, Star Taxi App made a prior administrative complaint seeking revocation of Decision No 626/2017. That complaint was rejected on the ground that the regulations at issue had been made necessary by the considerable number of bookings made with unauthorised legal entities, and that the regulations did not infringe the <mask> by electronic means since they laid down a framework for an intermediation service relating to the transport of passengers by taxi.


Do the principles of freedom of establishment and <mask> laid down in Articles 49 and 56 TFEU [and] Articles 15 and 16 of [the Framework Directive], together with the principles on safeguarding pluralism of information sources and competition in the broadcasting sector laid down by [the Audiovisual Media Services Directive] and by [the Framework Directive], preclude national legislation such as [TUSMAR] which, in Article 43(9) thereof and in [the provision at issue in the main proceedings], sets very different thresholds (20% and 10% respectively) for “entities required to be entered in the Register of Communications Operators established under Article 1(6)(a)(5) of Law No 249 of 31 July 1997” (that is, entities that have received a concession or authorisation under the legislation in force, from AGCOM or from other competent administrative authorities, and concessionaires of advertising, however transmitted, publishers, and so on, referred to in Article 43(9)), on the one hand, and for undertakings operating in the electronic communications sector, as defined above (covered by [the provision at issue in the main proceedings]), on the other?’


‘A foreign insurance undertaking established in a Member State … other than the Republic of Poland which, under the <mask>, and by a means other than the establishment of a branch, intends to engage in the business of insurance in the territory of the Republic of Poland with respect to the types of insurance referred to under Group 10 of Part II of the Annex to the Law, with the exception of carrier’s civil liability insurance, shall submit to the supervisory authority, through the supervisory authority of the State in which it is established:


In the second place, the Republic of Poland is of the view, first, that the <mask> guaranteed in Article 56 TFEU rests not on the principle of equal treatment, but on the prohibition of discrimination, and, second, that foreign service providers are in a situation that is different from and more difficult than that of the service providers established in the host Member State, primarily because they must comply with the rules of their Member State of origin and the rules of that host Member State.


By its third question, the referring court wishes to know, in essence, whether the <mask> enjoyed by Google under Article 56 TFEU in conjunction with Articles 62 and 54 TFEU is infringed by the specific registration obligation under Article 7/B of the Law on the taxation of advertisements. This is against the background of the fact that an existing registration pursuant to other tax legislation (that is to say, another tax assessment) grants exemption from the specific registration obligation under Article 7/B of the Law on the taxation of advertisements.


The request for a preliminary ruling concerns the interpretation of Article 1(10) and Article 11 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), as amended by Commission Regulation (EU) No 1336/2013 of 13 December 2013 (OJ 2013 L 335, p. 17) (‘Directive 2004/18’), and the principles of <mask> and of opening up to competition as far as possible in the field of public service contracts. Directive 2004/18 was repealed by Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement (OJ 2014 L 94, p. 65).


Secondly, the applicant claims that, in its compatibility assessment for the measure at issue, the Commission should have determined whether the form of aid granted in the present case, that is to say a State loan guarantee, conformed to the principles of <mask> and freedom of establishment. By failing to do so, the Commission erred in law. The applicant submits that reserving the aid only to Finnair restricts the rights granted to other EU airlines to provide their services freely within the internal market. The contested decision therefore causes an unjustified restriction of the principles of the freedom to provide services and freedom of establishment.


The <mask> 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 freedom of establishment, 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.


‘Do the principles of freedom of establishment and <mask> referred to in Articles 49 and 56 of the [TFEU], Article 71 of [Directive 2014/24], which does not contemplate quantitative limitations on subcontracting, and the EU-law principle of proportionality preclude the application of national legislation in matters relating to public procurement, such as the Italian rule set out in the third sentence of Article 105(2) of [Legislative Decree No 50/2016], pursuant to which subcontracting cannot exceed 30% of the total amount of the contract for works, services or supplies?’


As a preliminary point, it should be noted that Directive 2004/18, like the other directives on public procurement, as is apparent, in essence, from recital 2 thereof, seeks to ensure compliance, in the award of public contracts with, inter alia, the free movement of goods, freedom of establishment and the <mask>, 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 (judgments of 12 July 2001, Ordine degli Architetti and Others, C‑399/98, EU:C:2001:401, paragraphs 52 and 75, and of 27 November 2019, Tedeschi and Consorzio Stabile Istant Service, C‑402/18, EU:C:2019:1023, paragraph 33).


I note in that regard that, according to settled case-law, the requirement of prior authorisation for treatment planned in another Member State, to which responsibility for payment by the competent institution is made subject, in accordance with the rules governing cover in force in the Member State to which that institution belongs, constitutes, for both patients and service providers, an obstacle to the <mask>, since such a system deters, or even prevents, those patients from approaching providers of medical services established in a Member State to obtain the treatment in question.   In other words, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State.   Accordingly, such authorisation may indeed constitute a restriction on the freedom to provide services.


Where a national measure affects both the free movement of workers and the <mask> the Court will, in principle, examine it in relation to only one of those two fundamental freedoms where it is shown that, in the circumstances of the case, one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, judgment of 14 October 2004, Omega, C‑36/02, EU:C:2004:614, paragraph 26 and the case-law cited).


In the second situation, an insured person is entitled to be reimbursed directly by the competent institution in an amount equivalent to that which it would ordinarily have reimbursed if the insured person had been granted such authorisation when, for reasons relating to his or her state of health or to the need to receive urgent treatment in a hospital, that person was prevented from applying for such authorisation or was not able to wait for the decision of the competent institution on the application for authorisation submitted. The Court has held in that respect that legislation which excludes, in all cases, reimbursement in respect of hospital treatment given in another Member State without authorisation, deprives the insured person of reimbursement in respect of such treatment, even though all other conditions for reimbursement are met. Such legislation, which cannot be justified by requirements of public interest and, in any event, does not satisfy the requirement of proportionality, therefore constitutes an unjustified restriction of the <mask> (see, by analogy, as regards Article 49 EC and Regulation No 1408/71, Elchinov, paragraphs 45 to 47, 51 and 75).


50. While the first two questions referred mention only Article 49 TFEU – and not Article 56 TFEU – the concepts of ‘services’ and ‘economic activity’ are largely defined by the latter Treaty provision. There exists no simple criterion for distinguishing between the two freedoms, although the distinction appears to lie in the temporary nature of the activities. (33) On account of the grey area between these two freedoms and as together they form the basis of Directive 2014/24, in the analysis of the first and second questions, reference is made in the present Opinion not only to freedom of establishment, but also to <mask>.


As regards the various arguments raised before it, that court questions, in the first place, whether the restriction on the <mask> guaranteed by Article 56 TFEU resulting from the prohibition laid down in Paragraph 7(11) of the RStV can be justified in the light of the overriding reason of general interest pursued by that provision, namely the protection of media pluralism.


on the one hand, the perspective of the <mask> in the internal market. In line with that freedom, restrictions which preclude an undertaking from a Member State with low labour costs from posting its workers to provide services in another Member State with higher labour costs must be removed. The States of origin of such undertakings emphasise the need to facilitate the freedom to provide services. They maintain, therefore, that workers on temporary postings should remain subject to the legislation of the State of origin and that the fewest possible provisions of the State of destination should apply to such workers;


Furthermore, the Court has held with respect to the practice of what is commonly referred to as ‘cold-calling’, that is, contacting individuals by telephone without their prior consent in order to offer them financial services, that ‘the prior existence of an identifiable recipient [is not] a condition for application of the provisions on the freedom to provide services’.   The Court also indicated its motivation for ruling in this way: ‘the <mask> would become illusory if national rules were at liberty to restrict offers of services’.   Thus, already the preparation of the provision of a service falls within the scope of Article 56 TFEU.


(Action for annulment – Directive (EU) 2018/957 – Directive 96/71/EC – Posting of workers in the framework of the provision of services – Rules on working conditions and the health and safety of workers – Incorrect legal basis – Discriminatory, unnecessary or disproportionate restrictions – Infringement of the principle of <mask> – Remuneration of posted workers – Long-term posted workers – Infringement of Regulation (EC) No 593/2008 on the law applicable to contractual obligations – Road transport)


(Reference for a preliminary ruling – <mask> for lawyers – Directive 77/249/EEC – Article 5 – Requirement that lawyers established in another Member State who represent clients in legal proceedings before national courts work in conjunction with a domestic lawyer – Whether a party represented by a foreign lawyer in preliminary ruling proceedings may be represented by the same lawyer in the ensuing national proceedings)


According to the information supplied by the referring court, the visiting lawyer has to provide the national courts with the name of an Irish-qualified lawyer who would be available to assist him or her should that lawyer require help on matters of national law, national practice and procedure or ethical rules. It would appear that the legislation leaves it to the visiting lawyer and the domestic lawyer to define their roles in each case, and the professionals in question therefore have a degree of flexibility in arranging how they will cooperate. In that context, it does not appear that <mask> is harmed more than is necessary to attain the public interest objectives sought.


Consequently, it cannot be excluded that the possible risk of seriously undermining the financial balance of a social security system may constitute a legitimate objective capable of justifying a difference in treatment based on religion. The objective of maintaining a balanced medical and hospital service open to all may also fall within the derogations on grounds of public health in so far as it contributes to the attainment of a high level of health protection (see, by analogy, in the area of <mask>, judgment of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 42 and the case-law cited).


In the third place, as regards legal services involving activities connected, even occasionally, with the exercise of official authority, covered by Article 10(d)(v) of Directive 2014/24, those activities and, therefore, those services are excluded, under Article 51 TFEU, from the scope of the provisions of the Treaty relating to the freedom of establishment and from those relating to <mask> under Article 62 TFEU. Such services are different from those falling within the scope of the directive in that they directly or indirectly participate in the exercise of public authority and in functions the purpose of which is to safeguard the general interests of the State or other public authorities.


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


This is because any harmonising measure which protects a fundamental social interest such as the rights of posted workers hinders to some extent the <mask> of the undertakings that use such workers. However, such a restriction impacts the internal market to a much lesser extent than an equivalent national measure, since the former applies throughout the territory of the European Union. The existence and restrictive effects of such a measure can be eliminated only by making working conditions the same in every Member State, a step which the European Union is not competent to initiate.


Since the question referred for a preliminary ruling mentions a number of provisions of the Treaty, namely those relating to, respectively, freedom of establishment, the <mask> and the free movement of capital, and the provisions of Articles 18, 26 and 110 TFEU, it is necessary, first, to clarify the scope of that question in accordance with the specific features of the dispute in the main proceedings.


Article 2(1)(c) and Article 3(1) and (2) of Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors, as amended by Council Directive 82/76/EEC of 26 January 1982, as well as the annex thereto, must be interpreted as meaning that any full-time or part-time specialist medical training begun before the entry into force, on 29 January 1982, of Directive 82/76 and continued after the expiry, on 1 January 1983, of the period prescribed for the transposition of that directive must, in respect of the period of that training running from 1 January 1983 until the end of that training, be subject to appropriate remuneration within the meaning of that annex, provided that that training concerns a medical specialty which is common to all the Member States or to two or more of them and is mentioned in Article 5 or Article 7 of Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and <mask>.


The protection of passengers should cover not only passenger services between ports situated in the territory of the Member States, but also passenger services between ports and ports situated outside the territory of the Member States, taking into account the risk of distortion of competition on the passenger transport market. Therefore the term “Union carrier” should, for the purposes of this Regulation, be interpreted as broadly as possible, but without affecting other legal acts of the Union, such as Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport [(OJ 1986 L 378, p. 4)] and Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of <mask> to maritime transport within Member States (maritime cabotage) [(OJ 1992 L 364, p. 7)].


(Reference for a preliminary ruling — Article 49 TFEU — Article 15(2) and Article 16 of the Charter of Fundamental Rights of the European Union — Freedom of establishment and <mask> — Restriction — Decision to immediately close a commercial enterprise — No statement of reasons — Overriding reasons in the public interest — Prevention of criminal offences against persons engaged in prostitution — Protection of public health — Proportionality of the restriction on the freedom of establishment — Articles 47 and 48 of the Charter of Fundamental Rights — Effectiveness of judicial review — Rights of defence — General principle of the right to good administration)


However, the insurance contract at issue in the main proceedings, which is intended to cover the civil liability of the manufacturer of the breast implants concerned with respect to the harm associated with those implants, was entered into by PIP, a manufacturer of prostheses established in France, on the one hand, and the insurance company AGF IARD, also established in France, on the other. The conclusion of that contract does not therefore fall within the scope of the exercise of the <mask>.


As a preliminary point, it should be stressed that this case concerns only the scope ratione materiae of the <mask> under the FEU Treaty. It does not concern the general compatibility of the national measure with the freedom to provide services. In other words, the only issue which the referring court seeks to determine with the help of the Court is whether there is a restriction under Article 56 TFEU (which would be the case if the situation fell within the scope of that provision) and not whether, in addition, a restriction would be justified by an overriding reason relating to the public interest.


(Request for a preliminary ruling — Fundamental freedoms — <mask> — Restrictions and discrimination — Substantive tax law and law of tax procedure — Turnover-based tax on advertisements — Taxation of foreign activities in the Hungarian language — Principle of territoriality in EU law — Obligation to register for tax purposes — Different registration procedures for nationals and foreigners — Penalties in the case of non-registration)


Is EU law, and in particular the right of establishment and <mask> (Articles 49 et seq. and 56 et seq. TFEU), the principles of legal certainty, non-discrimination, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and – where deemed applicable – Articles 3 and 43 of Directive 2014/23/EU, to be interpreted as precluding such a provision, even if the operators in the sector currently interested in entering the market […] did not participate in the call for tenders originally held to award the concession which was due to expire and which was continued with the outgoing concessionaire on the new contractual terms described, or does […] any restriction on access to the market […] apply only if they actually participated in the original call for tenders?’


Clearly, such a finding implies that under the law as it currently stands the scope ratione materiae is very large, raising the question whether the Court should consider introducing a limitation such as it has done in Keck and Mithouard   in 1993 regarding the free movement of goods. The line of argumentation for such a limitation would be the following: as in Keck and Mithouard,   we are here in the presence of an indistinctly applicable measure, in law and in fact, to the <mask> and the corresponding freedom to receive such services. There is therefore no discriminatory element involved: from the perspective of the service provider, any foreign firm wishing to establish itself in Děčín with a view to offering gambling activities finds itself in exactly the same situation as BONVER WIN and could not carry out its activity in the specified part of town. Conversely, as regards the service recipient, no recipient — be he or she a Czech or foreign recipient — can receive gambling services in the specified part of the town. On the assumption that the concept of a ‘certain selling arrangement’, as developed in Keck and Mithouard,   is in reality to mean the market access of a firm intending to sell goods or, in the present case, to offer its services, why not exclude from the scope of Article 56 TFEU those measures indistinctly applicable in law and in fact which do not impede the market access of service providers from other Member States?


Is the correct application of [the MiFID], in particular Articles 8, 23 and 51 of that directive, and of the principles and rules of the Treaties with regard to non-discrimination, proportionality, <mask> and the right of establishment precluded by provisions of national law, such as those in Article 55(2) of [the TUF], as amended, and also Article 111, paragraph 2 of the [Regulation laying down the rules implementing Legislative Decree No 58 of 24 February 1998 on intermediaries, adopted by Consob by Resolution No 16190 of 29 October 2007], that:


Where a national measure relates both to the free movement of goods and to the <mask>, the Court will in principle examine it in relation to one only of those two fundamental freedoms where it is shown that one of them is entirely secondary in relation to the other and may be considered together with it (judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 58 and the case-law cited).


In that regard, it must be recalled that, first, the protection of consumers, in particular recipients of legal services provided by persons involved in the administration of justice, and, second, the proper administration of justice are objectives which feature among those which may be regarded as overriding reasons in the public interest capable of justifying restrictions both on the <mask> (judgment of 18 May 2017, Lahorgue, C‑99/16, EU:C:2017:391, paragraph 34) as well as, as observed by the Advocate General in point 66 of his Opinion, on the free movement of workers and the freedom of establishment (see, to that effect, judgments of 12 July 1984, Klopp, 107/83, EU:C:1984:270, paragraph 20, and of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 122).


The Extended Chamber proceeds on the assumption that, in the present case, what is at issue is a possible restriction of the freedom of customers to obtain services and not a possible restriction of the <mask> in respect of their supplier, which is a Czech company having its seat in that Member State. The referring court observes that it follows from the case-law of the Court that services which a provider established in a Member State provides, without travelling, to a recipient established in another Member State constitute a cross-border provision of services and that such recipients also include tourists or persons travelling for the purposes of study. Moreover, that court considers that national legislation, such as the Czech legislation in the present case, which is indiscriminately applicable to nationals of that Member State and those of other Member States, is, as a general rule, capable of falling within the scope of the provisions relating to the fundamental freedoms guaranteed by the FEU Treaty only in so far as it applies to situations connected with trade between Member States.


By its two questions which merit a single answer, the referring court, in essence, seeks to ascertain whether the <mask> under Article 56 TFEU applies to a situation in which a company established in a Member State loses, following the entry into force of local legislation determining the places in which it is permitted to carry out its activity, the authorisation to operate that activity on the ground that some of its customers come from a Member State other than that in which that company is established. In this connection, the referring court would like to know whether the non-discriminatory nature of those rules and the existence of a de minimis rule in the area of the freedom to provide services are relevant to that answer.


77. Moreover, double taxation based on EU law (in casu, the VAT Directive) affects the fundamental rights of the taxable person (see Articles 15, 16 and 17 of the Charter of Fundamental Rights of the European Union) in the implementation of EU law. (26) Furthermore, double taxation in respect of VAT for cross-border supplies of goods and services would impair the free movement of goods and the <mask>.


Where a national measure relates to both the free movement of goods and the <mask>, the Court will in principle examine that measure in relation to only one of those two fundamental freedoms if it is apparent that one of them is entirely secondary in relation to the other and may be considered together with it (judgments of 22 January 2002, Canal Satélite Digital, C‑390/99, EU:C:2002:34, paragraph 31 and the case-law cited, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 78).


(Failure of a Member State to fulfil obligations – Admissibility – Jurisdiction of the Court – General Agreement on Trade in Services – Article XVI – Market access – Schedule of specific commitments – Requirement of authorisation – Article XX(2) – Article XVII – National treatment – Service provider having its seat in a third country – National legislation of a Member State imposing conditions for the supply of higher education services within its territory – Requirement relating to the conclusion of an international treaty with the State in which the provider has its seat – Requirement relating to the provision of education in the State in which the provider has its seat – Modification of conditions of competition to the benefit of national providers – Justification – Public order – Prevention of deceptive practices – Article 49 TFEU – Freedom of establishment – Directive 2006/123/EC – Services in the internal market – Article 16 – Article 56 TFEU – <mask> – Existence of a restriction – Justification – Overriding reason in the public interest – Public order – Prevention of deceptive practices – High quality of the education – Charter of Fundamental Rights of the European Union – Article 13 – Academic freedom – Article 14(3) – Freedom to found educational establishments – Article 16 – Freedom to conduct a business – Article 52(1))


That is why the second sentence opens with ‘therefore’, adding a list introduced with an illustrative ‘such as’. However, far from adding area-related block exemptions to the scope of the directive, that part of the second sentence simply confirms that would-be service providers cannot challenge a generally applicable regulatory regime on the ground that it impedes their unlimited <mask>. Thus, such providers cannot ask for a special regulatory regime, that would differ from that applicable to ‘individuals acting in their private capacity’, as the recital concludes.


Moreover, the referring court asks whether it would not be appropriate to establish, in the area of the <mask>, a de minimis rule, based on the existence of a sufficient link between the legislation at issue and the freedom to provide services. It takes the view that non-discriminatory legislation applicable at municipal level does not fall within the scope of Article 56 TFEU.


Any measures which prohibit, impede or render less attractive the exercise of such freedoms must be considered to be restrictions on the <mask>.   That is all the more true when prospective advertisers come from other Member States, in so far as restrictions on the possibility of using advertising services make it particularly difficult for them to access the market of the Member State which established those restrictions. Such restrictions may exist, in particular, when broadcasting of advertisements for the activities of the prospective advertiser is permitted only on local television networks, whilst it is prohibited on national television networks.


Assuming that I have understood the question correctly, and leaving aside the puzzling issue of under which provision of national law could a collective agreement that is not universally applicable still be declared binding on service providers from other Member States, the response to that question would indeed subsequently follow from the analysis of restrictions to the <mask> under Article 56 TFEU.


To that end, I would point out from the outset that that directive is part of a series of acts of EU law on harmonisation in the field of substantive private law that were adopted on the basis of Article 100a of the EEC Treaty (now, after amendments, Article 114 TFEU). As it forms part of that legislative context, the directive takes account of the need to protect consumers,   in conjunction with directives geared to the implementation of the internal market.   It is apparent from the first three recitals of Directive 90/314 that the establishment of common rules on packages contributes to the elimination of the obstacles to the <mask> and the distortions of competition amongst operators established in different Member States, whilst enabling consumers ‘to benefit from comparable conditions when buying a package in any Member State’.


For a restriction on the <mask> to be justified by an overriding reason relating to the public interest, it must be suitable for securing the attainment of the objective which it pursues and it must also be proportionate, that is to say it does not go beyond what is necessary in order to attain that objective. The question therefore arises whether other measures could achieve the same objective, whilst at the same time placing fewer restrictions on the freedom to provide services.


That court notes that the freedom of trade and industry, as enshrined in the Belgian Constitution, is closely linked to the freedom to choose an occupation, the right to engage in work and the freedom to conduct a business, which are guaranteed by Articles 15 and 16 of the Charter, and to several fundamental freedoms guaranteed by the FEU Treaty, such as the <mask> (Article 56 TFEU) and the freedom of establishment (Article 49 TFEU).


The EU single market is a cornerstone of European integration and a key driver for growth and employment and includes inter alia the <mask>, enshrined in Article 56(1) TFEU. The provision of legal services – specifically the provision of legal advice and representation in proceedings before the courts – by lawyers, which is central to this case,   therefore belongs to the fundamental freedoms guaranteed by the Treaties.


However, the national court also observes that, in the advisory opinions that it has delivered on national legislation on subcontracting, it has found that the objective of safeguarding the integrity of public contracts and preventing their infiltration by criminal organisations could justify a restriction on freedom of establishment and the <mask>. It also sets out other reasons which, in its view, justify the thresholds at issue in the main proceedings. Thus, it states, first, that if the 20% limit laid down in Article 118(4) of Legislative Decree No 163/2006 were to be abolished, covert forms of ‘wage dumping’, liable to have an anti-competitive effect, could be practised. Secondly, it states that, if the 30% limit laid down in Article 118(2) of Legislative Decree No 163/2006 were abolished, the implementation of certain public contracts could be jeopardised because of the difficulty which might arise in assessing the viability of – and thus the absence of irregularities in – tenders, as in the case in the main proceedings.


I agree with the Netherlands Government that the situation described in question 3(b) would indeed then constitute a restriction of <mask>. It would impose a burden on the undertakings concerned, because it would require compliance with obligations corresponding to those defined in the PWD beyond the scope of that instrument. The key question would then be whether such a restriction could be justified by overriding reasons relating to the public interest and whether it meets the test of proportionality.


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


Irrespective of the answers to Questions 1 to 3: Does EU law, in particular the <mask> (Articles 56 and 57 TFEU), preclude a provision of national law which also mandatorily requires undertakings which post workers to the territory of another Member State for the purpose of providing a service to comply with terms and conditions of employment within the meaning of Article 3(1) of the Directive and to comply with accompanying obligations (such as, in particular, the obligation to provide a notification regarding the cross-border posting of workers to a public authority in the host Member State and the obligation to retain documents relating to the level of remuneration and to the social security registration of these workers) in situations in which (firstly) the workers posted across borders form part of the mobile staff of a railway undertaking that is active on a cross-border basis or of an undertaking which provides services typical for a railway undertaking (provision of food and drink to passengers, on-board service) on that undertaking’s trains which cross the borders of the Member States, and in which (secondly) the posting is based either on no service contract at all or at least on no service contract between the undertaking making the posting and the recipient of the services which is active in another Member State, because the posting undertaking’s obligation to provide services to the recipient of the services which is active in another Member State is established by way of subcontracts (a subcontracting chain), and in which (thirdly) the posted worker is not in an employment relationship with the undertaking making the posting but rather is in an employment relationship with a third-party undertaking which has hired out its workers to the undertaking making the posting back in the Member State in which the posting undertaking is established?’


On that basis, Directive 2018/957 merely stipulates which provisions of the host State are applicable to posted workers during the period in which the undertakings in which they are employed are engaged in the transnational provision of services. Construed in that way, it resembles a conflict rule, in accordance with which the applicable legislation is identified in order to facilitate the <mask> while also safeguarding appropriate social protection for posted workers. The legal bases laid down in Article 153(2) TFEU do not cover, and are not intended for, such situations.


One can consider that harmonisation to be a means to pursue the aim of achieving, as stated by Advocate General Szpunar in reference to recital 5 of the PWD, ‘a threefold objective, which is the promotion of the transnational provision of services, in a climate of fair competition, and guaranteeing respect for the rights of workers’.   As was also noted by Advocate General Szpunar, the combination of those objectives does not necessarily result in a harmonious whole. For this reason, he considered that it was ‘more coherent to consider [the PWD] as a measure which seeks to reconcile the opposing objectives of the <mask> and the protection of the rights of workers’.


20 Similarly, in so far as the file submitted to the Court contains nothing capable of establishing a link between the situation at issue in the main proceedings and the exercise of the <mask> provided for in Articles 56 to 62 TFEU, the interpretation of those articles does not appear to be relevant for the resolution of that dispute either.


It is important to recall that Directive 77/249, which contains measures intended to facilitate the effective pursuit of the activities of lawyers by way of provision of services, must be interpreted, in particular, in the light of Article 56 TFEU, which prohibits any restriction on the <mask> and which logically requires the abolition of all discrimination against the person providing the service by reason of his or her nationality or the fact that he or she is established in a Member State other than that in which the service is to be provided (see, to that effect, judgment of 25 February 1988, Commission v Germany, 427/85, EU:C:1988:98, paragraphs 11 and 13).


The FNV brought an appeal before the referring court, the Hoge Raad der Nederlanden (Supreme Court, Netherlands), against that decision of the appeal court, in so far as it is based on a literal interpretation of Article 1(1) and (3) of Directive 96/71. Van den Bosch Transporten, Van den Bosch Transporte and Silo-Tank submitted a cross-appeal, in so far as the appeal court decided that Article 44 of the ‘Goods Transport’ CLA cannot be considered to be an unjustified obstacle to the <mask>.


As a preliminary point, it should be borne in mind that Article 18 TFEU applies independently only to situations governed by EU law for which the Treaty lays down no specific rules of non-discrimination. However, the Treaty lays down such a specific rule, in particular, in Article 56 TFEU in relation to the <mask> (see, to that effect, judgment of19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 32 and the case-law cited) and in Article 63 TFEU in relation to the free movement of capital (see, to that effect, order of 6 September 2018, Patrício Teixeira, C‑184/18, not published, EU:C:2018:694, paragraphs 15 and 16 and the case-law cited).


However, the objective of those regulations – which is to promote the freedom of movement for workers, and, in the case of the posting of workers, the <mask>, by offering an advantage in the matter of social security to undertakings exercising those freedoms – might be undermined if the interpretation of Article 14(2) of Regulation No 987/2009 were to make it easier for those undertakings to use EU legislation on that subject with the sole aim of exploiting the differences between the national social security systems. In particular, such exploitation of that legislation would be likely to have a ‘race to the bottom’ effect on the social security systems of the Member States or might even lead to a reduction in the level of protection that they offer.


As regards, in the third and last place, the question whether the prohibition established by Paragraph 7(11) of the RStV may be regarded as undermining the freedom to broadcast as guaranteed by Article 11 of the Charter, or as being contrary to the principle of equal treatment, it should be noted, as a preliminary point, that, having regard to the Court’s settled case-law, once it has been established in the context of the examination under Article 56 TFEU that such regulation is liable to impede the <mask> which the Member State concerned considers to be justified by an overriding reason in the public interest, in this case the objective of preserving media pluralism, the said legislation must be regarded as implementing Union law within the meaning of Article 51(1) of the Charter, so that it must comply with the fundamental rights guaranteed by the Charter (see, to that effect, judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraphs 63 to 65).


It should be recalled that, according to the Court’s settled case-law, the E 101 and A 1 Certificates are intended, like the rules of substantive law laid down in Article 14(1)(a) and (2)(b) of Regulation No 1408/71 and in Article 12(1) and Article 13(1) of Regulation No 883/2004, to facilitate freedom of movement for workers and <mask> (see, to that effect, judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 35 and the case-law cited).


It is settled case-law that medical services provided for consideration fall within the scope of the provisions on the <mask>, including situations where care is provided in a hospital environment.   The freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to travel to another Member State in order to receive those services there.


Is EU law, and in particular the right of establishment and <mask> (Articles 49 et seq. and 56 et seq. TFEU), the [EU-law] principles of legal certainty, non-discrimination, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and – where deemed applicable – Articles 3 and 43 of Directive 2014/23/EU, to be interpreted as precluding a provision such as that contained in the legislation implementing the aforementioned Decree, and in particular in Customs and Monopolies Agency Notice No 0133677 of 1 December 2017, which, in accordance with the provisions of Article 20(1) of Decree-Law No 148 of 16 October 2017, and on the basis of the provisions of the first paragraph of Article 4 of the concession agreement for the management of instant lotteries, which provides for the renewal of the same no more than once, changes the expiry date of the concession to 30 September 2028 – without prejudice to the provisions of Article 4 regarding the division of the concession period into two periods of five and four years respectively (therefore, once the first period of five years commencing on 1 October 2019 has expired, the continuation for the next four years until the expiry date of 30 September 2028 is contingent on a positive appraisal of the management performance by the Customs and Monopolies Agency, to be indicated by 30 March 2024) – and requires the company to arrange payment of EUR 50 million by 15 December 2017, EUR 300 million by 30 April 2018 and EUR 450 million by 31 October 2018, taking into account that:


National legislation that restricts the freedom of choice of small local authorities when using a central purchasing authority, by stipulating two exclusively public organisational models with no participation by private persons or undertakings, is therefore not contrary to the objective pursued by Directive 2004/18 of <mask> and opening up to undistorted competition in all the Member States, since it does not place any private undertaking at an advantage over its competitors.


3 Recitals 3, 4, 8, 14, 16, 23 to 26 and 61 of Directive 2009/73 state: ‘(3) The freedoms which the Treaty guarantees the citizens of the Union – inter alia, the free movement of goods, the freedom of establishment and the <mask> – are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers. (4) However, at present, there are obstacles to the sale of gas on equal terms and without discrimination or disadvantages in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist. … (8) Only the removal of the incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner as the system operator and its independence from any supply and production interests, is clearly an effective and stable way to solve the inherent conflict of interests and to ensure security of supply. For that reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market [(OJ 2008 C 175 E, p. 206),] referred to ownership unbundling at transmission level as the most effective tool by which to promote investments in infrastructure in a non-discriminatory way, fair access to the network for new entrants and transparency in the market. … … (14) Where, on 3 September 2009, an undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be given a choice between ownership unbundling and setting up a system operator or transmission operator which is independent from supply and production interests. … (16) The full effectiveness of the independent system operator or independent transmission operator solutions should be ensured by way of specific additional rules. The rules on the independent transmission operator provide an appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new market entrants and the integration of gas markets. Effective unbundling through the independent transmission operator provisions should be based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. The independence of the transmission operator should also, inter alia, be ensured through certain “cooling-off” periods during which no management or other relevant activity giving access to the same information as could have been obtained in a managerial position is exercised in the vertically integrated undertaking. The independent transmission operator model of effective unbundling is in line with the requirements laid down by the European Council at its meeting on 8 and 9 March 2007. … (23) Further measures should be taken in order to ensure transparent and non-discriminatory tariffs for access to transport. Those tariffs should be applicable to all users on a non-discriminatory basis. Where a storage facility, linepack or ancillary service operates in a sufficiently competitive market, access could be allowed on the basis of transparent and non-discriminatory market-based mechanisms. (24) It is necessary to ensure the independence of storage system operators in order to improve third-party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. … (25) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. … To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to household and small non-household customers. (26) Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which should be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards on an ongoing basis. … (61) Under Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks [and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36)], the [European] Commission may adopt Guidelines to achieve the necessary degree of harmonisation. Such Guidelines, which constitute binding implementing measures, are, also with regard to certain provisions of this Directive, a useful tool which can be adapted quickly where necessary.’


While it is for the referring court alone to determine whether any inequality of treatment resulting from the application of the rule laid down in Paragraph 7(11) of the RStV can be objectively justified in the light of the criteria referred to in the previous paragraph, it should be noted that such an examination corresponds, in substance, to that relating to the justification of the restriction on the <mask>, carried out in paragraphs 52 to 79 of the present judgment, so that the two examinations must be carried out in the same way.