Therefore, pursuant to Article 18 of the Protocol on the <mask> of the European Union, the institutions and the Member States must cooperate for the purpose of applying the Protocol. In this respect, the provision gives concrete expression to the principle of sincere cooperation under Article 4(3) TEU.   For the EU institution concerned, the Court has derived from this provision a duty to disclose documents in so far as there is no risk of interference with the functioning or independence of that institution.   Correspondingly, the authorities of the Member State are in principle obliged to obtain such a disclosure decision if they wish to access archives of the Union, in this case documents connected with the performance of the tasks of the ESCB.


In the light of the foregoing, the answer to the third question is that Article 11(a) of the Protocol on <mask> must be interpreted as meaning that the immunity from legal proceedings for which it provides does not preclude the criminal prosecution in its entirety, including investigative measures, the gathering of evidence and service of the indictment. Nevertheless, if, at the stage of the investigations conducted by the national authorities and before the court is seised, it is established that the person under investigation may enjoy immunity from legal proceedings in respect of the acts which are the subject of the criminal prosecution, it is for those authorities to request a waiver of immunity from the EU institution concerned. That immunity does not preclude evidence gathered during the investigation from being used in other judicial proceedings.


It is true that the <mask> which Protocol No 7 grants to the European Union have a functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the European Union, which means, in particular, that the privileges, immunities and facilities accorded to officials and other servants of the European Union are accorded solely in the interests of the European Union (order of 13 July 1990, Zwartveld and Others, C‑2/88-IMM, EU:C:1990:315, paragraphs 19 and 20).


(Reference for a preliminary ruling – Member State national on remand in custody elected as a Member of the European Parliament during the trial stage of criminal proceedings – Refusal to authorise the person concerned to comply with a requirement under national law – Protocol No 7 on the <mask> of the European Union – Article 9 – Sphere to which parliamentary immunity belongs and its scope – Concepts of ‘elected’ and ‘Member of the European Parliament’ – Act concerning the election of the members of the European Parliament – Charter of Fundamental Rights of the European Union – Article 39 – Right to stand as a candidate)


(Infringement proceedings – Article 343 TFEU – <mask> of the Union – Statute of the European System of Central Banks (ESCB) and of the European Central Bank (ECB) – Article 39 – Privileges and immunities of the ECB – Protocol on the privileges and immunities of the European Union – Articles 2, 18 and 22 – Inviolability of the archives of the ECB – Cooperation between Union institutions and Member States’ law enforcement authorities – Acting by common agreement in application of the Protocol – Search and seizure of documents at the premises of Banka Slovenije – Documents connected to the performance of the ESCB’s tasks – Article 4(3) TEU – Principle of sincere cooperation)


Thirdly, although officials and other servants of the European Union enjoy, under Article 11(a) of the Protocol on <mask>, immunity from legal proceedings in respect of acts performed by them, including their words and written language, in their official capacity, it must be observed that the governors of the national central banks are in a different position from those officials and other servants. First, as national authorities, they are appointed by and, as the case may be, dismissed by the Member States (judgment of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 72). Secondly, they are not subject to an EU institution since, under Article 130 TFEU and Article 7 of the Protocol on the Statute of the ESCB and of the ECB, they may neither request nor take instructions from the institutions, bodies, offices or agencies of the European Union, or from the Member States or any other body.


Such an understanding of the necessary connection does not unduly restrict the Member States’ legitimate interest in pursuing criminal prosecution. This is because the existence of an act performed in an official capacity and the associated immunity under Article 11(a) of the Protocol on the <mask> of the EU – possibly after having been established by the Court – does not mean that the person concerned may not ultimately be prosecuted and sentenced. Rather, the authorities or courts of the Member States may request the institution concerned to waive immunity in accordance with the second paragraph of Article 17 of the Protocol. In accordance with the case-law of the Court, the EU institutions are in turn obliged, in accordance with the principle of sincere cooperation enshrined in Article 18 of the Protocol, to grant the request if there is no EU interest in the immunity in the specific case.   If they wrongly refuse to waive it after such a request, the Court can still allow the criminal prosecution to proceed.


In response to questions put to it at the hearing before the Court, concerning the potential impact of the judgment of 14 October 2019 on the request for a preliminary ruling and on the actions that the Tribunal Supremo (Supreme Court) could take in the light of the Court’s answers to its questions, the Public Prosecutor’s Office replied that it would be for the referring court to give due effect to the judgment delivered in the present case and, in the event that it followed from that judgment that Mr Junqueras Vies enjoyed an immunity on the basis of Article 9 of the Protocol on the <mask> of the European Union, to determine the effects of that immunity in the context of the action brought by Mr Junqueras Vies against the order referred to in paragraph 25 above.


The immunity conferred on the Members of the Governing Council by Protocol (No 7) on the <mask> of the European Union must be distinguished from the protection against being relieved from office enjoyed by the governors of the national central banks under the Statute of the ESCB and of the ECB. Thus, when a governor is relieved from office, his independence is guaranteed by Article 14.2 of that Statute, which takes precedence as a lex specialis over the general provisions of Protocol (No 7) on the privileges and immunities of the European Union. If the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB are fulfilled — which it is for the Court to verify, where necessary — a governor may therefore be relieved from office without there also being any need to adopt a decision waiving his immunity. Consequently, an infringement of the provisions of Protocol (No 7) on the privileges and immunities of the European Union cannot, as such, be relied on as against the decision to relieve a governor from office in the context of an action based on Article 14.2 of the Statute of the ESCB and of the ECB.


Given that neither the Protocol on the <mask> of the European Union nor the Rules of Procedure of the Parliament precisely define the cases in which the immunity of a Member of that institution must be waived, the Parliament enjoys a priori broad discretion when deciding on a request for waiver of the immunity of one of those Members.


In its later judgment of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 51), also cited by the applicant, the Court of Justice referred to its judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367), in finding that the special status of the person concerned, as a member of the staff of a permanent representation, resulted in her having a specific tie linking her to the Member State concerned and in finding also that that privileged status, which allowed her to enjoy various <mask>, in itself created an obstacle which prevented the person concerned from forming a lasting tie linking her to the State to which she was posted and, consequently, from integrating to the requisite degree in the society of that country. However, in paragraph 50 of the judgment of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724), the Court of Justice stated, again with reference to the judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367), that functional integration within the permanent representation constituted a decisive factor in order for the official concerned to be considered to have worked for another State (see also, to that effect, judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 45).


The starting position in the context of the VCDR is different in this respect. The traditional approaches to justifying diplomatic immunity – the theories of personal representation, of extraterritoriality and of functional necessity – cannot, according to the prevailing opinion, justify a comprehensive personal immunity as provided for in Article 31(1) of the VCDR; see, inter alia, Ross, M., ‘Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities’, American University International Law Review, 4(1) (1989), p. 173 (pp. 179 and 180); Maginnis, V., ‘Limiting Diplomatic Immunity: Lessons Learned from the 1946 Convention on the <mask> of the United Nations’, Brook. J. Int’l L., 28, 2003, p. 989 (p. 992). For that reason, it can be assumed that the comprehensive diplomatic immunity is intended to take account of the fear of political persecution of diplomats or the use thereof as a means of exerting pressure; see Maginnis, loc. cit. (p. 996).


The referring court notes that OH’s action is directed against a former European Commissioner who, although a Greek national, enjoys a privilege of jurisdictional immunity under Article 343 TFEU and Articles 11, 17 and 19 of the Protocol on <mask>. In that context, that court entertains doubts as to the interpretation to be given to the relevant EU rules and its jurisdiction to hear such a dispute.


As a preliminary point, it should be recalled that it is apparent, first, from Article 11(a) of the Protocol on <mask> that officials and other servants of the European Union enjoy immunity from legal proceedings only in respect of acts performed by them in their official capacity and, secondly, from the first paragraph of Article 17 of that protocol that that immunity is granted only if it is warranted by an interest of the European Union.


More specifically, the Commission submits, first, that, in the judgment of 16 December 1960, Humblet v Belgian State (6/60-IMM, EU:C:1960:48), the Court did not rule on the question of whether or not a decision to waive immunity was in the nature of an act adversely affecting a person, in so far as it based its reasoning on Article 16 of the Protocol on the <mask> of the ECSC. However, that provision has no equivalent in Protocol No 7.


pursuant to Article 258 TFEU, to declare that, by unilaterally seizing from the premises of the Bank of Slovenia documents connected to the performance of the ESCB’s and the Eurosystem’s tasks and by unfairly cooperating with the ECB on that subject, Slovenia has failed to fulfil its obligations under Article 343 TFEU, Article 39 of the Statute of the ESCB and of the ECB, Articles 2, 18 and 22 of the Protocol on the <mask> of the European Union and Article 4(3) TEU;


It follows from the foregoing that although the immunity from legal proceedings in respect of official acts of servants of the European Union within the meaning of Article 11(a) of the Protocol on the <mask> of the EU does cover coercive measures taken by public authorities in criminal proceedings, it does not preclude the opening and conduct of preliminary investigations in general.


It follows that, in the absence of any reference to national law in Article 11(a) of the Protocol on <mask>, the concept of ‘immunity from legal proceedings’ in that provision must be regarded as an autonomous concept of EU law, the meaning and scope of which must be identical in all the Member States. It is therefore for the Court to give a uniform interpretation of that concept in the EU legal order.


By its fourth question, which it is appropriate to examine before the third question, the referring court asks, in essence, whether Article 11(a) of the Protocol on <mask>, read in conjunction with Article 17 of that protocol, must be interpreted as allowing the national authority responsible for the criminal proceedings, that is to say, depending on the stage of the proceedings, the authority responsible for criminal prosecution or the competent criminal court, itself to find that the conditions for immunity from legal proceedings are satisfied before requesting the EU institution concerned to waive that immunity.


The reason why the scope of immunity of EU staff is limited resides in the fact that, according to Article 343 TFEU, the European Union enjoys only ‘such <mask> as are necessary for the performance of its tasks’. It follows from the case-law of the Court that the privileges and immunities accorded to the EU are intended to avoid any interference with the functioning and independence of the EU.   The limited nature of the European Union’s immunities is confirmed by the first paragraph of Article 17 of the Protocol, according to which immunities are to be accorded to officials and other servants of the EU solely in the interests of the EU   – and not in the staff’s own interests. The immunities are therefore functional not only in terms of their subject matter, but also in terms of their rationale and purpose.


Nevertheless, if, at the stage of the investigations conducted by the national authorities and before the matter is brought before a court, it is established that the official or servant of the European Union may enjoy immunity from legal proceedings in respect of the acts which are the subject of the criminal prosecution, it is for those authorities, in accordance with Article 4(3) TEU and Article 18 of the Protocol on <mask>, to request a waiver of immunity from the EU institution concerned, which is then required to act, in particular, in accordance with the approach set out in paragraphs 58, 62 and 74 above.


The guarantees under Article 14.2 of the Statute of the ESCB and of the ECB in conjunction with the duty of sincere cooperation under Article 18 of the Protocol on the <mask> of the EU and Article 4(3) TEU – compliance with which may be enforced by infringement proceedings where necessary   – therefore ultimately ensure sufficient protection against interferences with the independence of the ECB, the national central banks and members thereof by criminal-prosecution measures in purely national and non-official matters, and this makes it unnecessary to extend the immunity of the persons concerned beyond the clear wording of Article 11(a) of the Protocol on the privileges and immunities of the EU.


Next, the Commission objects to the General Court’s reference to the decisions in Mote v Parliament   and Gollnisch v Parliament.   The General Court cited the latter to support the proposition that the <mask> under Protocol No 7 confers an individual right on the person concerned. It relied on the former in support of the reasoning (based on Humblet v Belgian State  ) that privileges and immunities are granted directly to officials.


(Reference for a preliminary ruling – Articles 268, 270, 340 and 343 TFEU – Protocol (No 7) on the <mask> of the European Union – Articles 11, 17 and 19 – Former member of the Commission – Immunity of jurisdiction – Action for non-contractual liability – Waiver – Jurisdiction of the Court of Justice of the European Union)


However, the immunity conferred on the governors by Protocol (No 7) on the <mask> of the European Union protects them against proceedings initiated independently of a decision to relieve them from office, before it has been adopted   or again if such a decision is withdrawn after being challenged before the Court. Accordingly, such immunity may be relevant in the context of an action relating to the decision to relieve a governor from office if the evidence submitted by the Member State concerned in support of that decision had been obtained in breach of that immunity.


By its second plea, the Commission accuses Slovenia of breaching its duty of sincere cooperation under Article 18 of the Protocol on the <mask> of the European Union and Article 4(3) TEU, as the Slovenian law enforcement authorities did not engage in ‘constructive dialogue’ with the ECB. In essence, the Commission accuses the Slovenian authorities of not sufficiently coordinating with the ECB, either before or after the search and seizure of the documents, in order to minimise the interference with their functioning and independence.


Having regard to all the foregoing considerations, it must be declared that, by unilaterally seizing at the premises of the Central Bank of Slovenia documents connected to the performance of the tasks of the ESCB and of the Eurosystem and, as regards the period after that seizure, by failing to cooperate sincerely with the ECB on that matter, the Republic of Slovenia has failed to fulfil its obligations under Article 343 TFEU, Article 39 of the Protocol on the ESCB and the ECB, Articles 2, 18 and 22 of the Protocol on <mask> and Article 4(3) TEU.


Nor do I see any logic for supporting such a distinction. As explained in point 67 above, <mask> are granted to EU staff in the interest of the Union, in order to enable that staff to perform their duties effectively, without having to fear (civil, criminal, administrative or other) legal proceedings for the acts they accomplish in that context. There may thus naturally be situations in which the Union decides that the initiation and carrying out of such legal proceedings – be it of a civil, criminal or other nature – is not contrary to its interest.


Article 22 of Protocol (No 7) on the <mask> of the European Union, read in the light of Article 130 TFEU and Article 7 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank, must be interpreted as meaning that the governor of a central bank of a Member State enjoys the immunity from legal proceedings provided for in Article 11(a) of Protocol (No 7) on the privileges and immunities of the European Union for acts performed by him or her in his or her official capacity as a member of an organ of the European Central Bank.


As the Advocate General pointed out in point 70 of his Opinion, those provisions must therefore be understood as meaning that the acquisition of the status of Member of the European Parliament, for the purposes of Article 9 of the Protocol on the <mask> of the European Union, occurs because of and at the time of the official declaration of the election results carried out by the Member States.


In order to determine whether a particular act has been performed in an official capacity within the meaning of Article 11(a) of the Protocol on the <mask> of the EU, the decisive factor is whether there is a connection between the act and the duties and tasks of the EU servant.   In this respect, the referring court asks, in particular, whether it may itself assess whether such a connection exists.


It is true that Latvian law does not provide for immunity of the central bank of Latvia or its bodies. However, pursuant to Article 11(a) of the Protocol on the <mask> of the EU, in the territory of each Member State, officials and other servants of the EU are immune from legal proceedings in respect of ‘acts performed by them in their official capacity’. Pursuant to the first paragraph of Article 22, the Protocol also applies to the ECB, to the members of its organs, and to its staff. According to the first sentence of Article 282(1) TFEU, the national central banks form an integral part of the ESCB, and their governors – in so far as the Member State concerned is part of the Eurosystem   – are members of the Governing Council, which is the highest decision-making body of the ECB.


Consequently, the answer to the second question is that Article 11(a) of the Protocol on <mask>, read in conjunction with Article 22 of that protocol, must be interpreted as meaning that the governor of a central bank of a Member State continues, in respect of acts performed in his or her official capacity, to enjoy the immunity from legal proceedings provided for in Article 11(a) of that protocol after he or she has ceased to hold office.


(4) If the answer to the first question is in the affirmative, does Article 11(a) of [the Protocol on the <mask> of the EU], read in conjunction with Article 17 of that protocol, allow the person directing the proceedings or, at the corresponding stage of the proceedings, the composition of the court, to assess whether there is a European Union interest in those proceedings and, only where it is found that there is – that is to say, if [the accused person’s] alleged conduct relates to the performance of his duties at an EU institution – to request the institution concerned, that is to say, the European Central Bank, to waive that person’s immunity?


On 9 December 2016, the Commission sent a letter to the Republic of Slovenia under the ‘EU Pilot’ procedure, informing that State of its doubts as to the correct application of Articles 2 and 22 of the Protocol on <mask> in respect of the seizure of documents carried out at the premises of the Central Bank of Slovenia on 6 July 2016. The Republic of Slovenia replied to that letter by a letter of 23 January 2017.


Next, as regards <mask>, under Article 45 TFEU, to which the German Government refers, I think that, although the provisions of Article 19(3) and (8) of the Directives might indeed constitute a barrier to the exercise of that freedom, as the German Government maintains, they are nevertheless responsive to objectives of general interest pursued by the European Union and are justified and proportionate.


Judgment of 20 February 1997 (C‑344/95, EU:C:1997:81, paragraphs 12 to 19). On jobseekers’ allowances, see judgment of 23 March 2004, Collins (C‑138/02, EU:C:2004:172, paragraph 37), in which the Court interpreted the provisions of the Treaty on <mask> for the first time in the light of the Treaty provisions on EU citizenship. In the context of the EEC-Turkey Association Agreement, see judgment of 23 January 1997, Tetik (C‑171/95, EU:C:1997:31, paragraphs 32 to 34).


However, on the other hand, it should be noted that a significant number of the obstacles to the applicant’s freedom of movement described in point 62 above can be removed by recognising the family relationships established in Spain for the sole purpose of applying secondary EU law on the free movement of citizens. Thus, the recognition of her daughter as her ‘direct descendant’ within the meaning of Article 2(2)(c) of Directive 2004/38 and the recognition of her wife as her ‘spouse’ within the meaning of point (a) of that provision would have the effect of enabling them to reside in the territory of the Bulgarian State together with the applicant in the main proceedings.   Likewise, since the definition of those concepts under Directive 2004/38 must also be adopted with regard to the concept of the ‘family members’ of a migrant worker for the purposes of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1),   this would also ensure that the child may claim, for example, in accordance with the settled case-law of the Court concerning Article 7(2) of that regulation,   the social and tax advantages associated with the applicant in the main proceedings’ possible status of migrant worker in the same way as a biological child.


This request for a preliminary ruling concerns the interpretation of Article 4(2) and (3) TEU, Article 4(4) and Articles 45, 208 and 288 TFEU, Article 7, Article 11(3)(a) and (e) and Articles 67 and 68 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), Article 11 and Article 60(2) and (3) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (OJ 2009 L 284, p. 1), and Article 7(1) and (2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1).


Finally, in the seventh place, so far as concerns the obligation, for workers doing logistical work, as defined in Article 1(3) of the Royal Decree of 2004 (‘logistics workers’), to hold a ‘security certificate’, the Raad van State (Council of State) is of the view that such a measure is intended to ensure safety in general and, as a result, also that of the workers concerned. The question nevertheless arises as to whether such a measure, interpreted as meaning that that security certificate must be requested each time a new employment contract is concluded, does not represent a significant and disproportionate administrative burden, in the light of the freedom of establishment and the <mask>.


Article 45(2) TFEU states that <mask> entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. That provision is given specific expression in Article 7(2) of Regulation No 492/2011, which states that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social and tax advantages as national workers (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 32).


(Reference for a preliminary ruling — Social security — Coordination of social security systems — Regulation (EC) No 883/2004 — Article 3 — Matters covered — Old-age benefit — <mask> within the European Union — Regulation (EU) No 492/2011 — Article 7 — Equal treatment of national workers and migrant workers — Social advantages — Legislation of a Member State restricting the grant of an ‘additional benefit for sportspersons who have represented the State’ to the citizens of that State)


The Court has held that, although Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on <mask> within the Community (OJ, English Special Edition 1968 (II), p. 475) and Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’), which were repealed and replaced by Regulation No 492/2011 and by Regulation No 883/2004 respectively, do not have the same scope of application ratione personae, the fact nonetheless remains that, since Regulation No 1612/68 is of general application as regards the free movement of workers, Article 7(2) thereof may apply to social advantages which, at the same time, come specifically within the scope of Regulation No 1408/71 (judgment of 5 May 2011, Commission v Germany, C‑206/10, EU:C:2011:283, paragraph 39; see also, to that effect, judgment of 12 May 1998, Martínez Sala, C‑85/96, EU:C:1998:217, paragraph 27).


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


143. Secondly, I share the views expressed by the Commission (130) and by the EFTA Surveillance Authority and the Republic of Slovenia, according to which it is of fundamental importance to recall that the rules protecting the <mask> within the European Union and the EEA, (131) including equality of treatment, are based on an overall system in which, first, the applicable social security legislation is, in general, that of the Member State in which the person concerned pursues his or her activity as an employed or self-employed person (132) and, secondly, migrant workers contribute to the financing of the social policies of the host Member State through the taxes and social contributions which they pay by virtue of their employment there, (133) which justifies the equality of the benefits or advantages granted. (134)


Thus, the Court has held that depriving a worker of the right to aggregation of periods completed under the legislation of a number of Member States, without taking into account periods completed in international organisations, would constitute an obstacle to the <mask> within the meaning of Article 45 TFEU (see, to that effect, judgment of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 45).


151. In the light of the foregoing considerations, I propose that the Court should: (1) Declare that, by introducing an adjustment mechanism in relation to the family allowance and the child tax credit for workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under: – Articles 7 and 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, and – Article 4 of Regulation No 883/2004 and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union; (2) Declare that, by introducing an adjustment mechanism in relation to the Familienbonus Plus (Family Bonus Plus tax credit), the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments for migrant workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under Article 7(2) of Regulation No 492/2011; (3) Order the Republic of Austria to pay the costs; (4) Order the Czech Republic, the Kingdom of Denmark, the Republic of Croatia, the Republic of Poland, Romania, the Republic of Slovenia and the Slovak Republic, and the Kingdom of Norway and the EFTA Surveillance Authority to bear their own costs.


It should also be noted that <mask> forms one of the foundations of the European Union and, therefore, the provisions establishing that freedom must be interpreted broadly. In particular, a strict interpretation of Article 45(3) TFEU would jeopardise the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective (see, to that effect, judgment of 26 February 1991, Antonissen, C‑292/89, EU:C:1991:80, paragraphs 11 and 12).


22. The Commission submits that, since MCM is not a worker and has not left the Member State in which he lives, he does not fall within the scope of Article 45 TFEU or of Article 7(2) of Regulation No 492/2011. As far as MCM’s father is concerned, the Commission considers that, in the present case, there is no restriction on the <mask>. IV. Assessment


In that regard, it must be borne in mind that the standstill clause contained in Article 13 of Decision No 1/80 prohibits generally the introduction of any new national measure that has the object or effect of making the exercise by a Turkish national of the <mask> on national territory subject to conditions that are more restrictive than those which applied at the time when Decision No 1/80 entered into force in the Member State concerned (judgment of 10 July 2019, A, C‑89/18, EU:C:2019:580, paragraph 23 and the case-law cited).


Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union must be interpreted as precluding legislation of a Member State which makes receipt of an additional benefit introduced for certain high-level sportspersons who have represented that Member State or its legal predecessors in international sporting competitions conditional upon, in particular, the person applying for the benefit having the nationality of that Member State.


With regard to possible indirect discrimination based on the nationality of the workers concerned, according to the Member State in which they or their family members reside, it must be observed that neither the provisions of Regulation No 883/2004, specifically Articles 7 and 67 thereof, the purpose of which is to prevent a Member State from making entitlement to and the amount of family benefits dependent on residence of the members of the worker’s family in the Member State providing the benefits (see, to that effect, judgment of 5 October 1995, Imbernon Martínez, C‑321/93, EU:C:1995:306, paragraph 21), nor Article 45 TFEU provide that the right to <mask> applies outside the territory of the European Union. On the contrary, it is apparent from the clear wording of Article 45 TFEU that freedom of movement for workers ‘shall be secured within the Union’.


Article 45 TFEU and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union must be interpreted as meaning that a family allowance based on the fact that a frontier worker pursues an activity as an employed person in a Member State constitutes a social advantage within the meaning of those provisions.


However, the objective of those regulations – which is to promote the <mask>, and, in the case of the posting of workers, the freedom to provide services, 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.


Thus, the Court of Justice has already had occasion to exclude interpretations of provisions of EU law which would lead to an absurd result (see, to that effect, in the context of <mask>, judgment of 10 December 2009, Peśla, C‑345/08, EU:C:2009:771, paragraphs 46 and 48, and, in the context of designs, judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 96).


This request for a preliminary ruling concerns the interpretation of Articles 20 and 45 TFEU, Article 4 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1) and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1).


See paragraph 60 et seq. of that judgment. The judgment concerns a Union citizen who was economically inactive at the time when he applied for subsistence benefits for himself and his children in the host Member State, where he had previously worked. As he was no longer classified as a worker, but was seeking fresh employment in that Member State, he came within the scope of Article 14(4)(b) of Directive 2004/38. He also had a right to reside in the host Member State on the basis of Article 10 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1) on the ground that his children were attending school in that State and was thus entitled to equal treatment with nationals of that State in the matter of social assistance.


In the same vein, it must be accepted that the possibility of a migrant worker being compensated in the same way as workers who are nationals of the host Member State for exceptional sporting results which he or she has obtained while representing that Member State or its legal predecessors may contribute to the integration of that worker into that Member State and thus to achieving the objective of <mask>.


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 <mask> and freedom to provide services (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).


10 See the judgment in Giersch, paragraph 35. That judgment relates to Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on <mask> within the Community (OJ, English Special Edition, Series I 1968(II), p. 475). Given that Article 7(2) of that regulation is identical to Article 7(2) of Regulation No 492/2011, the Court’s case-law on the interpretation of the former provision applies mutatis mutandis to the interpretation of the latter.


(Failure of a Member State to fulfil obligations – Coordination of social security systems – Regulation (EC) No 883/2004 – Articles 4, 7 and 67 – <mask> – Regulation (EU) No 492/2011 – Article 7 – Equality of treatment – Family benefits – Social and tax advantages – Adjustment of the amount of benefits and advantages in line with the price level in the children’s State of residence)


With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act to amend Council Regulation (EEC) No 1612/68 of 15 October 1968 on <mask> within the Community (OJ, English Special Edition, 1968(II), p. 475) and to repeal the following acts: …


In that context, it should be borne in mind that national legislation tightening the conditions for family reunification of Turkish workers legally resident in the Member State in question, in relation to the conditions applicable at the time of the entry into force in that Member State of Decision No 1/80, constitutes a ‘new restriction’, within the meaning of Article 13 of that decision, on the exercise by such Turkish workers of the <mask> in that Member State (judgment of 7 August 2018, Yön, C‑123/17, EU:C:2018:632, paragraph 64 and the case-law cited).


Any other interpretation of Article 11(1) of Annex VIII to the Staff Regulations, which would deprive a person such as the appellant in the main proceedings of his right to transfer the actuarial equivalent of the retirement pension rights acquired in the EU pension scheme, would be incompatible with the provisions of the FEU Treaty concerning the principle of <mask>.


First, I would recall that Article 45 TFEU provides that <mask> is to be secured within the Union and includes a right, subject to limitations justified on grounds of public policy, public security or public health, to accept offers of employment actually made and to move freely within the territory of Member States for that purpose. It therefore follows from that article that a national of a Member State who is seeking employment is entitled to move freely within the territory of other Member States.


According to settled case-law, Article 21(1) TFEU, which sets out in general terms the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 45 TFEU concerning <mask>, in Article 49 TFEU concerning freedom of establishment and in Article 56 TFEU concerning the freedom to provide services. Therefore, if the national legislation at issue falls within the scope of Article 45 TFEU, of Article 49 TFEU or of Article 56 TFEU, it will not be necessary for the Court to rule on the interpretation of Article 21 TFEU (see to that effect, inter alia, judgments of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 34, and of 11 September 2007, Commission v Germany, C‑318/05, EU:C:2007:495, paragraph 35 and the case-law cited).


In the second place, it should be specified that such legislation also falls within the scope of Article 45 TFEU. After all, that provision may be relied on not only by the workers themselves, but also by their employers. In order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing <mask> (judgment of 16 April 2013, Las, C‑202/11, EU:C:2013:239, paragraph 18). The provisions laid down in the FEU Treaty relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place those nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. Those provisions and, in particular, Article 45 TFEU thus preclude any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedoms guaranteed by the Treaty (judgment of 16 April 2013, Las, EU:C:2013:239, paragraphs 19 and 20 and the case-law cited).


(Reference for a preliminary ruling – Article 45 TFEU – <mask> – Article 49 TFEU – Freedom of establishment – Article 56 TFEU – Freedom to provide services – Carrying out of port activities – Dockers – Access to the profession and recruitment – Arrangements for the recognition of dockers – Dockers not part of the quota of workers provided for in national legislation – Limitation of the duration of the work contract – Mobility of dockers between different port areas – Workers carrying out logistical work – Safety certificate – Overriding reasons in the public interest – Safety in port areas – Protection of workers – Proportionality)


18. The Danish Government considers that the rules on the <mask> do not apply ratione materiae. It submits that the Swedish legislation on financial assistance should be understood as meaning that a student who does not reside in Sweden can benefit from such financial assistance if he or she can show that he or she has either the status of child of a migrant worker or a connection with Swedish society.


The <mask>, freedom of establishment and freedom to provide services are fundamental principles of the internal market enshrined in the Treaty on the Functioning of the European Union (TFEU). The implementation and enforcement of those principles are further developed by the Union and aim to guarantee a level playing field for businesses and respect for the rights of workers.


In accordance with settled case-law, any national of the European Union who, irrespective of his or her place of residence and nationality, has exercised the right to <mask> and who has been employed in a Member State other than that of his or her residence comes within the scope of Article 45 TFEU (judgment of 14 March 2019, Jacob and Lennertz, C‑174/18, EU:C:2019:205, paragraph 21 and the case-law cited).


As the Court has already held, such advantages include, inter alia, an unemployment benefit aimed at young people who have just completed their studies and are seeking their first employment (see, to that effect, judgment of 15 September 2005, Ioannidis, C‑258/04, EU:C:2005:559, paragraph 34), a child-raising allowance for a worker’s child (see, to that effect, judgment of 12 May 1998, Martínez Sala, C‑85/96, EU:C:1998:217, paragraph 26), the possibility, for the widow and infant children of a migrant worker, of benefiting from the reductions in rail fares applicable to large families (see, to that effect, judgment of 30 September 1975, Cristini, 32/75, EU:C:1975:120, paragraph 13), the possibility, for an accused person who has worker status, of using one of the languages available to the residents of a municipality of the host Member State (see, to that effect, judgment of 11 July 1985, Mutsch,137/84, EU:C:1985:335, paragraphs 16 and 17), or the possibility of obtaining permission for a worker’s unmarried partner, who is not a national of the host Member State, to reside in that State with that worker (see, to that effect, judgment of 17 April 1986, Reed, 59/85, EU:C:1986:157, paragraph 28), because all those measures may contribute to the integration of the migrant worker into the host country and thus to achieving the objective of <mask>.


The Court referred to indirect discrimination (by reason of nationality) for the first time in its judgment of 12 February 1974, Sotgiu (152/73, EU:C:1974:13, paragraph 11), in respect of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on <mask> within the Community (OJ 1968 L 257, p. 2): ‘The rules regarding equality of treatment … forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.’ Emphasis added. For recent case-law on freedom of movement for workers in which the Court uses that concept, see, for example, judgment of 2 April 2020, PF and Others (C‑830/18, EU:C:2020:275, paragraph 30 and the case-law cited).


As regards, last, the first paragraph of Article 18 TFEU, in accordance with settled case-law that provision is intended to apply independently only to situations governed by EU law in respect to which the FEU Treaty does not lay down specific rules on non-discrimination (judgment of 11 June 2020, TÜV Rheinland LGA Products and Allianz IARD, C‑581/18, EU:C:2020:453, paragraph 31 and the case-law cited). However, the principle of non-discrimination has been given effect, in the area of <mask>, by Article 45 TFEU (judgment of 10 October 2019, Krah, C‑703/17, EU:C:2019:850, paragraph 19 and the case-law cited), which provision, as stated in paragraph 44 of the present judgment, finds particular expression, in the specific area of the grant of social advantages, in Article 7(2) of Regulation No 492/2011. Consequently, no interpretation of Article 18 TFEU is needed.


Those differences in treatment depending on the national or ‘foreign’ origin of the financial support in question, and therefore on the place where the residence or registered office of the natural or legal persons granting the support is established, constitute indirect discrimination on the basis of nationality (see, by analogy, in the field of <mask>, judgments of 24 September 1998, Commission v France, C‑35/97, EU:C:1998:431, paragraphs 38 and 39, and of 5 May 2011, Commission v Germany, C‑206/10, EU:C:2011:283, paragraphs 37 and 38).


Article 7(2) and Article 10 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union must be interpreted as precluding legislation of a Member State which provides that a national of another Member State and his or her minor children, all of whom have, in the former Member State, a right of residence based on Article 10 of that regulation, by virtue of those children attending school in that State, are automatically and in all circumstances excluded from entitlement to benefits to cover their subsistence costs. That interpretation is not called into question by Article 24(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.


In that regard, if the Luxembourg pension received by Mr Jacob results from a salaried activity, it is, indeed, Article 45 TFEU concerning the <mask> which is relevant. If, on the other hand, Mr Jacob carried out non-salaried activity in Luxembourg, it would be the freedom of establishment provided for in Article 49 TFEU which would apply. It is for the referring court to confirm which provision of the FEU Treaty is applicable.


The Court has held that the aim of Regulation No 1612/68, namely <mask>, required, ‘for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State’   and has stated that the link between successful integration and the possibility for a child of a migrant worker to go to school and pursue further education in the host Member State   is an essential one.


Assuming that national legislation such as that referred to in paragraph 80 of the present judgment were liable to restrict also the free movement of goods, in so far as dockers also carry out work relating to the transport of goods transiting through ports, it is clear that such a restriction would be entirely secondary in relation to restrictions on the <mask> and services, as well as on the freedom of establishment.


It follows that, in so far as legislation such as that at issue in the main proceedings does not take into account in full previous periods of equivalent activity completed in a Member State other than the Member State of origin of a migrant worker, it is likely to render less attractive the <mask>, in breach of Article 45(1) TFEU, and, accordingly, constitutes an obstacle to that freedom.


‘Moreover, it should be borne in mind that Regulation No 1408/71 was adopted on the basis of Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and, subsequently, after amendment, Article 42 EC, now Article 48 TFEU), which empowered the Council of the European Union to adopt such measures in the field of social security as were necessary to provide <mask>, making arrangements to that end to secure the aggregation for migrant workers and their dependants, for the purposes of acquiring and retaining the right to benefits and of calculating the amount of benefits, of “all periods” taken into account under the laws of the several countries.’


In order to answer that question, it should be recalled, with regard to Article 45 TFEU, first, that any Union national who, irrespective of his place of residence and his nationality, has exercised the right to <mask> and who has been employed in a Member State other than that of residence falls within the scope of that provision (see, to that effect, judgment of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 76 and the case-law cited).


127. With regard to the relationship between those two regulations, the scopes of which overlap, (105) the Court has noted that Regulation No 492/2011 is of general application as regards the free movement of workers. (106) It thus reiterated the solution adopted when examining an action for failure to fulfil obligations, which the Commission based on both infringement of Regulation No 1408/71, on account of the setting of a residence criterion for sickness benefits to be exportable, and the ability to justify the choice of that criterion, in the light of Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on <mask> within the Community. (107) Therefore, the application of Article 4 of Regulation No 883/2004 may be reserved to situations which are not covered by Regulation No 492/2011, even though Regulation No 883/2004 contains specific provisions prohibiting residence rules, in particular in Article 7. (108)


Second, the possibility, mentioned by the referring court, that the withdrawal of the family allowances for development aid workers may hinder the <mask> and, as the case may be, make it less attractive, or even entail a decline in demand for the profession of ‘development aid worker’, even though that would be have to be verified on the facts, cannot, in any case, give rise to a situation that is incompatible with Articles 45 and 48 TFEU. As is clear from paragraphs 71 and 72 of this judgment, those provisions do not harmonise the social security schemes of the Member States, since Member States retain the power to organise their social security systems in accordance with EU law and the FEU Treaty offers no guarantee to a worker that extending his activities into more than one Member State or transferring them to another Member State will be neutral as regards social security. Given the disparities in the social security legislation of the Member States, such an extension or transfer may be more or less advantageous or disadvantageous for the worker in terms of social welfare. It follows that, even where its application is thus less favourable, such legislation is still compatible with Articles 45 and 48 TFEU if it does not place the worker concerned at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it there, and if it does not simply result in the payment of social security contributions on which there is no return (judgment of 14 March 2019, Vester, C‑134/18, EU:C:2019:212, paragraph 32 and the case-law cited).


Consequently, the fact that the applicants in the main proceedings were unable, when they moved to another Member State, to receive family allowances from their Member State of origin and that the family allowances received in the event of their return to that Member State are not, for two years, in line with their income received during that period cannot constitute less favourable treatment contrary to <mask> and, more particularly, Article 45 TFEU.


Furthermore, as the Advocate General noted in point 56 of his Opinion, maximising the relevant factors for the calculation of the theoretical amount is consistent with the settled case-law according to which Article 46(2) of Regulation No 1408/71, which was succeeded by Article 52(1) of Regulation No 883/2004, must be interpreted in the light of the objective laid down in Article 48 TFEU. That objective is to contribute, in particular by the aggregation of periods of insurance, residence or employment, to the establishment of <mask>, entailing that migrant workers must neither lose rights to social security benefits nor suffer a reduction in the amount thereof as a result of the fact that they have exercised their right to freedom of movement (see, to that effect, judgments of 9 August 1994, Reichling, C‑406/93, EU:C:1994:320, paragraphs 21 and 24; of 17 December 1998, Lustig, C‑244/97, EU:C:1998:619, paragraphs 30 and 31; and of 21 February 2013, Salgado González, C‑282/11, EU:C:2013:86, paragraph 43).


133. To my knowledge, the Court did not expressly refer to that condition when applying Article 4 of Regulation No 883/2004. However, the Court’s only decision on Article 3(1) of Regulation No 1408/71 which set out in similar terms the principle of equal treatment is, in my view, transposable. (116) Moreover, I note that the Court has interpreted Article 67 of Regulation No 883/2004, which is intended to ensure that a worker is not deterred from exercising his or her right to freedom of movement, (117) in conjunction with Article 7(2) of Regulation No 492/2011, and has assessed the justifications put forward by the referring court on that basis alone. I infer from this that the choice by a Member State to use a residence criterion which applies to family benefits may also be justified on account of the rule of the coordinated interpretation of Article 4 of Regulation No 883/2004 and Article 7(2) of Regulation No 492/2011, resulting from their common basis, namely Article 45 TFEU, laying down the objective of guaranteeing <mask>. (118) (b) Justification for indirect discrimination


In that regard, it should be noted that national legislation which makes the possibility for a recognised docker to work in a port area different from that in which he or she obtained his or her recognition subject to conditions – whether they be fixed by legislation or by a CLA – constitutes a restriction both on the <mask> and on the freedom of establishment and freedom to provide services.


With regard, in the fifth place, to the automatic recognition of all dockers employed as dockers ‘included in the pool’, the Raad van State (Council of State) notes that, according to Katoen Natie Bulk Terminals and General Services Antwerp, that measure deprives employers of the right to engage a quality workforce by concluding directly with the dockers a permanent contract guaranteeing them job security in accordance with the rules of general labour law, since those workers remain ‘automatically’ included in the pool. The question arises as to whether such a measure must be regarded as adequate and proportionate in the light of the objective pursued, and therefore in accordance with the freedom of establishment and the <mask>.


By application lodged at the Court Registry on 22 July 2020, the European Commission asks the Court to declare that, by adjusting the amount of family benefits, as well as social and tax advantages, for the children of persons entitled to such benefits in Austria to reflect the cost of living in the Member State in which the child resides, the Republic of Austria has failed to fulfil its obligations under, first, Articles 4, 7 and 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), and, second, Article 7 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1).


However, the principle of the <mask> enshrined in Article 45 TFEU does not require professional experience which, without being equivalent, is merely beneficial for the performance of teaching duties to be taken into account in full, in so far as it is not necessary to ensure that both the workers employed by the Land of Lower Saxony who have never performed their right of free movement and those who have are subject to the same conditions for the purposes of their salary grading. The consideration that a worker, whose full equivalent professional experience which might be completed in a Member State other than the Member State of origin will be taken into account for the purposes of the initial salary grading as a teacher in a school of the Land of Lower Saxony, will be dissuaded from leaving his or her Member State of origin if professional experience of any other type which might be acquired in that other Member State will not be taken into account in full, seems to rely on a set of events too uncertain and indirect to be capable of being regarded as hindering the freedom of movement for workers (see, to that effect, judgment of 10 October 2019, Krah, C‑703/17, EU:C:2019:850, paragraph 50).


1. By its application, the European Commission requests that the Court declare that, by putting in place: (1) an adjustment mechanism in relation to the family allowance and the child tax credit for workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under: – Articles 4, 7 and 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (2) and – Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union, (3) and, (2) an adjustment mechanism in relation to the Familienbonus Plus (Family Bonus Plus tax credit, ‘the Family Bonus Plus’), the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments, for migrant workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under Article 7(2) of Regulation No 492/2011.


Second, such an interpretation, which has the effect of not extending the scope of Article 24(2) of Directive 2004/38, satisfies the requirement that that provision be interpreted strictly and in accordance with the provisions of the FEU Treaty, including those relating to citizenship of the Union and <mask>, as referred to in the judgment in Jobcenter Krefeld.


77. I propose that the Court of Justice answer the question referred for a preliminary ruling by the Överklagandenämnden för studiestöd (National Board of Appeal for Student Aid, Sweden) as follows: Neither Article 45 TFEU nor Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union precludes a Member State (the country of origin) from laying down a requirement that the child of a (former) migrant worker, after the latter returned to his or her country of origin, have a connection with the country of origin in order to grant that child student financial aid to study abroad in the other EU Member State where the child’s parent previously worked (the host country), in a situation: (i) where that child has never resided in the country of origin, but lives from his or her birth in the host country; and (ii) where the country of origin subjects its other nationals, who do not fulfil the condition of residence and who apply for student financial aid to study in another EU Member State, to the same requirement that there be a connection to the country of origin.


Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union must be interpreted as meaning that national legislation which makes the payment of school transport costs by a Land subject to a requirement of residence in the territory of that Land constitutes indirect discrimination, in that it is intrinsically liable to affect frontier workers more than national workers.


Without prejudice to the considerations I shall set out below regarding the fight against abuse and fraud in this sector, it must be recalled that ‘the purpose of [Article 12(1) of Regulation No 883/2004] is, in particular, to promote freedom to provide services for the benefit of undertakings which avail themselves of it by sending workers to Member States other than that in which they are established. It is aimed at overcoming obstacles likely to impede <mask> and also at encouraging economic interpenetration whilst avoiding administrative complications, in particular for workers and undertakings’. The activity of a TEA also fits into that context.


In the present case, the dispute in the main proceedings concerns a German national who works in Germany but resides in France. The connection with EU law is therefore the residence of that worker in a Member State other than that of which he is a national. Since that worker has exercised his freedom of movement, he is therefore entitled to rely — as against the Member State of which he is a national — on Regulation No 492/2011, which is intended to implement <mask> within the European Union, and in particular on Article 7(2) of that regulation.


Furthermore, as is apparent from the case-law of the Court, national legislation tightening the conditions for the family reunification of Turkish workers lawfully residing in the Member State in question, in relation to the conditions applicable at the time of the entry into force in that Member State of Decision No 1/80, constitutes a ‘new restriction’, within the meaning of Article 13 of that decision, on the exercise by such Turkish workers of the <mask> in that Member State (judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 31).


Similarly, the Court has held that a worker who was carrying on an activity as an employed person in his or her host Member State at the time of the accession of his or her Member State of origin to the European Union and has continued to carry on such activity after that accession may, from the date of accession, rely on Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on <mask> within the Community (OJ 1968 L 257, p. 2), the wording of which has been reproduced in Article 7(2) of Regulation No 492/2011, unless the transitional arrangements provided for in the Act of Accession provide otherwise (see, to that effect, judgment of 27 September 1989, Lopes da Veiga, 9/88, EU:C:1989:346, paragraphs 9, 10 and 19).


According to settled case-law, freedom of establishment for nationals of one Member State on the territory of another Member State includes the right to take up and pursue activities as self-employed persons (see, inter alia, judgments of 28 January 1986, Commission v France, 270/83, EU:C:1986:37, paragraph 13; of 29 April 1999, Royal Bank of Scotland, C‑311/97, EU:C:1999:216, paragraph 22; and of 1 October 2009, Gaz de France — Berliner Investissement, C‑247/08, EU:C:2009:600, paragraph 54). By contrast, any national of the European Union who, irrespective of his place of residence and his nationality, has exercised the right to <mask> and who has been employed in a Member State other than that of his residence comes within the scope of Article 45 TFEU (see, inter alia, judgments of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 76, and of 28 February 2013, Petersen, C‑544/11, EU:C:2013:124, paragraph 34).


Furthermore, although the interpretation of the rules on transitional periods in paragraph 56 above may, as the Federal Republic of Germany claims, give rise to a restriction on the <mask> enshrined in Article 45 TFEU and to a restriction on the exercise of the fundamental right to pursue a freely chosen occupation under Article 15(1) of the Charter, it should be noted that those freedoms are not absolute and may be restricted under certain conditions.


This request for a preliminary ruling concerns the interpretation of: Article 18 TFEU; Articles 7 and 10 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1); Article 24(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77 and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34), and Article 4 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1).


In that regard, it is apparent from settled case-law of the Court that the ‘standstill’ clause contained in Article 13 of Decision No 1/80 prohibits generally the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the <mask> on national territory subject to conditions more restrictive than those which applied at the time when Decision No 1/80 entered into force with regard to the Member State concerned (judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 25 and the case-law cited).


On the autonomous application, by comparison with provisions of EU law, such as those of Directive 2004/38, of Article 10 of the Regulation of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union (OJ 2011 L 141, p. 1), which allows the children of a national of a Member State who works or has worked in the host Member State, together with the parent who is their primary carer, to rely on that provision without being required to satisfy the ‘sufficient resources’ and ‘comprehensive sickness insurance cover’ conditions, see the judgment in Jobcenter Krefeld (paragraphs 38 and 39 and the case-law cited).


Thus, a national of a Member State who, while maintaining his employment in that State, transfers his residence to another Member State, comes within the scope of the provisions of the FEU Treaty on <mask>, and hence of Regulation No 492/2011 (see, to that effect, as regards Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), repealed and replaced by Regulation No 492/2011, judgment of 18 July 2007, Hartmann, C‑212/05, EU:C:2007:437, paragraph 19).


40 It is true that the earlier acts that were codified by Directive 2004/38 do not appear to contain that reference to a ‘household’, but rather referred to the requirement that the persons ‘live under the same roof’ (see, for example, Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on <mask> within the Community (OJ, English Special Edition 1968 (II), p. 475) or Article 1(2) of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14)). The applicant in the main proceedings infers from that fact that Directive 2004/38, recital 3 of which states that it intends ‘to simplify and strengthen the right of free movement and residence of all Union citizens’, cannot be interpreted more restrictively as compared with the situation under the law before that directive entered into force.


57. With these factors in mind, I consider that the concept of ‘involvement’ ought to be understood as including eligibility for the administration or management posts of a trade union. I do not see why the principle of equal treatment should apply to such eligibility in <mask> and not in combatting discrimination on grounds of age.


(Reference for a preliminary ruling — <mask> — Equal treatment — Income tax — Legislation for the avoidance of double taxation — Pension received in a Member State other than that of residence — Method of calculating the exemption in the Member State of residence — Loss of part of the benefit of certain tax advantages)


(Failure of a Member State to fulfil obligations – Internal markets for electricity and natural gas – Directive 2009/72/EC – Article 2(21) – Article 19(3), (5) and (8) – Article 37(1)(a) and (6)(a) and (b) – Directive 2009/73/EC – Article 2(20) – Article 19(3), (5) and (8) – Article 41(1)(a) and (6)(a) and (b) – Concept of a ‘vertically integrated undertaking’ – Effective unbundling of networks from the activities of production and supply of electricity and natural gas – Independent transmission operator – Independence of the staff and the management of the transmission system operator – Transitional periods – Shares held in the capital of the vertically integrated undertaking – National regulatory authorities – Independence – Exclusive powers – Article 45 TFEU – <mask> – Charter of Fundamental Rights of the European Union – Article 15 – Right to engage in work and to pursue an occupation – Article 17 – Right to property – Article 52(1) – Restrictions – Principle of democracy)


Therefore, the legislation at issue in the main proceedings leads to a partitioning of the employment market for school teachers in the territory of the Land of Lower Saxony and runs counter to the very principle of <mask> (see, by analogy, judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 86, and order of 10 March 2005, Marhold, C‑178/04, not published, EU:C:2005:164, paragraph 38).


In order to answer this question, in the first place, it should be pointed out, on the one hand, that any EU national who, irrespective of his place of residence and his nationality, exercises the right to <mask> and who is employed in a Member State other than that of his residence comes within the scope of Article 45 TFEU, a provision which Regulation No 492/2011 is intended to put into concrete terms (see, to that effect, judgment of 21 February 2006, Ritter-Coulais, C‑152/03, EU:C:2006:123, paragraph 31).


Moreover, those rules do not go beyond what is necessary to attain the objective pursued. The restrictions on the <mask> guaranteed by Article 45 TFEU and the right to pursue a freely chosen profession guaranteed in Article 15(1) of the Charter, which result from all the specific rules relating to that operator, including rules on transitional periods, and function to ensure the operator’s independence, are limited in time such that they only produce effects for a clearly circumscribed period.


The objective pursued by both Regulation No 1612/68 and Regulation No 492/2011, namely to ensure <mask>, requires the best possible conditions for the integration of the worker’s family in the host Member State, and a refusal to allow the parents caring for the children to remain in the host Member State while those children are attending school might deprive the children of a right granted to them by the EU legislature (judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department, C‑310/08, EU:C:2010:80, paragraph 55 and the case-law cited).


As regards the <mask>, guaranteed by Article 45 TFEU, the Raad van State (Council of State) observes that Katoen Natie Bulk Terminals and General Services Antwerp are Belgian logistics companies operating in Belgian port areas which, in order to achieve their social objective, seek to be able to employ dockers other than recognised dockers, irrespective of their nationality. In their capacity as employers wishing to employ, in the Member State in which they are established, workers who are nationals of another Member State, those companies can thus invoke the freedom of movement for workers, enshrined in Article 45 TFEU. In so far as it appears that the conditions set out in the Royal Decree of 2004 make it complicated, for nationals of other Member States, to perform dock work in the Belgian territory and impede the freedom of movement for workers, employers such as the companies referred to should also be able to oppose such legislation. That also shows that the dispute pending before that court cannot be reduced to a purely internal situation.


The last aforementioned judgment concerned the free movement of workers under what is now Article 45 TFEU. A British national, having pleaded guilty to a criminal offence, had been sentenced to move from England to Northern Ireland and not to return to England or Wales. All the facts were therefore confined to the United Kingdom. In such a situation it was fairly straightforward for the Court to rule that Article 45 TFEU  ‘does not … aim to restrict the power of the Member States to lay down restrictions, within their own territory, on the freedom of movement of all persons subject to their jurisdiction in implementation of domestic criminal law’   and that ‘the provisions of the Treaty on <mask> cannot therefore be applied to situations which are wholly internal to a Member State, in other words, where there is no factor connecting them to any of the situations envisaged by [EU] law’.


Such an interpretation therefore ensures the effectiveness of Article 10 of Regulation No 492/2011, as required by the Court’s case-law. Moreover, it appears to be fully consistent with the initial objective of that regulation, which is to ensure <mask>. Which worker would leave his country of origin, and endeavour to integrate himself as far as possible into the society of the host Member State, including economically, and to educate his children there if he knows that, if his situation becomes less comfortable, without being able to count on the solidarity of the Member State which welcomed him, he would necessarily have to return to his country of origin and remove his children from the educational and linguistic system into which they had been integrated up until that point? In addition, that interpretation appears to be in line with the Court’s case-law which excludes the right of residence of the children and the parent who is their primary carer from compliance with the condition of self-sufficiency.


1. By the present reference for a preliminary ruling, the Överklagandenämnden för studiestöd (National Board of Appeal for Student Aid, Sweden) seeks an interpretation of Article 45 TFEU and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on <mask> within the Union. (2) The reference arose in the context of an appeal by the applicant in the main proceedings, MCM, against the Centrala studiestödsnämnden (Swedish Board of Student Finance, which is responsible for providing financial aid to students; ‘the CSN’) in relation to MCM’s claim to obtain student financial aid from the Swedish State for his studies in Spain. I. The facts giving rise to the dispute in the main proceedings and the question referred for a preliminary ruling


In that regard, point (a) of the first paragraph of Article 48 TFEU requires, to provide <mask>, that the European Parliament and the Council of the European Union adopt the measures necessary to aggregate all periods of insurance completed under the laws of the several countries not only for the purpose of acquiring and retaining the right to benefit, but also for the purpose of calculating the amount of benefit.


With regard to the provisions of the FEU Treaty on the <mask>, it follows from settled case-law that any EU national working in a Member State other than his Member State of origin and who has accepted a post in an international organisation comes within the scope of Article 45 TFEU (see, to that effect, judgments of 15 March 1989, Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraph 11; of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 24; and of 31 May 2017, U, C‑420/15, EU:C:2017:408, paragraph 13).


As regards that situation, it must be recalled that the Court has previously held on several occasions that, as a derogation from the principle of equal treatment laid down in the first paragraph of Article 18 TFEU, of which Article 24(1) of Directive 2004/38 is merely a specific expression, Article 24(2) must be interpreted strictly, and in accordance with the provisions of the Treaty, including those relating to Union citizenship and <mask> (judgment of 21 February 2013, N., C‑46/12, EU:C:2013:97, paragraph 33).


14 In those circumstances, the Giudice di pace di Massa (Magistrates’ Court, Massa, Italy) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the concept of the prohibition of “discrimination on grounds of nationality” under Article 18 TFEU to be interpreted as meaning that Member States are prohibited from enacting any legislation that could, indirectly, covertly and/or materially, cause difficulties for nationals of other Member States? (2) If the first question is answered in the affirmative, could Article 93(1-bis) of [the Highway Code], concerning the prohibition on driving with foreign number plates (registered in anybody’s name) after 60 days of residence in Italy, cause difficulties for nationals of other Member States (who own cars with foreign number plates) and consequently be discriminatory on grounds of nationality? (3) Are the following concepts: a. “right to move and reside freely within the territory of the Member States”, as referred to in Article 21 TFEU; b. “internal market” which “shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”, as referred to in Article 26 TFEU; c. “freedom of movement for workers … secured within the Union”, as referred to in Article 45 TFEU; d. “[prohibited] restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State …”, as referred to in Articles 49 to 55 TFEU; [and] e. “restrictions on freedom to provide services within the Union … prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”, as referred to in Articles 56 to 62 TFEU to be interpreted as meaning that national provisions that could, indirectly, covertly and/or materially, limit or hinder the ability of European citizens to exercise the right of freedom of movement and residence within the territory of the Member States, the right of <mask> within the Union, the freedom of establishment and the freedom to provide services, or in any way affect those rights, are also prohibited? (4) If the third question is answered in the affirmative, could Article 93(1-bis) of [the Highway Code], concerning the prohibition of driving with foreign number plates (registered in anybody’s name) after 60 days of residence in Italy, limit, hinder or in any way affect the exercise of the right of freedom of movement and residence in the territory of the Member States, the right of freedom of movement for workers within the Union, the freedom of establishment and the freedom to provide services?’ Consideration of the questions referred


As regards whether national legislation such as that at issue in the main proceedings constitutes an obstacle to the <mask> within the European Union, it must be borne in mind that Article 45(1) TFEU precludes any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by the FEU Treaty (see, to that effect, judgments of 1 April 2008, Gouvernement de la Communauté française et gouvernement wallon, C‑212/06, EU:C:2008:178, paragraph 45, and of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 26).


(Reference for a preliminary ruling – Article 45 TFEU – Social security for migrant workers – Regulation (EC) No 883/2004 – Article 1(i) – <mask> – Equal treatment – Social advantages – Directive 2004/38 – Article 2(2) – Regulation (EU) No 492/2011 – Article 7(2) – Family allowance – Concept of ‘members of the family’ – Exclusion of the children of the spouses of non-resident workers – Difference in treatment in comparison with the children of the spouses of resident workers – Justification)


It follows that <mask> implies the right for nationals of Member States to move freely within the territory of other Member States and to stay there for the purposes of seeking employment (see, to that effect, judgment of 26 February 1991, Antonissen, C‑292/89, EU:C:1991:80, paragraph 13), that right having been codified by the EU legislature in Article 14(4)(b) of Directive 2004/38. In that regard, it must be pointed out that the effectiveness of Article 45 TFEU is secured in so far as EU legislation or, in its absence, the legislation of a Member State gives persons concerned a reasonable time in which to apprise themselves, in the territory of the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged (see, to that effect, judgment of 26 February 1991, Antonissen, C‑292/89, EU:C:1991:80, paragraph 16).


That interpretation of Article 7(2) of Regulation No 492/2011, read together with Article 10 thereof, contributes to the attainment of the objective pursued by that regulation, namely promoting <mask>, since it ensures the creation of the best possible conditions for the integration of the family members of Union citizens who have made use of that freedom and have worked in the host Member State.


‘Do the principles of freedom of establishment, non-discrimination, equal treatment, the protection of competition and <mask>, 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?’


As has been pointed out in paragraph 33 above, the standstill clause set out in Article 13 of Decision No 1/80 prohibits generally the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the <mask> on national territory subject to conditions more restrictive than those which applied at the time when Decision No 1/80 entered into force with regard to the Member State concerned (judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 25).


In this instance, it must be observed that, since the contested directive amends certain provisions of Directive 96/71 or inserts new provisions into that directive, Directive 96/71 is part of the legal context of the contested directive, as attested by, in particular, recitals 1 and 4 of the contested directive, the first of which states that the Union is further developing the fundamental principles of the internal market, namely <mask>, freedom of establishment and freedom to provide services, the aim being to guarantee a level playing field for businesses and respect for the rights of workers, and the second of which states that, more than 20 years after its adoption, it is necessary to assess whether Directive 96/71 still strikes the right balance between, on the one hand, the need to promote the freedom to provide services and to ensure a level playing field, and, on the other, the need to protect the rights of posted workers.


48. The increase in <mask> within the European Union and the resulting indiscriminate export of family allowances and child tax credit, irrespective of the State in which the children for whom the benefits were granted were permanently resident, led to increasing distortions in that social security scheme. If the child lived in a Member State with low purchasing power, the effect of the support exceeded the relief sought. (28) Conversely, if the child lived in a Member State with a higher purchasing power, the relief fell short of the targeted measure.


In that regard, it should be noted, at the outset, that both Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 constitute standstill clauses which generally prohibit the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the <mask> on national territory subject to conditions more restrictive than those which applied at the time when those decisions entered into force with regard to the Member State concerned (judgment of 7 August 2018, Yön, C‑123/17, EU:C:2018:632, paragraph 39).


While one of the aims of Article 12(1) of Regulation No 883/2004, the scope of which is defined in Article 14(2) of Regulation No 987/2009, is to promote freedom to provide services guaranteed by Articles 56 to 62 TFEU for the benefit of undertakings which avail themselves of it by sending workers to Member States other than that in which they are established, that provision also pursues the aim referred to in the preceding paragraph, as is apparent from paragraphs 34 to 36 of this judgment, by laying down a rule derogating from the rule of the Member State of employment, laid down in Article 11(3)(a) of Regulation No 883/2004, in order to avoid the complications which might result from the application of that latter rule and thus to overcome obstacles likely to impede <mask> (see, to that effect, judgment of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraphs 37 and 38 and the case-law cited).


In the present case, in tightening the conditions for the admission of the spouse of a Turkish national — that national being a lawful worker on the Danish labour market — for the purposes of family reunification, the national measure at issue in the main proceedings constitutes, as the Advocate General observed in point 15 of his Opinion, a ‘new restriction’, within the meaning of Article 13 of Decision No 1/80, on B’s exercise of the <mask> in the Member State concerned.


The restrictions that the rules on transitional periods impose on the <mask>, enshrined in Article 45 TFEU, where the relevant parts of undertakings of the VIU are located in several Member States, and the fundamental right to pursue a freely chosen occupation, enshrined in Article 15(1) of the Charter, where the parts are confined to a single Member State, would, moreover, be justified only if Article 19(3) and (8) of Directives 2009/72 and 2009/73 were to apply exclusively to transfers of staff.


The Court began by recalling that the <mask> laid down in Article 48(1) to (3) of the EEC Treaty (now Article 45(1) to (3) TFEU) forms one of the foundations of the Union, that the provisions laying down that freedom must be given a broad interpretation and that a strict interpretation of that article would jeopardise the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective.   The Court also stated that Article 48(3) of the EEC Treaty (now Article 45(3) TFEU) enumerates, in a non-exhaustive way, certain rights benefiting nationals of Member States in the context of the free movement of workers and that this freedom entails the right for such nationals to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment.


‘Do the principles of freedom of establishment, non-discrimination, equal treatment, the protection of competition and <mask>, 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?’


3. The distinguishing feature of the case lies in the fact that the applicant’s credit contract was concluded in 2007, and thus before the Republic of Croatia’s <mask> to the EU. However, the replacement of the unfair terms by virtue of the abovementioned legislative reform did not take place until after the accession. Against that background, the case raises the question of the applicability ratione temporis of Article 6(1) of Directive 93/13 in the main proceedings with regard to the restitutory effect of the statutory provision in question. In other words, it needs to be clarified whether a provision adopted after the accession of a Member State must also guarantee that restitutory effect in respect of unfair terms in a contract concluded before the accession. II. Legal framework


The Kingdom of Spain states that, in the contested decision, the Commission implicitly treated Kosovo in the same way as a ‘third country’ within the meaning of Article 35 of Regulation 2018/1971, even though it had no legal basis for doing so. It observes that the fact that Kosovo concluded an SAA with the European Union does not make it a ‘third country’ within the meaning of that provision and that Kosovo cannot be treated like EEA or EFTA States or candidates for <mask>. It also states that Article 2 of the Kosovo SAA confirms that approach.


(Reference for a preliminary ruling – Treaty of <mask> of the Republic of Bulgaria and Romania to the European Union – Act concerning the conditions of accession to the European Union of the Republic of Bulgaria and Romania – Articles 37 and 38 – Appropriate measures – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Decision 2006/928/EC – Legal nature and effects of the cooperation and verification mechanism and of the reports established by the Commission on the basis of that mechanism – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Laws and government emergency ordinances adopted in Romania in the course of 2018 and 2019 concerning the organisation of the judicial system and the liability of judges – Interim appointment to management positions of the Judicial Inspectorate – Establishment of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system – Financial liability of the State and personal liability of judges in the event of judicial error)


71. I agree with the PVA and the Austrian Government that, at the time when the Appellant relocated to Belgium in 1987 and then Hungary in 1991, she could not have possibly thought that she was exercising her right to freedom of movement pursuant to Article 21 TFEU and that, as a result, she may be entitled to have the periods that she completed in those other Member States treated by the PVA as though they had been completed on the Austrian territory. By virtue of Article 2 of the Act of <mask> relating to the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, (37) the provisions of the original Treaties and the acts adopted by the institutions before accession did not become binding on Austria until 1 January 1995.


not precluding national legislation, such as that at issue in the main proceedings, which provides for the exclusion from the right to deduct VAT paid on the purchase of overnight accommodation and catering services, that exclusion having been introduced before the <mask> of the Member State concerned to the European Union and maintained thereafter, in accordance with the second paragraph of Article 176 of Directive 2006/112, and which means that a taxable person, who does not provide tourism services, is deprived of the right to deduct VAT paid on the purchase of such overnight accommodation and catering services which that taxable person re-invoices to other taxable persons.


See, in particular, judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraphs 46 and 47 and the case-law cited). I note that the case-law developed in relation to Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by subsequent Conventions on the <mask> of new Member States to that convention, also applies to the Brussels Ia Regulation, whenever the provisions in question can be regarded as equivalent (see, to that effect, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 27), and of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 31)). That is so in relation to the provisions which are relevant in the present case, namely Article 1(1) of the Brussels Ia Regulation (see, in particular, judgments of 11 April 2013, Sapir and Others (C‑645/11, EU:C:2013:228, paragraphs 31 and 32), and of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraphs 31 and 32)) and Article 7(1) of that regulation (see, in particular, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraphs 43 and 44), and of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraph 20)). Accordingly, in the remainder of this Opinion, all references will be to the Brussels Ia Regulation, though I will cite the case-law relating to the instruments which preceded it.


9 Article 38 of the Act of <mask> provides: ‘If there are serious shortcomings or any imminent risks of such shortcomings in Bulgaria or Romania in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, the Commission may, until the end of a period of up to three years after accession, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect. These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between Bulgaria or Romania and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’