1 This request for a preliminary ruling concerns the interpretation of paragraph 20.15, and paragraph 20.309(h), of Annex A to Regulation (EU) No 549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts in the European Union (OJ 2013 L 174, p. 1).
2 The request has been made in proceedings between Secrétariat général de l’enseignement catholique ASBL (SeGEC) and six other non-profit associations active in the field of education in Belgium (‘the associations at issue’) and the Institut des comptes nationaux (‘ICN’) (National Accounts Institute) and the Banque nationale de Belgique concerning the classification, by ICN, of the associations at issue in the general government sector, state government subsector, under the European System of accounts 2010, established by RegulationNo 589/2013 (‘the ESA 2010’).
3 Recitals 1 and 3 of Regulation No 549/2013 are worded as follows: ‘(1) Policymaking in the Union and monitoring of the economies of the Member States and of the economic and monetary union (EMU) require comparable, up-to-date and reliable information on the structure of the economy and the development of the economic situation of each Member State or region. … (3) Citizens of the Union need economic accounts as a basic tool for analysing the economic situation of a Member State or region. For the sake of comparability, such accounts should be drawn up on the basis of a single set of principles that are not open to differing interpretations. The information provided should be as precise, complete and timely as possible in order to ensure maximum transparency for all sectors.’
4 Annex A to that regulation, relating to the methodology of the ESA 2010 includes Chapter1, entitled ‘General features and basic principles’, which containsparagraphs 1.01, 1.19, 1.34 to 1.36 and 1.57 of that annex. Those paragraphs state: ‘1.01 The [ESA 2010] is an internationally compatible accounting framework for a systematic and detailed description of a total economy (that is, a region, country or group of countries), its components and its relations with other total economies. … 1.19 For the [European Union] and its Member States, the figures from the [ESA 2010] framework play a major role in formulating and monitoring their social and economic policies. … 1.34 Sector accounts are created by allocating units to sectors and this enables transactions and balancing items of the accounts to be presented by sector. The presentation by sector reveals many key measures for economic and fiscal policy purposes. The main sectors are households, government, corporations (financial and non-financial), non-profit institutions serving households (NPISHs) and the rest of the world. The distinction between market and non-market activity is an important one. An entity controlled by government, which is shown to be a market corporation, is classified in the corporation sector, outside the general government sector. Thus, the deficit and debt levels of the corporation will not be part of the general government deficit and debt. 1.35 It is important that clear and robust criteria for allocating entities to sectors are set out. The public sector consists of all institutional units resident in the economy that are controlled by government. The private sector consists of all other resident units. Table 1.1 sets out the criteria used to distinguish between public and private sector, and in the public sector between the government sector and public corporations sector, and in the private sector between the NPISH sector and the private corporations sector. Table 1.1 Criteria Controlled by government (public sector) Privately controlled (private sector) Non-market output General government NPISH Market output Public corporations Private corporations 1.36 Control is defined as the ability to determine the general policy or programme of an institutional unit. Further details in relation to the definition of control are given in paragraphs 2.35 to 2.39. … 1.57 Institutional units are economic entities that are capable of owning goods and assets, of incurring liabilities and of engaging in economic activities and transactions with other units in their own right. For the purposes of the ESA 2010 system, the institutional units are grouped together into five mutually exclusive domestic institutional sectors: (a) non-financial corporations; (b) financial corporations; (c) general government; (d) households; (e) [NPISHs]. The five sectors together make up the total domestic economy. Each sector is also divided into subsectors. The ESA 2010 system enables a complete set of flow accounts and balance sheets to be compiled for each sector, and subsector, as well as for the total economy. Non-resident units can interact with these five domestic sectors, and the interactions are shown between the five domestic sectors and a sixth institutional sector: the rest of the world sector.’
5 Chapter 2, which is entitled ‘Units and groupings of units’, of that annex includesparagraphs 2.12, 2.39, 2.113 and 2.130 of the annex, which are worded as follows: ‘2.12 Definition: an institutional unit is an economic entity characterised by decision-making autonomy in the exercise of its principal function. A resident unit is regarded as constituting an institutional unit in the economic territory where it has its centre of predominant economic interest if it has decision-making autonomy and either keeps a complete set of accounts, or is able to compile a complete set of accounts. To have autonomy of decision in respect of its principal function, an entity must be: (a) entitled to own goods and assets in its own right; it will be able to exchange the ownership of goods and assets in transactions with other institutional units; (b) able to take economic decisions and engage in economic activities for which it is responsible and accountable at law; (c) able to incur liabilities on its own behalf, to take on other obligations or further commitments and to enter into contracts; and (d) able to draw up a complete set of accounts, comprised of accounting records covering all its transactions carried out during the accounting period, as well as a balance sheet of assets and liabilities. … 2.39 For non-profit institutions recognised as independent legal entities, the five indicators of control to be considered are: (a) the appointment of officers; (b) the provisions of enabling instruments; (c) contractual agreements; (d) the degree of financing; (e) the degree of government risk exposure. As with corporations, a single indicator may be sufficient to establish control in some cases, but, in other cases, a number of separate indicators may collectively indicate control. … General government (S.13) … 2.113 The general government sector is divided into four subsectors: … b) state government (excluding Social Security funds) (S.1312); … [NPISHs] (S.15) … 2.130 … Non-market NPISHs controlled by general government classified in the general government sector (S.13). …’
6 Chapter 3 of the same annex includes paragraph 3.31, worded as follows: ‘For other private producers, a distinction is made between private non-profit institutions and other private producers. Definition: a private non-profit institution (NPI) is defined as a legal or social entity acting for the purpose of producing goods and services whose status does not permit them to be a source of income, profit or other financial gains for the units that establish, control or finance them. Where their productive activities generate surpluses, such surpluses cannot be appropriated by other institutional units. … A private NPI is classified to the NPISH sector if it is a non-market producer, except when it is under the control of government. When a private NPI is controlled by government, then it is classified in the general government sector. …’
7 Chapter 20, entitled ‘The Government accounts’, in Annex A to RegulationNo 549/2013 includes paragraphs 20.05, 20.13, 20.15, 20.18, 20.29, 20.306, 20.309 and 20.310 of the Annex, which read as follows: ‘20.05 The general government sector (S.13) consists of all government units and all non-market non-profit institutions (NPIs) that are controlled by government units. … NPIs classified to the general government sector 20.13 Non-profit institutions (NPIs) that are non-market producers and are controlled by government units are units of the general government sector. … 20.15 Control of a NPI is defined as the ability to determine the general policy or programme of the NPI. Public intervention in the form of general regulations applicable to all units working in the same activity is irrelevant when deciding whether the government holds control over an individual unit. To determine whether a NPI is controlled by the government, the following five indicators of control should be considered: (a) the appointment of officers; (b) other provisions of the enabling instrument, such as the obligations in the Statute of the NPI; (c) contractual agreements; (d) degree of financing; (e) risk exposure. A single indicator can be sufficient to establish control. However, if a NPI that is mainly financed by government remains able to determine its policy or programme to a significant extent along the lines mentioned in the other indicators, then it would not be considered as being controlled by government. In most cases, a number of indicators will collectively indicate control. A decision based on these indicators will be judgemental in nature. … Public control 20.18 Control over an entity is the ability to determine the general policy or programme of that entity. … … The market/non-market test 20.29 … The ability to undertake a market activity will be checked notably through the usual quantitative criterion (the 50% criterion), using the ratio of sales to production costs (as defined in paragraphs 20.30 and 20.31). To be a market producer, the public unit shall cover at least 50% of its costs by its sales over a sustained multi-year period. … 20.306 All institutional units included in the public sector are resident units controlled by government, either directly or indirectly by public sector units in aggregate. The control over an entity is defined as the ability to determine the general policy of that entity. This is described in more detail below. … Public sector control 20.309 Control of a resident public sector unit is defined as the ability to determine the general policy of the unit. This can be through the direct rights of a single public sector unit or the collective rights of many. The following indicators of control are to be considered: (a) rights to appoint, veto or remove a majority of officers, board of directors etc. The rights to appoint, remove, approve or veto a majority of the governing board of an entity are sufficient to determine control. Such rights may be directly held by one public sector unit, or indirectly by public sector units in aggregate. If the first set of appointments are controlled by the public sector but subsequent replacements are not subject to these controls, then the entity remains in the public sector until the time when the majority of the directors are not controlled appointments; (b) rights to appoint, veto or remove key personnel. If the control of general policy is effectively determined by influential members of the board, such as the chief executive, chairperson and finance director, then the powers to appoint, veto or remove those personnel are given greater prominence; (c) rights to appoint, veto or remove a majority of appointments for key committees of the entity. If key factors of the general policy, such as remuneration of senior staff, pay and business strategy, are delegated to subcommittees, then the rights to appoint, remove or veto of directors on these subcommittees is a determinant of control; … (g) rights to control from agreements/permission to borrow. Lenders often impose controls as conditions of making loans. If the public sector imposes controls through lending, or to protect its risk exposure from a guarantee, which are tougher than a private sector entity would typically face from a bank, this is an indicator of control. If an entity requires permission from the public sector to borrow, then this is an indicator of control; (h) control via excessive regulation. When regulation is so tight that it effectively dictates the general policy of the business, it is a form of control. Public authorities can in some cases have powerful regulatory involvement, particularly in areas such as monopolies and privatised utilities where there is a public service element. It is possible for regulatory involvement to exist in important areas, such as price setting, without an entity ceding control of general policy. Choosing to enter into or operate in a highly regulated environment is similarly an indicator the entity is not subject to control; (i) others. Control may also be obtained from statutory powers or contained in an entity’s constitution, for example to limit the activities, objectives and operating aspects, approve budgets or prevent the entity changing its constitution, dissolving itself, approving dividends, or terminating its relationship with the public sector. An entity that is fully, or close to fully, financed by the public sector is considered to be controlled if the controls on that funding stream are restrictive enough to dictate the general policy in that area. 20.310 Each classification case needs to be judged on its own merits and some of these indicators may not be relevant to the individual case. Some indicators, such as (a), (c) and (d) in paragraph 20.309, are sufficient by themselves to establish control. For others a number of separate indicators may collectively indicate control.’
8 Article 24 of the Constitution provides: ‘1. There shall be freedom of education; any measures to prevent that freedom shall be forbidden; the punishment of offences shall be governed only by law or decree. The Community shall ensure parental freedom of choice. The Community shall provide neutral education. This entails, in particular, respect for the philosophical, ideological and religious views of parents and pupils. Schools run by the public authorities shall offer, until the end of compulsory schooling, a choice between instruction in one of the recognised religions and instruction in non-denominational ethics. 2. If a Community, as an organising authority, wishes to delegate powers to one or more autonomous entities, it may do so only by a decree adopted by a two-thirds majority. 3. Everyone has the right to education which respects fundamental rights and freedoms. Access to education shall be free of charge until the end of compulsory schooling. All pupils of compulsory school age have the right to moral or religious education at the Community’s expense. 4. All pupils, students, parents, staff members and educational institutions shall be equal before laws and decrees. Laws and decrees shall take into account objective differences, in particular characteristics specific to each organising authority, which justify appropriate treatment. 5. The Community’s organisation, recognition or subsidising of education shall be governed by law or decree.’
9 It is apparent from the request for a preliminary ruling that, since its enactment in 1831, the Belgian Constitution has provided for the principle of freedom of education. The organisation of pre-primary, primary, secondary and higher non-University education has been the subject of national legislation which distinguishes between educational establishments which, on the one hand, are part of ‘official education’, constituted by a network of schools organised by the State, provinces, communes, associations of communes or any public law corporation, and, on the other hand, are part of ‘subsidised independent education’, denominational and non-denominational, constituted by a network of schools subsidised by the competent federal body, in the present case the French Community, but run by a private-law corporation. The associations at issue are part of the subsidised independent education network and are, respectively, a federation representing organising authorities of Catholic education, a grouping of organising authorities of non-denominational independent education and five organising authorities of denominational independent subsidised educational institutions.
10 In Belgium, the ICN is responsible for compiling the statistics required by the ESA 2010 and classifying for that purpose the various economic operators by sectors, in the categories defined by Regulation No 549/2013, the main sectors being households, general government, corporations (financial and non-financial), NPISHs and the rest of the world.
11 By a decision of 28 March2018, the Board of Directors of the ICN considered that the associations at issue are ‘distinct institutional units’, within the meaningofparagraph 2.12 of Annex A to that regulation, which are controlled by the general government, more specifically by the French Community. Consequently, the ICN considered that the organising authorities, as non-market units, should be classified in the general government sector, state government (sector S.1312), within the meaning of paragraph 2.113(b) of Annex A to that regulation. The ICN stated inter alia that public control, within the meaning of the ESA 2010, of subsidised independent educational institutions is established since, inter alia, educational activity is entirely or almost entirely financed by the public sector and that financing is subject to compliance with regulatory standards.
12 On 14 June2018, the associations at issue brought an action for annulment against that classification decision before the referring court, the Conseil d’État (Council of State, Belgium). They contest in particular the ICN’s assessment that they are controlled by the French Community and consider that, as NPISHs, they were wrongly classified in the general government sector.
13 The referring court states, first of all, that the organising authorities of subsidised independent educational establishments, which have taken the legal form of non-profit associations, may be regarded as NPIs, within the meaning of Annex A of Regulation No 549/2013, and that the associations at issue disagree with the ICN regarding the interpretation of the concept of ‘public control’, within the meaning of that annex, the decision of28 March 2018 focusing, in that regard, on three of the five indicators of control referred to in paragraph 20.15 of the annex, namely the degree of financing, ‘other provisions of the enabling instrument’and risk exposure.
14 Next, that court considers that, although subsidised independent education is mainly financed by the French Community, a public authority, the criterion of financing, however, does not in itself make it possible to establish that there is public control of an NPI if the NPI remains able to determine its policy or programme to a significant extent. Moreover, that court, relying on paragraph 77 of the judgment of 11 September 2019, FIG and FISE, (C‑612/17 and C‑613/17, EU:C:2019:705), is of the opinion that the question of control of an NPI by government is not concerned with whether government exerts a decisive influence over the management or decision-making ability of the institutional unit in question, which, by definition, has full autonomy in that respect, but rather with whether government is in a position, notwithstanding such autonomy, to manage and constrain the unit in the very determination and implementation of its objectives, activities and strategic approaches.
15 Lastly, according to the referring court, the ICN’s decision to classify the organising authorities of subsidised independent educational establishments in the general government sector is based essentially on the various obligations imposed on them in order to qualify for the financing granted by the French Community. Those obligations should be analysed in the light of the indicator of control provided for inparagraph 20.309(h) of Annex A to Regulation No 549/2013, relating to ‘control via excessive regulation’. In the present case, however,according to that court, although the various pieces of evidence put forward by the ICN show that the activity of the associations at issue is subject to significant national regulation, it is difficult to describe that regulation as ‘excessive’, within the meaning of that provision, given the lack of guidance on the matter in the Court’s case-law. It is in order to obtain clarification on this matter that the referring court formulates its first question.
16 Moreover, in its second question, the referring court wonders about the scope of paragraph 20.15 of Annex A to Regulation No 549/2013 which provides, in essence, in its first sentence, that control by a government unit of an NPI is defined as the ability to determine its general policy or programme, but which provides, in its second sentence, that public intervention in the form of general regulations applicable to all units working in the same activity is irrelevant when deciding whether the government holds control over an individual unit. In the present case, the referring court states that the ICN’s decision is also based on the fact that the legal regime applicable to staff in subsidised independent education is similar to the staff regulations of teachers in official education, which are themselves similar to the public service regulations. It is therefore necessary to determine whether the ‘staff regulations’applicable to staff in subsidised independent education may be regarded as ‘general regulations applicable to all units working in the same activity’. If so, in application of the ‘negative criterion’in the second sentence of the provision, it must be considered that the existence of those ‘staff regulations’is irrelevant for determining that the government ‘holds control over an individual institutional unit’. However, the referring court states that, if the ‘same activity’within the meaning of that second sentence, is education itself, it must be noted that, notwithstanding the similarity between the two legal regimes respectively applicable to the two categories of staff at issue, a number of national rules apply only to staff in subsidised independent education but are not, however, specific to each of its ‘individual units’constituted by the various organising authorities.
17 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is paragraph 20.309(h) of Annex A to [Regulation No 549/2013] to be interpreted as meaning that regulation by which government competent in the field of education: - approves curricula, - determines both the structure of education and priority and specific duties, institutes monitoring of the conditions for pupil enrolment and exclusion, decisions of class councils and financial participation, arranges for schools to be grouped into structured networks and requires educational, teaching and institutional plans to be drawn up and activity reports to be delivered, - organises checks and inspections relating specifically to subjects taught, academic level and implementation of the language laws, but excluding teaching methods, and - imposes a minimum number of pupils per class, stream, level or other subdivision, unless an exemption is granted by a minister, must be regarded as ‟excessive” within the meaning of that provision, to the extent that it effectively dictates or binds the general policy or programme of units working in the activity concerned? (2) Is paragraph 20.15 of Annex A to that regulation to be interpreted as including in the concept of general regulations specific rules which constitute “staff regulations” applicable to the staff of non-profit institutions in the field of education which are financed by government?’
18 By its first question, the referring court wishes, in essence, to know whether paragraph 20.309(h)of Annex A to Regulation No 549/2013 is to be interpreted as meaning that the concept of ‘excessive regulation’covers national regulations applicable to the NPIs active in the field of education which, although subsidised by the competent national authority, enjoy freedom of education guaranteed by the Constitution, where those regulations confer on that authority the task or right: - to approve curricula; - to determine both the structure of education and priority and specific duties, to institute monitoring of the conditions for pupil enrolment and exclusion, decisions of class councils and financial participation, to arrange for schools to be grouped into structured networks and to require educational, teaching and institutional plans to be drawn up and activity reports to be delivered; - to organise checks and inspections relating specifically to subjects taught, academic level and implementation of the language laws, but excluding teaching methods, and - to impose a minimum number of pupils per class, stream, level or other subdivision, unless an exemption is granted by a minister.
19 It must be observed, at the outset, that, by thatquestion, the referring court is asking the Court, in essence, to examine the scope and extent of those obligations imposed on the organising authorities of subsidised independent education under the Belgian legislation and to decide whether they should be regarded as ‘excessive’to the extent that they effectively dictate or bind the general policy orprogramme of units working in the activity concerned in the light of the criteria and indicators required under theESA 2010.
20 By so doing, the referring court’s request in that regard is for the Court to examine the national legislation applicable in the light of the extent of the influence exercised by the French Community in the area of activity of subsidised education.
21 In that regard, it must be recalledthat, in accordance with the Court’s settled case-law, in the context of the procedure provided for inArticle 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter does not have jurisdiction to interpret national law and only the national courts may establish and assess the facts of the dispute in the main proceedings and determine the exact scope of national laws, regulations or administrative provisions (judgment of 4 March 2020,Schenker, C‑655/18, EU:C:2020:157, paragraph 19 and the case-law cited).
22 However, the Court, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (judgment of 3 October 2019, Fonds du Logement de la Région de Bruxelles-Capitale, C‑632/18, EU:C:2019:833, paragraph 49 and the case-law cited).
23 In the present case, it must be observed, first of all, that it is apparent from recitals 1 and 3 of Regulation No 549/2013 and paragraphs 1.01 and 1.19 of Annex A thereto, that the ESA 2010 establishes a reference framework for drawing up the accounts of the Member States, for the purposes of both Union citizens and the European Union itself. The accounts should be drawn up on the basis of a single set of principles that are not open to differing interpretations, so that comparable results can be obtained (see, to that effect, judgment of 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 32).
24 For accounting purposes under the ESA 2010, all institutional units - defined, in essence, in paragraphs 1.57 and 2.12 of Annex A to Regulation No 549/2013, as an economic entity characterised by decision-making autonomy in the exercise of its principal function - must be allocated to one of the six main sectors identified in paragraph 1.34 of Annex A to that regulation, namely households, government, financial corporations, non-financial corporations, NPISHs or the rest of the world (judgment of 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 33).
25 In the case in the main proceedings, each of the associations at issue constitutes an ‘institutional unit’, within the meaning ofparagraphs 1.57 and 2.12 of Annex A to Regulation No 549/2013. Although they do not contest their classification, by the referring court, in the category of ‘non-market NPIs’within the meaningofparagraphs 3.31 and 20.29 of Annex A to Regulation No 549/2013, the parties in the main proceedings disagree, however, as to whether or not the associations at issue are controlled by government.
26 If they are, the NPI, as a non-market producer, will be classified in the general government sector whereas, if they are not, it will be classified in the NPISH sector. That classification method is apparent in particular from the combined reading of paragraphs 1.35, 2.130, 3.31, 20.05 and 20.13 of Annex A to Regulation No 549/2013 (see, to that effect, judgment 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 34).
27 The general concept of ‘control’is defined in a similar way inparagraphs 1.36, 20.15, 20.18, 20.306 and 20.309 of Annex A to Regulation No 549/2013 as the power or ability to determine the general policy, strategy or programme of a unit or entity. Paragraph 20.309 of that annex, in the section of Chapter 20 thereof dealing with the public sector, which covers, inter alia, general government and the units or entities controlled by it, mentions nine general indicators of control for determining whether a resident unit may be regarded as being controlled by government for the purposes of its classification in the general government sector. However, under paragraph 20.310 of the annex, some of those indicators may not be relevant to the individual case (judgment of 11 September 2019,FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 35).
28 Paragraph 20.15 of Annex A to Regulation No 549/2013 is specifically concerned with the question of government control of NPIs and sets out five indicators of control to be taken into account when determining whether an NPI is controlled by government. Those five indicators are also reproduced in paragraph 2.39 of Annex A to Regulation No 549/2013, subject to some drafting variations depending on the language version. It must be found that, since paragraphs 2.39 and 20.15 of that annex deal with the same issue and pursue the same objective, namely to set out the indicators of control applicable to NPIs, they must, despite the variations in their wording, receive a common interpretation and be regarded as forming one and the same provision (see, to that effect, judgment of 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 37).
29 Furthermore, since paragraph 20.309 of Annex A to Regulation No 549/2013 defines the concept of ‘control’for the purposes of delimiting the public sector in general, and since the single provision ofparagraphs 2.39 and 20.15 defines that concept with a view to distinguishing NPIs falling within the public sector from those which do not, those two definitions also pursue the same aim and may therefore be applied, in the case of NPIs, to the same entities. It must therefore be found that those two provisions are complementary and, as such, should be applied together and in a uniform manner when determining whether a unit falls within the public or private sector and, therefore, in the case of an NPI, whether it falls within the general government sector, in accordance with the combined provisions of paragraphs 3.31 and 20.13 of Annex A to Regulation No 549/2013,or whether it is an NPISH (judgment of 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 38).
30 In the present case, in order to determine whether the associations at issue are controlled by government, the referring court, emphasising that the criterion of financing does not in itself make it possible to establish control, has opted to ask the Court only about the interpretation of paragraph 20.309(h) of Annex A to Regulation No 549/2013 and about the issue of whether the series of rights and tasks which the national legislature has entrusted to the French Community is to be regarded as ‘control via excessive regulation’, within the meaning of that provision.
31 Under that provision, ‘when regulation is so tight that it effectively dictates the general policy of the business, it is a form of control’, The Court has stated that that provision is part of the indicator of control relating to ‘the provisions of enabling instruments’or ‘other provisions of the enabling instrument, such as the obligations in the statute of the NPI’, referred to, respectively, inparagraphs 2.39(b) and 20.15(b) of Annex A to Regulation No 549/2013, since that indicator corresponds to the various examples mentioned in paragraph 20.309(a) to (c) and (g) to (i) of that annex (judgment of 11 September 2019,FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 64).
32 Furthermore, the Court has held that it is apparent from paragraph 20.309 (h) of Annex A to Regulation No 549/2013 that regulatory involvement which, irrespective of whether it is general or extensive in nature, is intrusive enough to determine, de facto, the general policy or programme of a unit or of all units working in the same activity may be indicative of control (see to that effect, judgment of 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 48).
33 It must be observed that the concept of ‘ability to determine the general policy or programme’of an NPI, within the meaning ofthe first sentence of paragraph 20.15 of Annex A to Regulation 549/2013, has been defined by the Court as referring to the ability of government to exert, on a lasting and continuous basis, an actual and substantial influence over the very determination and implementation of the objectives of the NPI, its activities and the operating aspects of those activities, as well as the strategic approaches and guidelines which the NPI is to follow when pursuing those activities (judgment of 11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 90).
34 However, in view of the complementarity between the provisions of paragraphs 20.15 and 20.309 of Annex A to Regulation No 549/2013, pointed out in paragraphs 28 and 29 of the present judgment, that interpretation of the first sentence of paragraph 20.15 of Annex A to Regulation No 549/2013 must, as the European Commission rightly states in its written observations, also be applied, by analogy, to the interpretation of the second sentence of paragraph 20.309(h) of Annex A to that regulation, which provides that ‘when regulation is so tight that it effectively dictates the general policy of the business, it is a form of control’.
35 Therefore, it must be held that paragraph 20.309(h) of Annex A to Regulation No 549/2013, read togetherwith paragraphs 2.39(b) and 20.15(b) of that annex, is to be interpreted as meaning that national regulations applicable to the NPIs active in the field of education which, although subsidised by the competent national authority, enjoy freedom of education guaranteed by the Constitution, are to be regarded as ‘excessive’within the meaning ofparagraph 20.309(h) of Annex A, where the tasks and rights which those regulations confer on that authority are sufficiently intrusive to determine effectively the general policy or programme of the educational establishments concerned by enabling the exercise, on a lasting and continuous basis, all an actual and substantial influence over the very determination and implementation of the objectives of those units, their activities and their operating aspects, as well as the strategic approaches and guidelines which those units are to follow when pursuing their activities.
36 Therefore it will be for the referring court, which alone has direct knowledge of the dispute in the main proceedings, to conduct the checks necessary, in the light of all the relevant factual and legal circumstances, for ascertaining whether the powers which the French Community has with regard to the associations at issue, through national regulations, are sufficiently intrusive to determine effectively the general policy or programme of the associations at issue, in particular because that authority is entrusted with setting the curricula and content of the courses and, consequently, determining the educational objectives, or rather, whether the effect of those powers is limited, as the associations at issue claim in their written observations, to a simple control exercised a posteriori, which has no decisive impact on the general policy or school or academic program, since it does not concern the specific educational content which leads to the grant of a certificate endorsing the success of a school or academic year.
37 That being so and, in any event, it will be for the referring court to conduct an assessment of all the indicators, including that relating to the degree of financing, given that that assessment is, by definition, in accordance with the last sentence of paragraph 20.15 of Annex A to Regulation No 549/2013, ‘judgemental in nature’(see, to that effect, judgment of11 September 2019,FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraphs 87 and 88). According to paragraph 20.310 of Annex A to that regulation, each classification case needs to be examined on its own merits and some of those indicators may not be relevant to the individual case, while, in other cases, several separate indicators may collectively indicate control. The last sentence of paragraph 2.39 of Annex A and the sixth sentence of paragraph 20.15 of that regulation establish the same principle that, in most cases, it is verification of a series of indicators that is likely to indicate control.
38 In the light of the foregoing considerations, the reply to the first question should be that paragraph 20.309(h) of Annex A to Regulation No 549/2013, read together with paragraph 2.39(b) thereof, must be interpreted as meaning that the concept of ‘excessive regulation’covers national regulations applying to NPIs active in the field of education which, while being subsidised by the competent nationalauthority, enjoy freedom of education guaranteed by the Constitution, where those regulations confer on that authority the task or right: - to approve curricula, - to determine both the structure of education and priority and specific duties, to institute monitoring of the conditions for pupil enrolment and exclusion, decisions of class councils and financial participation, to arrange for schools to be grouped into structured networks and to require educational, teaching and institutional plans to be drawn up and activity reports to be delivered, - to organise checks and inspections relating specifically to subjects taught, academic level and implementation of the language laws, but excluding teaching methods, and - to impose a minimum number of pupils per class, stream, level or other subdivision, unless an exemption is granted by a minister, - in so far as those tasks or rights are sufficiently intrusive to determine effectively the general policy or programme of the NPIs concerned by enabling the exercise on a lasting and continuous basis of an actual and substantial influence over the very determination and implementation of the objectives of those NPIs, their activities and their operating aspects, as well as the strategic approaches and guidelines which those NPIs are to follow when pursuing their activities, which it is for the referring court to ascertain.
39 By its second question, the referring court is asking, in essence, whether the second sentence of paragraph 20.15 of Annex A to Regulation No 549/2013 is to be interpreted as meaning that the concept of ‘general regulations applicable to all units working in the same activity’covers national regulations which constitute a legalregime applicable only to the staff of NPIs active in the field of education which are financed by government.
40 In that regard, it must be observed that the Court has held that that concept must be interpreted as covering any intervention by a public sector unit which enacts or applies rules intended to make all units working in the activity concerned equally and uniformly subject to overarching, broad and abstract rules or general guidance, without such rules being capable, due to their particularly ‘excessive’nature or character, within the meaning ofparagraph 20.309 (h) of Annex A to Regulation No 549/2013, of effectively dictating the general policy or programme of the units working in the activity concerned (judgment of11 September 2019, FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraph 54).
41 The Court has also stated that the aim of the second sentence of paragraph 20.15 of Annex A to Regulation No 549/2013, according to which ‘public intervention in the form of general regulations applicable to all units working in the same activity is irrelevant when deciding whether the government of control over an individual unit’, is to exclude from the concept of ‘control’, within the meaning of that provision, any intervention by public sector unit which is intended to enact or apply rules designed to make all units working in the activity concerned equallyand uniformly subject to overarching, broad and abstract rules of general guidance (see, to that effect, judgment of 11 September 2019,FIG and FISE, C‑612/17 and C‑613/17, EU:C:2019:705, paragraphs 42 and 43).
42 In the present case, it is not disputed that the ‘staff regulations’lay down specific rules applicable to the members of staff of institutions active in the area of education which are financed by government. As the Commission rightly pointed out in its written observations, the rules which apply to subsidised independent education, including the ‘staff regulations’applicable to staff members, do not apply to private schools which do not receive financing from the French Community. Similarly, in their written observations, the associations at issue pointed out that the ‘rule in question’is applicable only to staff whose employment is subsidised. The referring court states that,‘if the activity in question is education itself, it must be noted that some rules laid down by decree apply only to staff in subsidised independent education’.
43 In the present case, the area of subsidised independent education cannot be regarded as a separate area of activity from that of public education or education in general in Belgium. It follows that the specific rules constituting ‘staff regulations’applicable only to staff in subsidised independent education are intended, therefore, not for the whole area of activity of education, but only that part constituted by the subsidised independent network. Therefore, since the rules at issue do not apply to all the units in the same area of activity, namely education, the staff regulations cannot fall within the concept of ‘general rules’, within the meaning of the second sentence ofparagraph 20.15 of Annex A to Regulation No 549/2013.
44 In the light of the foregoing considerations, the answer to the second question isthat the second sentence of paragraph 20.15 of Annex A to Regulation No 549/2013 must be interpreted as meaning that the concept of ‘general regulations applicable to all units working in the same activity’does not cover national regulations which constitute a legalregime applicable only to the staff of NPIs active in the field of education which are financed by government.
45 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.