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JUDGMENT OF THE COURT (Ninth Chamber)
4 June 2015 ( *1 )
‛Reference for a preliminary ruling — Directive 2000/13/EC — Labelling and presentation of foodstuffs — Articles 2(1)(a)(i) and 3(1)(2) — Labelling such as could mislead the purchaser as to the composition of foodstuffs — List of ingredients — Use of the indication ‘raspberry and vanilla adventure’ and of depictions of raspberries and vanilla flowers on the packaging of a fruit tea not containing those ingredients’
In Case C‑195/14,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany), made by decision of 26 February 2014, received at the Court on 18 April 2014, in the proceedings
Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale — Bundesverband e.V.
v
Teekanne GmbH & Co. KG,
THE COURT (Ninth Chamber),
composed of K. Jürimäe, President of the Chamber, M. Safjan (Rapporteur) and A. Prechal, Judges,
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
—
the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e.V., by J. Kummer and P. Wassermann, Rechtsanwälte,
—
Teekanne GmbH & Co. KG, by A. Meyer, Rechtsanwalt,
—
the Polish Government, by B. Majczyna, acting as Agent,
—
the Portuguese Government, by L. Inez Fernandes and C. Madaleno, acting as Agents,
—
the European Commission, by S. Grünheid and K. Herbout-Borczak, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
This request for a preliminary ruling concerns the interpretation of Articles 2(1)(a)(i) and 3(1)(2) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29), as amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009 (OJ 2009 L 188, p. 14, ‘Directive 2000/13’).
The request has been made in proceedings between the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e.V. (the Federal Union of Consumer Organisations and Associations, ‘the BVV’) and Teekanne GmbH & Co. KG (‘Teekanne’) concerning the allegedly misleading nature of the labelling of a foodstuff.
Legal context
European Union ( ‘EU ’) law
Directive 2000/13
Directive 2000/13 was repealed with effect from 13 December 2014, pursuant to Article 53(1) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18). However, having regard to the date of the facts of the dispute in the main proceedings, that dispute is still governed by Directive 2000/13.
Under recitals 6, 8 and 14 in the preamble to Directive 2000/13:
‘(6)
The prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer.
...
(8)
Detailed labelling, in particular giving the exact nature and characteristics of the product which enables the consumer to make his choice in full knowledge of the facts, is the most appropriate since it creates fewest obstacles to free trade.
...
(14)
The rules on labelling should also prohibit the use of information that would mislead the purchaser ... To be effective, this prohibition should also apply to the presentation and advertising of foodstuffs.’
Article 1(1) and (3)(a) of that directive states:
‘1. This Directive concerns the labelling of foodstuffs to be delivered as such to the ultimate consumer and certain aspects relating to the presentation and advertising thereof.
...
3. For the purpose of this Directive,
(a)
“labelling” shall mean any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such foodstuff.’
Article 2(1)(a)(i) of that directive provides:
‘The labelling and methods used must not:
(a)
be such as could mislead the purchaser to a material degree, particularly:
(i)
as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production; …’
Article 3(1) of Directive 2000/13 provides:
‘In accordance with Articles 4 to 17 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the labelling of foodstuffs:
(1)
the name under which the product is sold;
(2)
the list of ingredients;
...’
Article 6 of that directive is worded as follows:
‘1. Ingredients shall be listed in accordance with this Article and Annexes I, II, III and IIIa.
...
(a)
“Ingredient” shall mean any substance, including additives and enzymes, used in the manufacture or preparation of a foodstuff and still present in the finished product, even if in altered form.
...
5. The list of ingredients shall include all the ingredients of the foodstuff, in descending order of weight, as recorded at the time of their use in the manufacture of the foodstuff. It shall appear preceded by a suitable heading which includes the word “ingredients”.
...
6. Ingredients shall be designated by their specific name, where applicable, in accordance with the rules laid down in Article 5.
However:
...
—
flavourings shall be designated in accordance with Annex III,
…
7. Community provisions or, where there are none, national provisions may lay down that the name under which a specific foodstuff is sold is to be accompanied by mention of a particular ingredient or ingredients.
...’
Regulation (EC) No 178/2002
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), provides in Article 8 thereof, entitled ‘Protection of consumers’ interests’:
‘1. Food law shall aim at the protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume. It shall aim at the prevention of:
(a)
fraudulent or deceptive practices;
(b)
the adulteration of food; and
(c)
any other practices which may mislead the consumer.’
Article 16 of that regulation provides:
‘Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers’.
German Law
Paragraph 4(11) of the German Law against unfair competition (Gesetz gegen den unlauteren Wettbewerb), in the version applicable to the dispute in the main proceedings (BGBl. 2010 I, p. 254) (‘the UWG’) provides:
‘Examples of unfair commercial practices
A person shall be regarded as acting unfairly in particular where he
...
11.
infringes a statutory provision that is also intended to regulate market behaviour in the interests of market participants’.
Paragraph 5(1)(1) of the UWG provides:
‘Misleading commercial practices’
(1)
A person shall be regarded as acting unfairly where he uses a misleading commercial practice. A commercial practice shall be deemed to be misleading if it contains untruthful information or other information which could mislead, regarding the following circumstances:
1.
the essential characteristics of the goods or services, such as availability, nature, execution, benefits, risks, composition, accessories, method or date of manufacture, delivery or provision, fitness for purpose, uses, quantity, specification, after-sale customer assistance, complaint handling, geographical or commercial origin, the results to be expected from their use, or the results or material features of tests carried out on the goods or services.’
Paragraph 11, headed ‘Protection against misleading practices’, in the German Code on foodstuffs, consumer items and animal feed (Lebensmittel- Bedarfsgegenstände- und Futtermittelgesetzbuch), in the version applicable to the case in the main action (‘the LFGB’), provides:
‘It shall be prohibited to sell foodstuffs under names, indications or presentations liable to mislead and, in general or in individual cases, to advertise those foodstuffs by means of misleading representations or other statements. The following in particular are misleading:
1.
in the case of a foodstuff, the use of names, indications, presentations, representations or other statements concerning characteristics, in particular those concerning the type, condition, composition, amount, perishability, place of manufacture, origin, or method of manufacture or derivation, which are liable to mislead;
...’
The dispute in the main proceedings and the question referred for a preliminary ruling
It is apparent from the order for reference that Teekanne markets a fruit tea under the name ‘Felix Himbeer-Vanille Abenteuer’ (‘Felix raspberry and vanilla adventure’) (‘the fruit tea’). The packaging for that tea comprises a foldable carton in the form of a parallelepiped, containing 20 bags.
That packaging comprises a number of elements of various sizes, colour and font, in particular (i) depictions of raspberries and vanilla flowers, (ii) the indications ‘Früchtetee mit natürlichen aromen’ (‘fruit tea with natural flavourings’) and ‘Früchtetee mit natürlichen aromen – Himbeer-Vanille-Geschmack’ (‘fruit tea with natural flavourings – raspberry-vanilla taste’) and (iii) a seal with the indication ‘nur natürliche Zutaten’ (‘only natural ingredients’) inside a golden circle.
The referring court found that the fruit tea does not in fact contain any vanilla or raspberry constituents or flavourings. The list of ingredients, which is on one side of the packaging, is as follows: ‘Hibiscus, apple, sweet blackberry leaves, orange peel, rosehip, natural flavouring with a taste of vanilla, lemon peel, natural flavouring with a taste of raspberry, blackberries, strawberry, blueberry, elderberry’.
The BVV brought an action against Teekanne before the Landgericht Düsseldorf (Regional Court, Düsseldorf), submitting that the items on the fruit tea’s packaging misled the consumer with regard to the tea’s contents. The BVV argues that because of those items, the consumer expects the tea to contain vanilla and raspberry or at least natural vanilla flavouring and natural raspberry flavouring.
Consequently, the BVV claimed that the Landgericht Düsseldorf should order Teekanne, on pain of specified penalties, to desist from advertising, or causing to be advertised, the fruit tea in the course of business. In addition, the BVV sought reimbursement of the costs of the letter of formal notice which it had sent, amounting to EUR 200.
By judgment of 16 March 2012, the Landgericht Düsseldorf upheld that action.
Teekanne lodged an appeal and the Oberlandesgericht Düsseldorf (the Higher Regional Court, Düsseldorf) set aside that judgment by judgment of 19 February 2013 and dismissed the BVV’s application. That court held that there had been no misleading of the consumer either within the meaning of Paragraph 4(11) of the UWG, in conjunction with Paragraph 11(1), second sentence, point 1, of the LFGB, or as provided for in Paragraph 5(1), first sentence and second sentence, point 1, of the UWG.
The Oberlandesgericht Düsseldorf found that, in accordance with Directive 2000/13, those provisions of the UWG and the LFGB were to be interpreted by reference to the expectations of the average consumer. In the present case, it was clear from the fruit tea’s list of ingredients, printed on the packaging, that the natural flavourings used have the taste of raspberry or vanilla. That list thus expresses, in a manner free from doubt, the fact that the flavourings used are not obtained from vanilla and raspberries but only taste like them. In accordance with the case-law of the Court of Justice, correct and complete information provided by the list of ingredients on packaging constitutes sufficient grounds on which to rule out the existence of any misleading of consumers.
The BVV brought an appeal on a point of law against that judgment before the Bundesgerichtshof (the Federal Court of Justice).
The referring court states that the repeated eye-catching depiction of raspberries and vanilla flowers on the fruit tea’s packaging, the similarly repeated indication ‘mit natürlichen Aromen’ (‘with natural flavourings’) and the depiction of a seal featuring the words ‘nur natürliche Zutaten’ (‘only natural ingredients’) suggest that the taste of that tea is in part determined by flavours obtained from raspberries and vanilla flowers. The fruit tea is therefore presented in such a way as to be capable, even in the case of a reasonably well-informed and reasonably observant and circumspect consumer, of creating a false impression as to its composition. The presentation of the fruit tea is also such as to dissuade the consumer from taking note of the list of ingredients (reproduced — in much smaller print — on the product packaging), which sets out the true state of affairs.
The referring court considers that, in the light of recitals 6 and 8 in the preamble to Directive 2000/13, the labelling of the fruit tea and methods used are such as could mislead the purchaser within the meaning of Article 2(1)(a)(i) of that directive.
In those circumstances, the Bundesgerichtshof decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is it permissible for the labelling, presentation and advertising of foodstuffs to give the impression, by means of their appearance, description or pictorial representation, that a particular ingredient is present, even though that ingredient is not in fact present and this is apparent solely from the list of ingredients provided for under Article 3(1)(2) of Directive 2000/13/EC?’
The question referred for a preliminary ruling
By its question, the referring court asks, in essence, whether Articles 2(1)(a)(i) and 3(1)(2) of Directive 2000/13 must be interpreted as precluding the labelling of a foodstuff and methods used for the labelling from giving the impression, by means of the appearance, description or pictorial representation of a particular ingredient, that that ingredient is present, even though it is not in fact present and this is apparent solely from the list of ingredients on the foodstuff’s packaging.
In the present case, first, the fruit tea’s packaging includes, in particular, depictions of raspberries and vanilla flowers, the indications ‘Früchtetee mit natürlichen aromen’ (‘fruit tea with natural flavourings’) and ‘Früchtetee mit natürlichen aromen – Himbeer-Vanille-Geschmack’ (‘fruit tea with natural flavourings – raspberry-vanilla taste’) as well as a seal with the indication ‘nur natürliche Zutaten’ (‘only natural ingredients’).
Secondly, according to the list of ingredients on one side of the packaging, as provided for in Article 3(1)(2) of Directive 2000/13, which is agreed to be correct and complete, that tea contains natural flavourings with the ‘taste of vanilla’ and ‘taste of raspberry’. It is therefore established that the tea does not contain natural ingredients from vanilla or raspberry or flavouring obtained from them.
In the main proceedings, the question is therefore whether the labelling of the fruit tea is such as could mislead the purchaser inasmuch as it gives the impression that it contains raspberry and vanilla-flower or flavourings obtained from those ingredients, even though such constituents or flavourings are not present in that tea.
As stated in recitals 6 and 8 of Directive 2000/13, the prime consideration of that directive is the need to inform and protect the consumer, with the detailed labelling, in particular giving the exact nature and characteristics of the goods, therefore having to enable the consumer to make his choice in full knowledge of the facts.
In that regard, Article 2(1)(a)(i) of Directive 2000/13 provides, echoing recital 14 of that directive, that the labelling and methods used must not be such as could mislead the purchaser, particularly as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production.
Consequently, Article 2(1)(a)(i) requires that the consumer have correct, neutral and objective information that does not mislead him (see, to that effect, judgment in Commission v Italy, C‑47/09, EU:C:2010:714, paragraph 37).
It must be added that, as set out in Article 16 of Regulation No 178/2002, without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, must not mislead consumers.
Although Directive 2000/13 is a more specific provision of food law, within the meaning of Article 16 of Regulation No 178/2002, Article 16 of that regulation, read in conjunction with Article 8 thereof, restates that the labelling of food cannot mislead.
So far as concerns a reply to the referring court, it must be recalled that, as a general rule, it is not for the Court of Justice, pursuant to the division of jurisdiction between the EU Courts and national courts, to rule on the question whether the labelling of certain products is likely to mislead the purchaser or consumer or to determine whether a sales description is potentially misleading. That task is for the national court. When giving a preliminary ruling on a reference, however, the Court of Justice may, in appropriate cases, give further clarification as guidance to the national court in its decision (see, in particular, judgments in Geffroy, C‑366/98, EU:C:2000:430, paragraphs 18 to 20, and Severi, C‑446/07, EU:C:2009:530, paragraph 60).
In order to assess the capacity of labelling to mislead, the national court must in essence take account of the presumed expectations, in light of that labelling, which an average consumer who is reasonably well informed, and reasonably observant and circumspect has, as to the origin, provenance, and quality associated with the foodstuff, the critical point being that the consumer must not be misled and must not be induced to believe, incorrectly, that the product has an origin, provenance or quality which are other than genuine (see, to that effect, judgment in Severi, C‑446/07, EU:C:2009:530, paragraph 61 and the case-law cited).
In that regard, it is apparent from the case-law that the Court has acknowledged that consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is required by Article 3(1)(2) of Directive 2000/13 (see, to that effect, judgments in Commission v Germany, C‑51/94, EU:C:1995:352, paragraph 34, and Darbo, C‑465/98, EU:C:2000:184, paragraph 22).
However, the fact that the list of ingredients is displayed on the packaging of the goods at issue in the main proceedings does not in itself exclude the possibility that the labelling of those goods and methods used for it may be such as to mislead the purchaser within the meaning of Article 2(1)(a)(i) of Directive 2000/13.
The labelling, as defined in Article 1(3)(a) of that directive, is composed of any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging. Some of those items may in practice be misleading, erroneous, ambiguous, contradictory or incomprehensible.
In that case, the list of ingredients, even though correct and comprehensive, may in some situations not be capable of correcting sufficiently the consumer’s erroneous or misleading impression concerning the characteristics of a foodstuff that stems from the other items comprising its labelling.
Therefore, where the labelling of a foodstuff and methods used for the labelling, taken as a whole, give the impression that a particular ingredient is present in that foodstuff, even though that ingredient is not in fact present, such labelling is such as could mislead the purchaser as to the characteristics of the foodstuff.
In the event, it is for the referring court to carry out an overall examination of the various items comprising the fruit tea’s labelling in order to determine whether an average consumer who is reasonably well informed, and reasonably observant and circumspect, may be misled as to the presence of raspberry and vanilla-flower or flavourings obtained from those ingredients.
In the context of that examination, the referring court must in particular take into account the words and depictions used as well as the location, size, colour, font, language, syntax and punctuation of the various elements on the fruit tea’s packaging.
In the light of the foregoing considerations, the answer to the question referred is that Articles 2(1)(a)(i) and 3(1)(2) of Directive 2000/13 must be interpreted as precluding the labelling of a foodstuff and methods used for the labelling from giving the impression, by means of the appearance, description or pictorial representation of a particular ingredient, that that ingredient is present, even though it is not in fact present and this is apparent solely from the list of ingredients on the foodstuff’s packaging.
Costs
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.
On those grounds, the Court (Ninth Chamber) hereby rules:
Articles 2(1)(a)(i) and 3(1)(2) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, as amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009, must be interpreted as precluding the labelling of a foodstuff and methods used for the labelling from giving the impression, by means of the appearance, description or pictorial representation of a particular ingredient, that that ingredient is present, even though it is not in fact present and this is apparent solely from the list of ingredients on the foodstuff’s packaging.
[Signatures]
( *1 ) Language of the case: German. |
JUDGMENT OF THE COURT (Seventh Chamber)
3 September 2015 ( *1 )
‛Reference for a preliminary ruling — Approximation of laws — Cosmetic products — Consumer protection — Regulation (EC) No 1223/2009 — Scope — Non-corrective colour contact lenses featuring designs — Statement on the outer packaging describing the product in question as a cosmetic product — Consumer protection’
In Case C‑321/14,
REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Krefeld (Germany), made by decisions of 4 June and 4 August 2014, received at the Court on 4 July and 11 August 2014 respectively, in the proceedings
Colena AG
v
Karnevalservice Bastian GmbH,
THE COURT (Seventh Chamber),
composed of J.-C. Bonichot, President of the Chamber, A. Arabadjiev and C. Lycourgos (Rapporteur), Judges,
Advocate General: N. Jääskinen,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
—
Karnevalservice Bastian GmbH, by C. Ballke, Rechtsanwalt,
—
the Czech Government, by M. Smolek and S. Šindelková, acting as Agents,
—
the French Government, by F. Gloaguen and D. Colas, acting as Agents,
—
the European Commission, by G. Wilms and P. Mihaylova, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
This request for a preliminary ruling concerns the interpretation of Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ 2009 L 342, p. 59).
The request has been made in proceedings between Colena AG (‘Colena’) and Karnevalservice Bastian GmbH (‘Karnevalservice’) concerning the marketing by the latter of non-corrective colour contact lenses featuring designs (‘the lenses at issue’).
EU law
Recital 6 in the preamble to Regulation No 1223/2009 reads as follows:
‘This Regulation relates only to cosmetic products and not to medicinal products, medical devices or biocidal products. The delimitation follows in particular from the detailed definition of cosmetic products, which refers both to their areas of application and to the purposes of their use.’
Recital 7 in the preamble to that regulation states as follows:
‘The assessment whether a product is a cosmetic product has to be made on the basis of a case by case assessment, taking into account all characteristics of the product. …’
Article 1 of Regulation No 1223/2009, entitled ‘Scope and objective ‘, provides as follows:
‘This Regulation establishes rules to be complied with by any cosmetic product made available on the market, in order to ensure the functioning of the internal market and a high level of protection of human health.’
Article 2 of Regulation No 1223/2009, entitled ‘Definitions’, provides in paragraph 1 thereof as follows:
‘For the purposes of this Regulation, the following definitions shall apply:
(a)
“cosmetic product” means any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours;
(b)
“substance” means a chemical element and its compounds in the natural state or obtained by any manufacturing process, including any additive necessary to preserve its stability and any impurity deriving from the process used but excluding any solvent which may be separated without affecting the stability of the substance or changing its composition;
(c)
“mixture” means a mixture or solution composed of two or more substances;
…’
Under the heading ‘Labelling’, Article 19 of Regulation No 1223/2009 provides in paragraph 1 thereof, in essence, that cosmetic products are to be made available on the market only where the container and packaging of such products provide various items of information in indelible, easily legible and visible lettering, including the name or registered name and the address of the responsible person, the nominal content at the time of packaging, the date until which the cosmetic product, stored under appropriate conditions, will continue to fulfil its initial function, particular precautions to be observed in use, the batch number of manufacture or the reference for identifying the cosmetic product and a list of ingredients.
The dispute in the main proceedings and the questions referred for a preliminary ruling
Karnevalservice markets the lenses at issue in Germany. The purpose of those products is not to remedy any kind of visual deficiency but, rather, to alter the user’s appearance, especially on festive occasions. The outer packaging of the lenses at issue includes the following information: ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’.
On 24 October 2013, Colena brought proceedings before the Landgericht Krefeld (Regional Court, Krefeld) for an injunction to prevent Karnevalservice marketing the lenses at issue unless the packaging of the lenses provided certain information required under Article 19(1) of Regulation No 1223/2009. By decisions of 29 October 2013 and 11 December 2013, that court refused to grant the injunction, holding that the lenses at issue could not be classified as ‘cosmetic products’ within the meaning of that regulation and, as a consequence, the regulation was not applicable.
Colena brought an appeal against that decision before the Oberlandesgericht Düsseldorf (Düsseldorf Higher Regional Court). By decision of 9 January 2014, that court reversed the decision of the Landgericht Krefeld and granted the injunction sought, finding that, notwithstanding the fact that the lenses at issue could not be classified as ‘cosmetic products’ within the meaning of Regulation No 1223/2009, they must none the less be subject to the provisions of that regulation, in view of the statement on the outer packaging of the lenses that they are a ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’, which will give to the ‘average consumer, who is reasonably well informed and reasonably observant and circumspect’ for the purpose of German law, the impression that the product is in fact a cosmetic product within the meaning of the regulation.
On 30 January 2014, Karnevalservice challenged the injunction before the referring court, which is required to decide whether the injunction granted by the Oberlandesgericht Düsseldorf is justified.
In the order for reference, the referring court expresses the view that the answer to the question whether a product which is not a cosmetic product within the meaning of Regulation No 1223/2009 must none the less satisfy the requirements laid down in that regulation because its packaging contains a statement describing it as a cosmetic product ‘subject to the EU Cosmetics Regulation’ is crucial to the resolution of the dispute before it. The decision given on appeal by the Oberlandesgericht Düsseldorf, reversing the conflicting decision of the referring court, and the existence of conflicting decisions by the Landgericht Essen (Regional Court, Essen) reflect the uncertainty that exists in national case-law concerning the scope of Regulation No 1223/2009.
Moreover, the referring court observes that conflicting judicial decisions exist in Germany concerning whether contact lenses such as those at issue in the main proceedings are covered by Regulation No 1223/2009. That court considers that the answer to that question is also crucial for the purpose of the decision in the case before it.
In those circumstances, the Landgericht Krefeld decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Must Regulation No 1223/2009 be interpreted as meaning that a product which does not come under Regulation No 1223/2009 must none the less comply with the requirements of that regulation solely by reason of a statement on the outer packaging that the product is a “cosmetic eye accessory, subject to the EU Cosmetics Directive”?
(2)
Must Regulation No 1223/2009 be interpreted as meaning that “non-corrective contact lenses featuring designs” come within the scope of that regulation?’
Consideration of the questions referred
By its questions, which it is appropriate to examine together, the Landgericht Krefeld seeks to ascertain, in essence, whether Regulation No 1223/2009 must be interpreted as meaning that the contact lenses at issue fall within the scope of that regulation on the ground either that they satisfy the requirements laid down for so doing or, if that is not the case, that their outer packaging bears the statement ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’.
In order to determine whether a product falls within the scope of Regulation No 1223/2009, it is necessary to refer to Article 1 of the regulation, which provides that its objective is to establish rules to be complied with by ‘any cosmetic product made available on the market’. That article is supplemented by a definition of ‘cosmetic products’ in Article 2(1)(a) of the regulation.
It follows from a combined reading of those two provisions that Regulation No 1223/2009 is applicable to all products which satisfy the definition given in Article 2(1)(a) of the regulation, and only those products. By stating that the objective of the regulation is to establish a regulatory framework applicable to all cosmetic products, Article 1 limits the scope of the regulation to such products alone, and the detailed definition of ‘cosmetic product’ subsequently given in Article 2 of the regulation makes that limitation clear.
That conclusion is confirmed by recital 6 of Regulation No 1223/2009, which, while specifically making a distinction between cosmetic products on the one hand and medicinal products, medical devices or biocidal products on the other, states that the regulation relates ‘only to cosmetic products’.
It is therefore necessary to examine whether the lenses at issue meet all the criteria set out in the definition of ‘cosmetic product’ in Article 2(1)(a) of Regulation No 1223/2009. As is apparent from that provision, that definition is based on three cumulative criteria: (i) the nature of the product in question (substance or mixture); (ii) the part of the human body with which it is intended to be placed in contact; and (iii) the purpose of its use.
With regard to the first criterion, relating to the nature of the product in question, Article 2(1)(b) of Regulation No 1223/2009 defines ‘substance’ as ‘a chemical element and its compounds in the natural state or obtained by any manufacturing process, including any additive necessary to preserve its stability and any impurity deriving from the process used but excluding any solvent which may be separated without affecting the stability of the substance or changing its composition’. Article 2(1)(c) of the regulation states that the word ‘mixture’ means ‘a mixture or solution composed of two or more substances’. In the light of the objective characteristics of the lenses at issue, on the basis of which they may be classified as ‘objects’, they cannot be regarded as a ‘substance’ or a ‘mixture’ within the meaning of that provision.
With regard to the second criterion, Article 2(1)(a) of Regulation No 1223/2009 sets out, in the definition of ‘cosmetic product’, the parts of the human body with which such a product is intended to be placed in contact. It gives an exhaustive list, as is abundantly clear from the detailed, precise wording of that provision, and from the fact that the EU legislature refrained in the drafting of that provision from adding any terms such as ‘as’, ‘for example’, ‘including’ or ‘etc.’, which would have indicated that the items listed were given merely by way of example. The lenses at issue are placed on the eye’s cornea, which is not referred to in that exhaustive list and does not appear in any other provision of Regulation No 1223/2009. It follows that the lenses at issue do not satisfy the second criterion.
With regard to the third criterion, which relates to the purpose of using the product, it should be noted that, as the function of the lenses at issue is to change the appearance of the eye’s cornea, on which they are placed, their sole or main function is not to clean, perfume, change the appearance of, protect or keep in good condition any of the parts of the body listed in Article 2(1)(a) of Regulation No 1223/2009, or to correct body odours. Accordingly, the third criterion is not met.
It follows from an assessment which, in accordance with recital 7 of Regulation No 1223/2009, takes into account all the characteristics of the lenses at issue, that such lenses do not satisfy any of the three cumulative criteria that need to be met in order to fall within the definition of ‘cosmetic product’ in Article 2(1)(a) of the regulation. Accordingly, the Court finds that the lenses at issue cannot be classified as ‘cosmetic products’ as defined in that regulation and therefore fall outside the scope of the regulation.
That conclusion is not affected by the fact that it is stated on the outer packaging of the lenses at issue that they are a ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’.
Unlike the choice made by the EU legislature for other products, in particular medicinal products, the definition in Article 2(1)(a) of Regulation No 1223/2009 does not contain a category of cosmetic products defined by reference to their ‘presentation’, whereby it is possible to categorise a product as a ‘cosmetic product’ as a matter of law for the sole reason that it is presented as such.
That assessment is, however, without prejudice to the application, where appropriate, of rules enabling the competent authorities to verify whether or not the statement on the outer packaging of the lenses at issue that the product is a ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’ constitutes misleading commercial practice.
In the light of the foregoing considerations, the answer to the questions referred is that Regulation No 1223/2009 must be interpreted as meaning that the lenses at issue do not fall within the scope of that regulation, notwithstanding the fact that their outer packaging bears the statement ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’.
Costs
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.
On those grounds, the Court (Seventh Chamber) hereby rules:
Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products must be interpreted as meaning that non-corrective colour contact lenses featuring designs do not fall within the scope of that regulation, notwithstanding the fact that their outer packaging bears the statement ‘cosmetic eye accessory, subject to the EU Cosmetics Directive’.
[Signatures]
( *1 ) Language of the case: German. |
JUDGMENT OF THE COURT (Third Chamber)
28 January 2016 ( *1 )
‛Reference for a preliminary ruling — Articles 49 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — Judgment of the Court of Justice which declared the national rules on licences for the collection of bets incompatible with EU law — Reorganisation of the system by way of a new call for tenders — Free-of-charge transfer of the rights to use tangible and intangible assets owned by licensees and which constitute their network for the management and collection of bets. — Restriction — Overriding reasons in the public interest — Proportionality’
In Case C‑375/14,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale di Frosinone (District Court, Frosinone, Italy), made by decision of 9 July 2014, received at the Court on 6 August 2014, in criminal proceedings against
Rosanna Laezza,
THE COURT (Third Chamber),
composed of M. Ilešič, President of the Second Chamber, acting as President of the Third Chamber, A. Arabadjiev, C. Toader (Rapporteur), E. Jarašiūnas and C.G. Fernlund, Judges,
Advocate General: N. Wahl,
Registrar: V. Giacobbo-Peyronnel, Administrator,
having regard to the written procedure and further to the hearing on 17 September 2015,
after considering the observations submitted on behalf of:
—
Ms R. Laezza, by D. Agnello, R. Jacchia, A. Terranova, F. Ferraro and M. Mura, avvocati,
—
the Italian Government, by G. Palmieri, acting as Agent, and P. Marrone and S. Fiorentino, avvocati dello Stato,
—
the Belgian Government, by J. Van Holm, L. Van den Broeck and M. Jacobs, acting as Agents, and P. Vlaemminck, B. Van Vooren and R. Verbeke, advocaten,
—
the European Commission, by E. Montaguti and H. Tserepa-Lacombe, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 26 November 2015,
gives the following
Judgment
This request for a preliminary ruling concerns the interpretation of Articles 49 TFEU and 56 TFEU.
The request has been made in criminal proceedings brought against Ms Laezza for failing to comply with the Italian legislation governing the collection of bets.
Legal context
Article 10(9g) and (9h) of Decree-Law No 16 laying down urgent measures related to fiscal simplification, improving effectiveness and reinforcing monitoring procedures (decreto-legge — Disposizioni urgenti in material di semplificazioni tributarie, di efficientamento e potenziamento delle procedure di accertamento) of 2 March 2012 (GURI No 52 of 2 March 2012) converted, after amendment, into statute by Law No 44 of 26 April 2012 (Ordinary Supplement to the GURI No 99 of 28 April 2012) (‘Decree-Law 2012’), provides:
‘(9g) As part of a reform of the legislation relating to public gambling, including that relating to the collection of bets on sporting events, including horse racing, and non-sporting events, the provisions of the present paragraph have the aim of promoting that reorganisation, through an initial alignment of the expiry dates of the licences for the collection of bets in question, while observing the requirement that the national rules on the selection of persons who, on behalf of the State, collect bets on sporting events, including horse racing, and non-sporting events, are adjusted to the principles laid down by the judgment of 16 February 2012 in [Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80)].To that end, in view of the impending expiry of a group of licences for the collection of those bets, the Independent Authority for the Administration of State Monopolies [now the Customs and Monopolies Agency, Agenia delle dogane e dei Monopoli, ‘the CMA’] shall immediately, or in any event by 31 July 2012 at the latest, launch a call for tenders for the selection of persons who are to collect such bets with due regard, at the very least, to the following criteria:
(a)
the possibility of participation for persons already carrying out an activity related to the collection of bets in one of the States of the European Economic Area, as a result of having their legal and operational seat there, on the basis of a valid and effective authorisation issued under the provisions in force in the law of that State and who fulfil the requirements as to reputation, reliability and financial capacity specified by the [CMA], account being taken of the provisions in this matter referred to in Law No 220 [laying down provisions for drawing up the annual and multiannual budget of the State (Stability Law 2011) (legge n. 220 — Disposizioni per la formazione del bilancio annual e pluriennale dello State [legge di stabilita’ 2011) of 13 December 2010 (Ordinary Supplement to the GURI No 297 of 21 December 2010), as amended by Law No 111 of 15 July 2011 (‘the Stability Law 2011’)] and by Decree-Law No 98 of 6 July 2011, converted, after amendment, into statute by Law No 111 of 15 July 2011;
(b)
the award of a licence, expiring on 30 June 2016, for the collection, exclusively in a physical network, of bets on sporting events, including horse racing, and non-sporting events, from agencies, up to a maximum of 2000, whose sole activity is the marketing of public gambling products, without restriction as to the minimum distances between those agencies or with respect to other collection points, which are already active, for identical bets;
(c)
provision, as a price component, for a basic contract value of EUR 11000 for each agency;
(d)
the conclusion of a licence agreement whose content is consistent with any other principle laid down by the above-mentioned judgment of the Court of Justice of the European Union of 16 February 2012 and with the compatible national provisions in force regarding public gambling;
(e)
the possibility of managing agencies in any municipality or province, without numerical limits on a territorial basis or more favourable conditions compared to licensees who are already authorised to collect identical bets or which may, in any event, be favourable to those licensees;
(f)
the lodging of deposits consistent with the provisions of Article 24 of Decree-Law No 98 of 6 July 2011, converted, after amendment, into statute by Law No 111 of 15 July 2011.
(9h) The licensees who are to collect bets referred to in paragraph 9g, whose contracts expire on 30 June 2012, shall continue their collection activities until the date of the conclusion of the licence contracts awarded in accordance with the above paragraph.’
On the basis of the provisions of Decree-Law 2012 cited above, licences of 40 months were issued, whereas licenses issued previously had been for a period of between 9 and 12 years.
Under Article 1(77) of the Stability Law 2011:
‘In order to ensure a correct balance between public and private interests in the context of the organisation and management of public gaming, in view of the State monopoly in respect of gaming … and of the principles, of the European Union also, with regard to competitive selection, which apply in that sector, and by contributing also to consolidating the bases for improved efficiency and effectiveness of action to combat the spread of irregular or illegal gambling in Italy, for the protection of consumers, in particular minors, for maintaining public order, for discouraging gambling by minors and combating infiltration by organised crime into the betting and gaming sector … [the CMA] shall take steps without delay to update the standard formula for an agreement giving access to licences for operating and collecting public bets, but not remotely, or at any event by means of a physical network.’
According to Article 1(78)(b)(26) of the Stability Law 2011, the licence agreement must contain a clause providing for ‘the transfer free of charge or the devolution of the infrastructure network for the management and collection of bets to the [CMA] on expiry of the term of the licence, exclusively at the prior request of the latter, communicated at least six months before such expiry, or communicated on the occasion of the decision to revoke or terminate the licence.’
The draft licence agreement, annexed to the call for tenders organised in 2012 (‘the draft agreement’), sets out the grounds for revocation and termination of licences.
Thus, according to Article 23(2)(a), (e) and (k) of the draft agreement, licences may be revoked or terminated, inter alia, if there is a reference to a court for offences that the CMA regards as proving the lack of reliability, professionalism and moral quality required of licensees, in cases in which public bets are organised, operated and collected according to rules and techniques that differ from those laid down by the laws, regulations and agreements in force, or in the case of infringements established by the competent bodies which lay down the rules for the control of betting and gaming.
Article 25 of the draft agreement provides:
‘1. At the express request of the CMA, and during the period prescribed by that authority, the licensee shall undertake to transfer free of charge at the time of the cessation of business owing to the expiry of the final term of the licence or as a result of measures revoking or terminating that licence, to the CMA (or to another licensee chosen by that authority following a competitive tendering procedure) the rights to use the tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, free from the rights and claims of third parties, pursuant to the rules set out in the following paragraphs.
2. The assets forming the subject of the transfer shall be designated in the inventory and its subsequent amendments, according to the provisions of Article 5(1)(e).
3. The transfer operations — which shall take place inter partes between the CMA and the licensee, with appropriate written records being made — shall begin in the six-month period preceding the expiry of the term of the agreement, preserving, during that period, the requirement not to impair the functioning of the system since the assets shall be transferred to the CMA under conditions ensuring continuity of the operation of the electronic communication games network. The costs of any physical transfer of equipment, fittings or any other component of the electronic communication network shall be the licensee’s responsibility.
…’
The dispute in the main proceedings and the question referred for a preliminary ruling
Stanley International Betting Ltd, a company incorporated in the United Kingdom and its Maltese subsidiary Stanleybet Malta Ltd, are engaged in the collection of bets in Italy, through operators known as ‘data transmission centres’ (‘DTCs’). For about 15 years, DTC owners have carried on their activities in Italy on the contractual basis of a mandate, without any licence or police authorisation.
A check carried out on 5 June 2014 by the Customs and Financial Police (Guardia di Finanza) in Frosinone (Italy) at the premises of a DTC managed by Ms Laezza and affiliated to Stanleybet Malta Ltd, which brought to light the unauthorised collection of bets at that centre, resulted in the seizure of certain computer equipment which had been used for receiving and transmitting those bets.
By decision of 10 June 2014, the judge responsible for preliminary investigations at the Tribunale di Cassino (District Court, Cassino) validated that seizure and issued a preventive attachment order with respect to that equipment.
Before the referring court, Ms Laezza lodged an application seeking to have that decision set aside. In that application, Ms Laezza also referred to the action brought by the companies of the Stanley Group, to which the DTC she manages is affiliated, against the call for tenders organised on the basis of Article 10(9g) and (9h) of Decree-Law 2012 for the award of gaming licences in Italy, on the ground that it is discriminatory.
The referring court observes that the Consiglio di Stato (Council of State) has already referred two questions to the Court of Justice for a preliminary ruling concerning, inter alia, the shorter period of validity of the new licences as compared with the old licences in the case which gave rise to the judgment in Stanley International Betting and Stanleybet Malta (C‑463/13, EU:C:2015:25), but considers that EU law does not preclude the national provision which lays down that period of validity.
However, the referring court points out that Article 25 of the draft agreement imposes the obligation on licensees to transfer free of charge, at the time of the cessation of the business owing to the expiry of the licence or as a result of measures revoking or terminating that licence, the rights to use tangible and intangible assets which they own and which constitute their network for the management and collection of bets.
According to that court, although the existence of such a provision, which is without legislative precedent in Italy, may be justified in terms of imposing a penalty, where the cessation of business results from a decision revoking or terminating the licence, it appears especially disadvantageous where the cessation of business occurs solely as a result of the expiry of the licence period. In addition the licensee is obliged to bear all the costs of the free-of-charge transfer.
The referring court doubts that such a difference in treatment between old and new licensees can be justified by an overriding reason in the public interest.
In those circumstances, the Tribunale di Frosinone (District Court, Frosinone) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
The question referred for a preliminary ruling
By its question, the referring court asks essentially whether Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they preclude a national provision, such as that at issue in the main proceedings, which makes it compulsory for licensees to transfer free of charge, at the time of the cessation of business as a result of the expiry of the licence period or as a result of measures revoking or terminating that licence, the rights to use tangible and intangible assets which they own and which constitute their network for the management and collection of bets.
As a preliminary point, it should be made clear, as the Advocate General observed in points 27 and 28 of his Opinion, that the present case is concerned only with the compatibility with EU law of Article 25 of the draft agreement, and cannot be regarded as being intended to call into question, in its entirety, the new licensing system put in place in Italy in 2012 in the betting and gaming sector.
The existence of a restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU
In the first place, it must be recalled that all measures which prohibit, impede or render less attractive the exercise of the freedoms guaranteed by Articles 49 TFEU and 56 TFEU must be regarded as restrictions on the freedom of establishment and/or the freedom to provide services (judgment in Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 45 and the case-law cited).
The Court has already ruled that legislation of a Member State which makes the exercise of an economic activity subject to a licensing requirement and which specifies situations in which the licence is to be withdrawn, constitutes an obstacle to the freedoms thus guaranteed by Articles 49 TFEU and 56 TFEU (judgment in Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 46 and the case-law cited).
In the present case, as the Advocate General noted in points 62 and 63 of his Opinion, a national provision, such as that at issue in the main proceedings, which requires the licensee to transfer free of charge the rights to use equipment for the collection of bets at the time of the cessation of business, including the situation in which the cessation of business is due solely to the expiry of the final term of the licence, may render the exercise of that activity less attractive. The risk that an undertaking may have to transfer, without financial consideration, the rights to use the assets in its possession may prevent it from obtaining a return on its investment.
Therefore, it must be held that the national provision at issue in the main proceedings constitutes a restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU.
The alleged discriminatory nature of the restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU
In the second place, although the Court has already recognised a certain number of overriding reasons in the public interest which may justify a restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU, those objectives cannot be relied upon to justify discriminatory restrictions (see, to that effect, judgment in Blanco and Fabretti, C‑344/13 and C‑367/13, EU:C:2014:2311, paragraph 37).
If the restrictive provision at issue in the main proceedings is discriminatory, it may be justified only on the grounds of public interest, public safety or public health, laid down in Articles 51 TFEU and 52 TFEU, which do not include combatting criminality linked to betting and gaming or ensuring the continuity of the lawful activity of collecting bets relied on in the present case (see, by analogy, judgment in Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 36 and the case-law cited).
In that connection, Ms Laezza submits that the provision at issue in the main proceedings is discriminatory as it establishes a difference in treatment between operators having obtained a licence at the time of the call for tenders organised on the basis of Article 10(9g) and (9h) of Decree-Law 2012, on one hand, and operators having obtained a licence at the time of the previous calls for tender, on the other hand, since the latter were able to benefit, before possibly being required to transfer free of charge the rights to use equipment for collecting bets on the expiry of the licence, from a longer writing-off period in respect of that equipment.
However, as the Advocate General observes in essence in points 66 and 67 of his Opinion, it seems clear from the evidence submitted to the Court that the measure at issue in the main proceedings applies without distinction to all the operators who have taken part in the call for tenders launched in 2012 on the basis of Article 10(9g) and (9h) of Decree-Law 2012, irrespective of their place of establishment.
Thus, the fact that the Italian authorities decided, at a given moment, to change the conditions under which all authorised operators carry on their business of collecting bets in Italy does not appear relevant for the determination of whether the provision at issue in the main proceedings is discriminatory.
However, it is for the national court to determine, after an overall examination of all the circumstances surrounding the new tender procedure, whether that provision is discriminatory.
The justification for the restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU
Thirdly, it must be determined whether the restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU, constituted by the provision at issue in the main proceedings, may be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 51 TFEU and Article 52 TFEU, which are also applicable in the area of freedom to provide services by virtue of Article 62 TFEU or, if the referring court finds that that provision is applied in a non-discriminatory manner, whether it is justified by overriding reasons in the public interest (see, to that effect, judgment in Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 22 and the case-law cited), such as consumer protection and the prevention of both fraud and incitement to squander money on gambling (judgment in HIT and HIT LARIX.C‑176/11, EU:C:2012:454, paragraph 21 and the case-law cited).
In that connection, as regards the Italian legislation relating to betting and gambling, the Court has held previously that the objective of combating criminality linked to betting and gambling is capable of justifying restrictions on fundamental freedoms under those rules (see, to that effect, judgment in Biasci and Others, C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 23).
In the present case, the Italian Government submits that the provision at issue in the main proceedings is justified, as part of the objective of combating criminality linked to betting and gambling, by the interest in ensuring the continuation of the lawful activity of collecting bets in order to curb the growth of parallel illegal activities.
Such an objective may be a reason of overriding public interest capable of justifying a restriction on fundamental freedoms, such as that at issue in the main proceedings.
In any event, the identification of the objectives in fact pursued by the national legislation is within the jurisdiction of the referring court (see, to that effect, judgment in Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 47).
The proportionality of the restriction on freedoms guaranteed by Articles 49 TFEU and 56 TFEU
Fourthly, it must be determined whether the restriction at issue in the main proceedings is suitable for ensuring the attainment of the objective pursued and does not go beyond what is necessary in order to achieve that objective, given that such restrictive national legislation fulfils that condition only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgment in HIT and HIT LARIX.C‑176/11, EU:C:2012:454, paragraph 22 and the case-law cited).
In that connection, it should be recalled that it is for the referring court, taking account of the indications given by the Court of Justice, to verify, in an overall assessment of the circumstances surrounding the grant of the new licences, whether the restrictions imposed by the Member State concerned satisfy the conditions laid down in the Court’s case-law concerning their proportionality (see, to that effect, judgment in Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 40 and the case-law cited).
Regarding the question whether the restriction at issue in the main proceedings is suitable to ensure the attainment of the objective pursued, the referring court must examine, inter alia, as the Advocate General observed in points 91 to 93 of his Opinion, whether the fact that the transfer free of charge to the CMA or to another licensee of the rights to use tangible and intangible assets owned by the licensee and which constitute his network for the management and collection of bets is not imposed systematically, but only ‘[a]t the express request of the CMA’, affects the ability of the provision at issue in the main proceedings to attain the objective pursued.
As far as concerns the question whether that provision goes further than is necessary in order to attain the objective pursued, it is conceivable that, in the case of expiry or revocation of the licence agreement concerned as a penalty, the free of charge transfer to the CMA or to another licensee of the rights to use tangible and intangible assets which constitute the network for the management and collection of bets is proportionate.
By contrast, that is not necessarily the case, as the Advocate General noted in point 88 of his Opinion, where the cessation of business occurs solely because the licence expires.
In the case where the licence agreement, which was concluded for a substantially shorter period than that of agreements concluded before the adoption of Decree-Law 2012 reaches its set expiry date, the fact that such a compulsory transfer is free of charge seems to be contrary to the requirement of proportionality, particularly where the objective of continuity of the authorised activity of the collection of bets could be attained by less restrictive measures, such as a compulsory transfer, but in return for payment of the market price of the assets concerned.
Thus, as the Advocate General observed, in points 96 and 97 of his Opinion, in the examination of the proportionality of the provision at issue in the main proceedings, the referring court must also take account of the market value of the assets which are the subject of the compulsory transfer.
Moreover, it must be underlined that the lack of transparency of the provision at issue in the main proceedings is likely to undermine the principle of legal certainty. That provision, which provides that the transfer free of charge of the rights to use assets which constitute the network for the management and collection of bets is not imposed systematically, but only ‘[a]t the express request of the CMA’, does not specify the conditions and detailed rules pursuant to which such an express request must be made. The conditions and detailed rules of a call for tenders, such as that at issue in the main proceedings, must be drawn up in a clear, precise and unequivocal manner (see, to that effect, judgment in Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 92 and the operative part).
Having regard to all of those considerations, the answer to the question referred is that Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.
Costs
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.
On those grounds, the Court (Third Chamber) hereby rules:
Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.
[Signatures]
( *1 ) Language of the case: Italian. |
ORDER OF THE COURT (Seventh Chamber) 1 December 2015 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Action for damages — Restrictive measures against certain persons and entities in view of the situation in Zimbabwe — Removal of the person in question from the list of persons and entities concerned — Compensation for the damage allegedly suffered) In Case C‑545/14 P, APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 November 2014, Aguy Clement Georgias, residing in Harare (Zimbabwe),
Trinity Engineering (Private) Ltd, established in Harare,
Georgiadis Trucking (Private) Ltd, established in Harare,
represented by H. Mercer, QC, and I. Quirk, Barrister, appellants, the other parties to the proceedings being: Council of the European Union, represented by G. Étienne and B. Driessen, acting as Agents,
and European Commission, represented by S. Bartelt and M. Konstantinidis, acting as Agents,
defendants at first instance, THE COURT (Seventh Chamber), composed of C. Toader, President of the Chamber, A. Rosas (Rapporteur) and A. Prechal, Judges, Advocate General: M. Wathelet, Registrar: A. Calot Escobar, having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following Order 1 By their appeal, Mr Georgias, Trinity Engineering (Private) Ltd and Georgiadis Trucking (Private) Ltd seek to have set aside the judgment of the General Court of the European Union of 18 September 2014 in Georgias and Others v Council and Commission (T‑168/12, EU:T:2014:781) (‘the judgment under appeal’), by which that court dismissed their action seeking compensation for the damage they claim they suffered as a result of the adoption of Commission Regulation (EC) No 412/2007 of 16 April 2007 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2007 L 101, p. 6).
Background to the dispute 2 Recitals 1 to 4 in the preamble to Council Common Position 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1) are worded as follows:
‘(1) On 28 January 2002, the Council expressed its serious concern about the situation in Zimbabwe, in particular the recent escalation of violence and intimidation of political opponents and the harassment of the independent press. It noted that the Government of Zimbabwe has not taken effective measures to improve the situation as called for by the European Council in Laeken last December.
(2) The Council further expressed serious concern about recent legislation in Zimbabwe which, if enforced, would seriously infringe on the right to freedom of speech, assembly and association, mainly the Public Order and Security Act and the General Laws Amendment Act (both of which violate the norms and standards for free and fair elections as agreed by [Southern African Development Community (SADC)] Parliamentarians in March 2001) and the proposed legislation to regulate the media.
(3) Therefore, the [European Union] decided it will close the consultations conducted under Article 96 of the ACP-EC Partnership Agreement and implement targeted sanctions if:
– the Government of Zimbabwe prevents the deployment of an EU election observation mission starting by 3 February 2002, or if it later prevents the mission from operating effectively, or
– the Government of Zimbabwe prevents the international media from having free access to cover the election, or – there is a serious deterioration on the ground, in terms of a worsening of the human rights’ situation or attacks on the opposition, or
– the election is assessed as not being free and fair. (4) The Council has assessed that the Government of Zimbabwe continues to engage in serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly. Therefore, for as long as the violations occur, the Council deems it necessary to introduce restrictive measures against the Government of Zimbabwe and those who bear a wide responsibility for such violations.’
3 By Articles 3 and 4 of Common Position 2002/145, the Council imposed a travel ban within the territory of the European Union and a measure freezing the funds of the persons listed in the annex to that common position ‘who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’. Listed in that annex are, inter alia, the names of the President of the Republic of Zimbabwe, the President of the Parliament, nine Ministers, Secretaries, Generals and a number of senior civil servants.
4 By Council Common Position 2002/600/CFSP of 22 July 2002 amending Common Position 2002/145 (OJ 2002 L 195, p. 1), approximately 50 further persons were added to the list of persons subject to restrictive measures. These were Ministers, Ministers of State, Secretaries, Deputy Ministers, Deputy Secretaries and the wife of the President of the Republic of Zimbabwe.
5 Following a government reshuffle in Zimbabwe, that list was replaced by the list in the annex to Council Decision 2002/754/CFSP of 13 September 2004 implementing Common Position 2002/145 (OJ 2002 L 247, p. 56). That list included 79 persons, including 23 Ministers, 12 Deputy Ministers, 23 Secretaries or Deputy Secretaries and various other political figures and military officers.
6 By Council Common Position 2003/115/CFSP of 18 February 2003 amending and extending Common Position 2002/145 (OJ 2003 L 46, p. 30), Common Position 2002/145 was extended for a period of 12 months.
7 Following the adoption of each of the common positions and decisions referred to above, the Council adopted a regulation providing, inter alia, for the freezing of the funds of the persons on the list annexed to the regulation, which was drawn up in accordance with the lists annexed to those common positions and decisions.
8 Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66) provided for the renewal of the restrictive measures introduced by Common Position 2002/145.
9 Recitals 2, 6 and 7 in the preamble to Common Position 2004/161 are worded as follows:
‘(2) By Common Position [2002/14] the Council also imposed a travel ban and a freezing of funds on the Government of Zimbabwe and persons who bear a wide responsibility for serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly.
… (6) In view of the continued deterioration in the human rights situation in Zimbabwe, the restrictive measures adopted by the European Union should be renewed for a further 12 months.
(7) The objective of these restrictive measures is to encourage the persons targeted to reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance.’
10 Article 4(1) of Common Position 2004/161 provides as follows:
‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of the natural persons listed in the Annex, who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.’
11 Article 5(1) of Common Position 2004/161 is worded as follows:
‘All funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in the Annex shall be frozen.’
12 Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, as stated in recital 5 in the preamble thereto, in order to implement the restrictive measures laid down by Common Position 2004/161.
13 Recital 2 in the preamble to that regulation reads as follows:
‘The Council continues to consider that the Government of Zimbabwe is still engaging in serious violations of human rights. Therefore, for as long as the violations occur, the Council deems it necessary to maintain restrictive measures against the Government of Zimbabwe and those who bear prime responsibility for such violations.’
14 Article 6(1) of Regulation No 314/2004 provides as follows:
‘All funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III shall be frozen.’
15 Mr Georgias is a Zimbabwean businessman. He is the owner and chief executive of Trinity Engineering (Private) Ltd. Georgiadis Trucking (Private) Ltd is a subsidiary of that company. Mr Georgias is also chief executive of Georgiadis Trucking (Private) Ltd.
16 On 29 November 2005, Mr Georgias was appointed a non-constituency Senator by the President of the Republic of Zimbabwe. On 6 February 2007, the President of the Republic of Zimbabwe appointed Mr Georgias Deputy Minister for Economic Planning and Development.
17 Council Decision 2007/235/CFSP of 16 April 2007 implementing Common Position 2004/161 (OJ 2007 L 101, p. 14) amended the annex to the latter to include, inter alia, the following entry as regards Mr Georgias: ‘Georgias, Aguy; [Deputy] Minister for Economic Development, born 22. 6. 1935’. The Commission adopted, on the same day, Regulation (EC) No 412/2007, which amended Annex III to Regulation No 314/2007. The annex thus amended includes, inter alia, an entry in relation to Mr Georgias which has the same wording as the original entry.
18 On 25 May 2007, Mr Georgias arrived at Heathrow Airport (United Kingdom) with a view to visiting family living in that Member State and then, on the following day, to taking a flight to New York (United States). He was refused leave to enter the United Kingdom or transit through United Kingdom airports on his way to New York. He was compelled to spend the night detained in Heathrow Airport and to take a return flight to Harare (Zimbabwe) the following day.
19 Council Decision 2007/455/CFSP of 25 June 2007 implementing Common Position 2004/161 (OJ 2007 L 172, p. 89) again amended the annex to that common position. The following sentence was added to the entry relating to Mr Georgias set out in paragraph 17 above:
‘Member of the Government and as such engaged in activities that seriously undermine democracy, respect for human rights and the rule of law’.
20 Commission Regulation (EC) No 777/2007 of 2 July 2007 amending Regulation No 314/2004 (OJ 2007 L 173, p. 3) amended Annex III to Regulation No 314/2004 once more. Mr Georgias remained listed with, now, an entry worded in the same terms as those set out in the preceding paragraph.
21 Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6) repealed Common Position 2004/161. That decision laid down, against the persons who were listed in the annex thereto, restrictive measures comparable to those laid down by Common Position 2004/161. However, Mr Georgias was not listed in that annex. Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Regulation No 314/2004 (OJ 2011 L 49, p. 23), which was adopted subsequently, replaced Annex III to the latter regulation with a new annex in which Mr Georgias was again not listed.
The judgment under appeal 22 Mr Georgias and the two companies owned by him brought an action for damages before the General Court seeking compensation for the damage caused to Mr Georgias as a result of his detention at Heathrow Airport, namely reimbursement in respect of, first, the medical costs incurred by him as a result of the deterioration in his state of health due to the ‘personal stress’ caused by the restrictive measures adopted against him and, second, the legal fees incurred by him, as well as compensation for the business losses suffered by the two companies because of the alleged ‘extraterritorial effects’ of Regulation No 314/2004, which led some of their business partners no longer to trade with them.
23 With regard to the damage arising from Mr Georgias’ detention at Heathrow Airport, the General Court considered that the immediate cause of the damage claimed was a decision of the competent United Kingdom authorities, which was taken in the exercise of those authorities’ sovereign powers, namely powers relating to controlling the entry of citizens of third countries to the territory of that Member State. Accordingly, only between that decision and the damage claimed by Mr Georgias can there be said to be a definite and direct causal nexus. It follows that, even if it is the measure freezing Mr Georgias’ assets which led the United Kingdom authorities to adopt that decision, the damage allegedly suffered is not a sufficiently direct consequence of that measure.
24 As regards the other heads of damage, the applicants put forward four pleas in law in support of their claim before the General Court, namely: (i) manifest error of assessment; (ii) insufficient statement of reasons in the contested regulations; (iii) misuse of powers; and (iv) breach of the rights of defence. The General Court rejected each of those pleas and dismissed the action.
Forms of order sought by the parties 25 The appellants claim that the Court should:
– set aside the judgment of the General Court in its entirety; – grant the relief sought by the appellants in the proceedings before the General Court, namely that: – the European Union, the Commission and/or the Council should make good the damage caused to the appellants by paying them compensation, such compensation to be determined by the General Court;
– if, and to the extent that the Court finds it necessary, there shall be an inquiry into the amount of damages suffered by the appellants, such inquiry to be supervised by the General Court; and
– the Council and/or the Commission shall pay the appellants’ costs; – in the alternative, the case be referred back to the General Court; and – in any event, the Council and the Commission be ordered to pay the appellants’ costs. 26 The Council contends that the Court should:
– dismiss the appeal as unfounded; and – order the appellants to pay the costs. 27 The Commission contends that the Court should:
– dismiss the fourth ground of appeal as inadmissible; – dismiss the first three grounds of the appeal as manifestly unfounded; and – order the appellants to pay the costs. The appeal 28 Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
29 That provision should be applied in the present case.
The first three grounds of appeal 30 By the first three grounds of appeal, which it is appropriate to examine together, the appellants take issue with the General Court’s interpretation of the legislation at issue and the conclusion drawn by the General Court from that interpretation, namely that it was possible for Mr Georgias to be listed in Annex III to Regulation No 314/2004 on the sole basis of his status as Member of the Government, without there being any need to prove that his activities had seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe.
31 By their first ground of appeal, the appellants submit that the General Court was incorrect not to take account of Article 4 of Common Position 2004/161, which states that the persons listed in the annex thereto were also engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. By their second ground of appeal, the appellants maintain that the General Court erred in its interpretation of Article 5(1) of Common Position 2004/161 and, as a result, misapplied Regulation No 314/2004. By their third ground of appeal, the appellants claim that, at paragraph 58 of the judgment under appeal, the General Court misinterpreted the addition of the words ‘as such’ to Senator Georgias’ listing in Annex III to that regulation, by taking the view that the addition was a ‘mere clarification’ of the fact that status as member of the government was sufficient justification in itself for the person concerned to be included in the list in that annex.
32 The appellants essentially claim that Article 6(1) of Regulation No 314/2004 — which provides that funds belonging to individual members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them are to be frozen — must be interpreted not only in the light of Article 5(1) of Common Position 2004/161, which provides for the freezing of such funds in accordance with the same general criteria, but also in the light of Article 4(1) of Common Position 2004/161, under which Member States are to take the necessary measures to prevent the entry into, or transit through, their territories of the natural persons listed in the annex to that common position, who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. In the appellants’ submission, the persons and entities concerned, who are on a single list, should satisfy the criteria laid down by the various relevant provisions and, in particular, fulfil the requirement that they have undermined democracy, respect for human rights and the rule of law in Zimbabwe.
33 In that regard, it should be noted that that argument is based on the assumption that the general criteria for inclusion on the lists at issue require, with regard to Members of the Government of the Republic of Zimbabwe, not only that their status be established by specific evidence but also the fact that they have undermined democracy, respect for human rights and the rule of law in Zimbabwe. However, that assumption is at odds with the wording of Regulation No 314/2004 and the interpretation of that regulation in the light of not only Common Position 2004/161 but also of the historical context in which the provisions were adopted by the European Union, Regulation No 314/2004 being one such provision.
34 Both Article 5(1) of Common Position 2004/161 and Article 6(1) of Regulation No 314/2004 provide that funds belonging to individual members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them are to be frozen. The terms of those provisions are clear and there is nothing to indicate that they are to be interpreted as meaning that, as regards the members of that government, not only must their status be established by specific evidence but also the fact that they have seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe.
35 On the contrary, the grounds for the restrictive measures adopted against the Government of the Republic of Zimbabwe are clear from the common positions and decisions taken under the common foreign and security policy since 2002. It is apparent in particular from recital 4 in the preamble to Common Position 2002/145 that the Council had established that that government continued to engage in serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly and that, as a consequence, for as long as the violations occurred, it was necessary to impose restrictive measures on that government and those who bore a wide responsibility for such violations.
36 In recital 6 in the preamble to Common Position 2004/161, the Council stated that, in view of the continued deterioration in the human rights situation in Zimbabwe, the restrictive measures adopted by the European Union should be renewed and, in recital 7 thereto, that the objective of those restrictive measures was to encourage the persons targeted to reject policies that led to the suppression of human rights, of the freedom of expression and of good governance.
37 Recital 2 in the preamble to Regulation No 314/2004 states that the Council continued to consider that the Government of the Republic of Zimbabwe was still engaging in serious violations of human rights. Therefore, for as long as the violations occurred, the Council deemed it necessary to maintain restrictive measures against that government and those who bore prime responsibility for such violations.
38 An examination of the lists of persons who were subject to those restrictive measures shows that those lists are composed of political figures or persons holding positions such as President, Vice President, Minister, Deputy Minister, Secretary, Provincial Governor, Army Officer or Police Commissioner.
39 It is clear from both recital 7 in the preamble to Common Position 2004/161 and recital 2 in the preamble to Regulation No 314/2004 that the Council’s objective was to adopt restrictive measures targeted at members of the Government of the Republic of Zimbabwe and other persons holding key positions who were likely to influence the policy of that State and thereby exert pressure on those persons to reject policies that undermine human rights, freedom of expression and good governance.
40 Article 5(1) of Common Position 2004/161 and Article 6(1) of Regulation No 314/2004 must therefore be interpreted as meaning that the natural persons associated with members of the Government of the Republic of Zimbabwe are precisely those who, according to Article 4 of that common position, are referred to in the annex thereto as also being engaged, in the same way as the members of that government, in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.
41 As the General Court observed in paragraph 51 of the judgment under appeal, Regulation No 314/2004 was adopted on the base of Articles 60 EC and 301 EC. Article 60(1) EC provides that ‘[i]f, in the cases envisaged in Article 301 [EC], action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301 [EC], take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned’. For its part, Article 301 EC provides that ‘[w]here it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty [EU, in the version prior to the Treaty of Lisbon] relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures’.
42 According to the Court’s case-law, having regard to the wording of Articles 60 EC and 301 EC, in particular the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may include the rulers of such countries and also individuals and entities associated with or controlled, directly or indirectly, by them (judgments in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 166, and Tay Za v Council, C‑376/10 P, EU:C:2012:138, paragraph 53).
43 However, the question raised by the first three grounds of appeal does not relate to whether the Council was entitled to include on the lists at issue persons who were not Members of the Government of the Republic of Zimbabwe but who held key positions within that State unless it could be shown, by means of sufficient evidence, that those persons had personally undermined democracy, respect for human rights and the rule of law in Zimbabwe.
44 Indeed, Mr Georgias takes issue with the General Court in this appeal for endorsing the Council’s decision not to apply the criteria laid down in Articles 4 and 5 of Common Position 2004/161 cumulatively for the purpose of justifying the listing of a person in Annex III to Regulation No 314/2004.
45 It is not disputed that Mr Georgias was a Member of the Government of the Republic of Zimbabwe. In that capacity, he was a leading member of a third country to whom restrictive measures based on Article 60 EC and 301 EC could be applied, in accordance with the case-law cited in paragraph 42 above.
46 As indicated in paragraphs 39 and 40 above, the Council’s objective was to adopt restrictive measures targeted at Members of the Government of the Republic of Zimbabwe and other persons associated with those members performing important functions on the ground that, by carrying out those functions, those persons contributed to the undermining of democracy, respect for human rights and the rule of law in Zimbabwe.
47 It follows from all the foregoing that the General Court did not err in law in finding, in paragraph 57 of the judgment under appeal, that the Council intended to freeze the assets of Members of the Government of the Republic of Zimbabwe on the sole basis of their status as members of that government, and, in paragraph 58 of that judgment, that the phrase ‘as such’ is a mere clarification.
48 Consequently, the first three grounds of appeal must be rejected as manifestly unfounded.
The fourth ground of appeal 49 By their fourth ground of appeal, the appellants maintain that the General Court erred in law in finding that Mr Georgias had not explained what arguments and evidence he would have relied on and how that evidence would have lead to his removal from the annex in question earlier if he had been given the opportunity to be heard. By that ground of appeal, Mr Georgias takes issue with paragraph 108 of the judgment under appeal.
50 Mr Georgias argued before the General Court that there had been a breach of his rights of defence, since Common Position 2004/161 provided for constant and regular review of the maintenance of sanctions against him. First, he was not informed of the reasons and relevant evidence which justified renewal of the restrictive measures imposed on him; second, he was not given an opportunity to request a review of those measures; and, third, there was no evidence that a review of his situation had in fact taken place.
51 At paragraph 106 of the judgment under appeal, the General Court referred to the established case-law of the Court of Justice to the effect that, in the context of an action for annulment, before an infringement of the rights of the defence can result in the annulment of the act at issue, it must be demonstrated that, had it not been for that irregularity, the outcome of the procedure might have been different (judgment in Belgium v Commission, C‑142/87, EU:C:1990:125, paragraph 48, and order in Kish Glass v Commission, C‑241/00 P, EU:C:2001:556, paragraph 36).
52 The General Court observed, at paragraph 107 of the judgment under appeal, that, in a case in which the applicant seeks, by means of an action for damages, compensation for the damage which he claims to have suffered because of the adoption of an act or the extension of its validity, in breach of his rights of defence, and where that party has not brought an action for annulment of the act concerned, the claim of an alleged breach of his rights of defence is not by itself sufficient to establish that his action for damages is well founded. It is also necessary to explain, according to the General Court, what arguments and evidence the person concerned would have relied on if his rights of defence had been respected and to demonstrate, where appropriate, that such arguments and evidence might have led in his case to a different result — in other words, in this case and as regards Mr Georgias, to the restrictive measure at issue, the freezing of his assets, not being renewed.
53 The General Court found, in paragraph 108 of the judgment under appeal, that ‘in this case, the applicants have not met that requirement’ and that ‘[t]hey do not explain, in their written pleadings, what arguments and evidence [Mr Georgias] would have relied on if he had been heard before each annual renewal of the validity of Common Position 2004/161 and how such arguments and evidence would have led in his case to a different result, namely the removal, on a date earlier than 15 February 2011, of his name from the list of persons subject to a freezing of their assets’.
54 By their fourth ground of appeal, the appellants maintain that, when restrictive measures are due for renewal, the Council is required to grant the person concerned the opportunity properly to make known his views. In the submission of the appellants, the case-law cited in paragraph 106 of the judgment under appeal requires ‘an exercise in speculation’ where the Council has failed in its fundamental obligation to abide by the rights of defence, so that Mr Georgias is not required to prove that he would have been removed from the lists.
55 It should, however, be noted that the case-law cited by the General Court in paragraph 106 of the judgment under appeal is established case-law of the Court of Justice (see, inter alia, the judgment in Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 and the case-law cited) and that the General Court did not err in law in referring to that case-law.
56 The appellants also argue that the submissions made before the General Court establish that the inclusion of Mr Georgias on the list at issue was unlawful and that he had proven that, if he had been given the opportunity to put forward his arguments, he would have been removed from the list because, when he approached the Council for that purpose, he was immediately removed from the list.
57 It must be noted in that regard that the fact that it may be established that the inclusion on that list was unlawful does not prove that the requirements laid down by the case-law cited in paragraphs 51 and 55 above are met.
58 With regard to the letter sent to the Council by Mr Georgias and the circumstances of his removal from the list at issue, it should be recalled that the General Court addressed that question in paragraphs 115 et seq. of the judgment under appeal. However, Mr Georgias does not take issue with that part of that judgment and simply repeats the argument he put forward at first instance. It follows that, on this point, his argument is inadmissible.
59 It follows from the foregoing considerations that the fourth ground of appeal is in part manifestly inadmissible and in part manifestly unfounded.
60 Accordingly, the appeal must be dismissed.
Costs 61 Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal by virtue of Article 184 of those rules, a decision as to costs is to be given in the order which closes the proceedings.
62 Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
63 Since the Council and the Commission have applied for costs to be awarded against Mr Georgias, Trinity Engineering (Private) Ltd and Georgiadis Trucking (Private) Ltd and the latter have been unsuccessful, they must be ordered, in addition to bearing their own costs, to pay the costs incurred by the Council and the Commission.
On those grounds, the Court (Seventh Chamber) hereby orders: 1. The appeal is dismissed. 2. Mr Aguy Clement Georgias, Trinity Engineering (Private) Ltd and Georgiadis Trucking (Private) Ltd are ordered to bear their own costs and to pay the costs incurred by the Council of the European Union and by the European Commission. [Signatures]
* Language of the case: English. |
OPINION OF ADVOCATE GENERAL
WAHL
delivered on 15 September 2016 ( )
Case C‑524/14 P
European Commission
v
Hansestadt Lübeck
‛Appeal — State aid — Airport charges — Article 108(2) TFEU — Fourth paragraph of Article 263 TFEU — Decision to initiate the formal investigation procedure — Admissibility of an action for annulment — Person individually concerned — Legal interest in bringing proceedings — Article 107(1) TFEU — Selectivity criterion’
1.
By its appeal, the European Commission asks the Court to set aside the judgment of the General Court of the European Union of 9 September 2014, Hansestadt Lübeck v Commission, ( ) by which the General Court partially annulled Commission Decision C(2012) 1012 final ( ) in so far as that decision concerns the schedule of airport charges of Lübeck Airport (Germany) adopted in 2006 (‘the 2006 schedule’) and dismissed the action as to the remainder.
2.
Among the questions raised by this appeal, two deserve particular attention. The first concerns examination of the admissibility of an action brought by a public entity which operates an airport against a decision to initiate the formal investigation procedure in respect, inter alia, of a schedule fixing, for that airport, the amount of the airport charges payable by airlines. The second relates to assessment of the selectivity of a measure consisting of such a schedule.
3.
The case therefore offers, in the very specific context of a decision initiating the formal investigation procedure, the opportunity to specify the scope of the condition that, to be classified as ‘State aid’, the disputed measures at issue must, in particular, as Article 107(1) TFEU expressly requires, ‘[favour] certain undertakings or the production of certain goods’. That condition, commonly known as the ‘selectivity criterion’, is — as Advocate General Wathelet noted in his recent Opinion in Commission v Banco Santander and Santusa, ( ) which admittedly concerned tax measures very different from the measures to which this case relates — one of the most controversial issues in the field of State aid. The explanations which the Court will therefore be prompted to give in this case will help to provide the clarification awaited in the specific context of measures which fix charging rates — such as schedules of airport charges — and are used to finance infrastructure.
I – Background to the proceedings
A – Lübeck Airport
4.
Lübeck Airport is in Germany, in the Land of Schleswig-Holstein.
5.
Until 31 December 2012, it was operated by Flughafen Lübeck GmbH (‘FL’). Up to 30 November 2005, FL was wholly owned by the applicant at first instance, Hansestadt Lübeck (the City of Lübeck). From 1 December 2005 to the end of October 2009, FL was 90% owned by the private New Zealand company Infratil and 10% owned by the City of Lübeck. From November 2009, FL was again wholly owned by the City of Lübeck. On 1 January 2013, Lübeck Airport was sold to Yasmina Flughafenmanagement GmbH, FL being incorporated into the assets of the City of Lübeck and removed from the commercial register on 2 January 2013.
B – The 2006 schedule
6.
Under Paragraph 43a(1) of the Luftverkehrs-Zulassungs-Ordnung (Air Traffic Licensing Rules, ‘the LuftVZO’) of 19 June 1964, ( ) as in force in 2006, before the commencement of the airport’s operation an airport operator had to submit to the supervisory authority for its approval rules governing use and, in respect of the airports, a schedule of charges for the take-off, landing and parking of aircraft as well as for the use of facilities for air passengers.
7.
Pursuant to that provision, FL adopted the 2006 schedule fixing the amount of the airport charges, which was approved by the supervisory authority, namely the aviation authority of the Land of Schleswig-Holstein, and which has applied since 15 June 2006 to all airlines using Lübeck Airport unless an agreement has been concluded between the airport operator and an airline. That schedule lays down a landing charge, a ‘passenger’ charge, a charge for terminal and apron services, a security charge, a charge for exceptional use and a parking charge.
8.
In 2007, the Commission adopted a decision to initiate the formal investigation procedure in relation to a contract concluded between FL and the airline Ryanair which fixed for that airline charges lower than those provided for by the schedule of charges that was in force.
9.
Taking the view, inter alia, that the 2006 schedule could also contain State aid within the meaning of Article 107(1) TFEU, the Commission, by the decision at issue, initiated the formal investigation procedure provided for in Article 108(2) TFEU in respect of various measures concerning Lübeck Airport, including that schedule.
II – Procedure before the General Court and the judgment under appeal
10.
By application lodged at the Registry of the General Court on 19 October 2012, FL brought an action for the annulment of the decision at issue in so far as it initiates the formal investigation procedure in relation to the 2006 schedule (first head of claim) and requires the Federal Republic of Germany to reply to an information injunction in relation to that schedule (second head of claim).
11.
In its reply lodged at the Court Registry on 20 February 2013, the City of Lübeck stated that it was taking the place of FL in order to pursue the action brought by FL.
12.
In support of its first head of claim, the City of Lübeck raised five pleas in law alleging: (i) infringement of the rights of defence of the Federal Republic of Germany, (ii) infringement of the obligation to carry out a diligent and impartial examination, (iii) infringement of Article 108(2) and (3) TFEU and Article 4, Article 6 and Article 13(1) of Regulation (EC) No 659/1999, ( ) (iv) infringement of Article 107(1) TFEU and (v) infringement of the duty to state reasons.
13.
By the judgment under appeal, the General Court held that the first head of claim was admissible on the ground, first, that when the action was brought FL was directly and individually concerned by the decision at issue and therefore had locus standi and, secondly, that FL had retained a legal interest in bringing proceedings after the sale of Lübeck Airport. On the merits of the case, it upheld the fourth plea, in respect of the part alleging infringement of Article 107(1) TFEU with regard just to the selectivity criterion, and, consequently, annulled the decision at issue in so far as it initiates the formal investigation procedure in respect of the 2006 schedule. As regards the second head of claim, since the single plea, alleging infringement of Article 10(3) of Regulation No 659/1999 was rejected as manifestly unfounded, the action was dismissed as to the remainder.
III – Forms of order sought and procedure before the Court
14.
The Commission claims that the Court should:
—
set aside the judgment under appeal;
—
declare the action at first instance inadmissible;
—
in the alternative, declare the action devoid of purpose;
—
also in the alternative, declare that the part of the fourth plea in the action by which the City of Lübeck alleges infringement of Article 107(1) TFEU so far as concerns the selectivity criterion is unfounded, and refer the case back to the General Court as regards the other parts of that plea and the first, second, third and fifth pleas in the action;
—
order the City of Lübeck to pay the costs at first instance and on appeal or, in the alternative, if the case is referred back to the General Court, reserve the decision as to the costs at first instance and on appeal.
15.
The City of Lübeck contends that the Court should:
—
dismiss the appeal in its entirety and uphold the claims that it put forward at first instance in their entirety;
—
order the Commission to pay the costs.
16.
By decisions of the President of the Court of 26 March and 14 April 2015, the Federal Republic of Germany and the Kingdom of Spain were granted leave to intervene in support of the City of Lübeck.
17.
The parties set out their positions in writing and orally at the hearing held on 31 May 2016.
IV – Analysis of the appeal
18.
In support of its appeal, the Commission advances five grounds of appeal. The first two concern the examination of the admissibility of the action at first instance. The third ground of appeal concerns the assessment of the selectivity of the measures at issue. The fourth alleges defects in the reasoning of the judgment under appeal. The fifth alleges that the General Court failed to have regard to the limited nature of judicial review of decisions to initiate the formal investigation procedure in relation to State aid.
A – The first ground of appeal, alleging that FL was not individually concerned by the decision at issue
1. Arguments of the parties
19.
By its first ground of appeal, the Commission criticises the General Court for having held that FL was individually concerned by the decision at issue on the ground that, in granting State aid, it had exercised powers conferred on it alone. By so doing, the General Court erred in law because, under the applicable national law, a schedule of charges must be approved by the supervisory authority of the Land, which is itself bound by the federal legislation on airport charges. Therefore, the fact that the public undertaking which operates the airport is responsible for proposing that schedule does not mean that it, and not the State, has the power itself to decide its management and formulate the policies which it applies by means of that schedule. The General Court’s interpretation of the criterion of individual concern is, in that regard, inconsistent with that contained in the judgment of 10 July 1986, DEFI v Commission. ( )
20.
The City of Lübeck maintains that the General Court did not commit an error of assessment by holding that FL was individually concerned by the decision at issue. It states that, at the time when the action was brought, FL, which was then 90% owned by a private investor, had a power of its own to adopt and implement the 2006 schedule. It notes in particular that the airport operator would be able to apply such a schedule even if it were refused the authorisation provided for in Paragraph 43a(1) of the LuftVZO. The General Court’s conclusion is in accordance with national law and, in any event, cannot be called into question in an appeal.
21.
The Federal Republic of Germany states that in Germany airport charges are fixed, in the exercise of their discretion, by undertakings operating airports, by means of schedules which are implemented by private law contracts concluded with the airlines. The supervisory authority’s approval provided for in Paragraph 43a(1) of the LuftVZO has no ‘constitutive effect’ with regard to the validity of the schedule of airport charges. That provision merely establishes a preventive control — designed to prevent abuse — of the relationship between airport operators and users, in the interests of the proper functioning of air traffic and competition. The Federal Republic of Germany maintains, moreover, that the interests of private-law airport undertakings, such as FL, are separate from the interests of the State and that, unlike the body at issue in the case giving rise to the judgment of 10 July 1986, DEFI v Commission, ( ) those undertakings cannot be regarded as an emanation of the State.
2. Assessment
22.
It is apparent from paragraphs 29 to 34 of the judgment under appeal that the General Court concluded, in essence, that FL was individually concerned by the decision at issue in so far as it relates to the 2006 schedule since it affected a measure of which FL was one of the authors and prevented FL from exercising its own powers as it saw fit. The Court considered that, although, under the applicable national law, in this instance Paragraph 43a(1) of the LuftVZO, the schedule of charges drawn up and proposed by the airport operator had to be approved by the supervisory authority, that authority had no power of its own to determine the airport charges itself.
23.
In that regard, it is well established that the condition of individual concern resulting from the fourth paragraph of Article 263 TFEU is satisfied if the contested measure affects the applicant by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons and by virtue of these factors distinguishes him individually just as in the case of the person addressed. ( )
24.
Natural or legal persons must be regarded as individually concerned by a measure which directly prevents them from exercising their own powers, consisting inter alia in the grant of alleged aid to undertakings, as they see fit ( ) and which brings about a change in contractual relations with the undertaking or undertakings alleged to be the beneficiaries of the measures at issue. ( )
25.
In the present case, it is necessary to determine whether the General Court correctly concluded that, under the relevant national law (Paragraph 43a(1) of the LuftVZO), FL had a power of its own in the adoption and implementation of the 2006 schedule.
26.
In paragraph 29 of the judgment under appeal, the General Court analysed Paragraph 43a(1) of the LuftVZO, which lays down the rules for implementing the 2006 schedule. It deduced in particular that, since the supervisory authority, unlike FL, had no power of its own to fix airport charges, the power to adopt the 2006 schedule lay with FL and not with the State authorities (see paragraph 32 of the judgment under appeal).
27.
Where what is at issue is an interpretation of national law by the General Court, review by the Court of Justice must be limited to establishing that the General Court has not distorted that law. ( )
28.
It is settled case-law that that distortion must be apparent in findings which the documents in the file show to be substantially incorrect, without there being any need for the Court to carry out a new assessment of the facts and the evidence. ( ) In other words, such a distortion must be obvious. ( ) As regards, more specifically, a matter of interpretation of national law, the Court has jurisdiction to examine, first, whether the General Court, on the basis of documentary and other evidence before it, distorted the wording of the national provisions at issue, the tenor of national case-law relating to them or the academic writings concerning them; secondly, whether the General Court, as regards those particulars, made findings that were manifestly inconsistent with their content; and, lastly, whether the General Court, in examining all the particulars, attributed to one of them, for the purpose of establishing the content of the national law at issue, a significance which is not appropriate in the light of the other particulars, where that is manifestly apparent from the documentation in the case-file. ( )
29.
However, in the present case, in spite of the doubts which may be entertained as to whether the airport operator is really autonomous and, accordingly, whether it has an interest of its own, separate from that of the supervisory authority, in maintaining the 2006 schedule, the matters put forward by the Commission to call into question the interpretation of the relevant national law are not sufficient to establish any distortion of the evidence presented before the General Court.
30.
Nor can this conclusion be invalidated by the Commission’s arguments that the assessment made by the General Court in this case is inconsistent with the approach taken in the judgment of 10 July 1986, DEFI v Commission. ( ) Although the facts in DEFI v Commission seem, on the face of it, to have certain similarities with those in the present case, such as the possibility that the supervisory authority may not approve the rules for implementing the measure in question, I think that the present case is set apart by the more limited control exercised by the Land over the fixing of the charging rates proposed by the entity managing the airport, inasmuch as it cannot prevent the application of the 2006 schedule, and by the divergent interests of the supervisory authority, FL and the airport users. In DEFI v Commission, the Court had held that the French Government undeniably had the power to determine DEFI’s management and policies and hence also to define the interests which that organisation was to protect (paragraph 18).
31.
In the light of these considerations, I take the view that the first ground of appeal cannot succeed.
B – The second ground of appeal, alleging that the City of Lübeck had no current legal interest in bringing proceedings
1. Arguments of the parties
32.
By its second ground of appeal, the Commission maintains that the General Court erred in law by holding, first, that FL had an interest in bringing proceedings even after the sale of Lübeck Airport to a private investor (Yasmina Flughafenmanagement GmbH) since the formal investigation procedure had not been closed and the decision at issue therefore continued to produce effects and, secondly, that FL had in any event retained an interest in bringing proceedings in respect of the period prior to the sale. The Commission argues that, even in the absence of a final decision closing the formal investigation procedure, the decision at issue had ceased to produce its sole legal effect, namely the obligation to suspend the aid measure during the investigation, ( ) since no suspension was ordered up until 31 December 2012 and from 1 January 2013, the date on which Lübeck Airport was privatised, the 2006 schedule could no longer be regarded as an aid scheme in the course of implementation because the airport was no longer financed by public funds. The assessment of the General Court is contrary to the case-law according to which the interest must be vested and present and continues to exist only if the action is liable, if successful, to procure an advantage for the party bringing it. The City of Lübeck has indeed not shown that it had any interest in maintaining its action after the privatisation of Lübeck Airport.
33.
The City of Lübeck, supported by the Federal Republic of Germany, submits that FL did in fact have an interest in bringing proceedings at the time when the action was brought, which is the relevant time for assessing the admissibility of the action. It maintains that, on the date on which the action was brought, the adverse effects of the decision at issue consisted in particular in the obligation of suspension owed by FL pursuant to the last sentence of Article 108(3) TFEU. Moreover, the City of Lübeck still has an interest in bringing proceedings since, without the declaration of annulment by the General Court, the decision at issue would continue to produce legal effects adversely affecting it now, after the sale of the airport. It states in particular that national courts would be required, following an application, to order recovery of the alleged advantages. It also considers that, in the absence of a decision concluding that there is no State aid, it is exposed to the risk of repetition of the illegality. Finally, it submits that the annulment of the decision at issue may enable it to prepare an action for damages given that, if a decision had not been taken to initiate the formal investigation procedure, it would have been able to persuade other airlines to use Lübeck Airport, and to obtain, at the time it was sold, a higher price.
2. Assessment
34.
In the present case, it is not disputed by the parties that FL, which the City of Lübeck has replaced, had a vested and current interest at the time when the action against the decision at issue was brought. In this regard, the General Court found, in paragraph 36 of the judgment under appeal, that when the action was brought FL had an interest in bringing proceedings against the decision at issue since it produced binding legal effects such as to affect its own interests.
35.
The Commission does not agree, however, that that interest continued to exist after the sale of Lübeck Airport to a private company. It takes the view that the obligation to suspend implementation of the alleged aid scheme is the only effect of a decision to initiate the formal investigation procedure. Since no such suspension materialised before the sale of Lübeck Airport to a private company, the City of Lübeck’s interest in bringing proceedings disappeared during the proceedings.
36.
In that regard, it should be pointed out that in paragraph 37 of the judgment under appeal the General Court rejected the Commission’s argument that the sale of Lübeck Airport to a private company on 1 January 2013, after the decision at issue had been adopted and the action had been brought before the General Court, put an end to the aid scheme at issue, so that the obligation to suspend that scheme no longer adversely affected the City of Lübeck and the City of Lübeck no longer had an interest in seeking the annulment of the decision at issue. The Court considered that, since the formal investigation procedure was not closed, that decision still produced effects and that the City of Lübeck did at the very least retain an interest in bringing proceedings in respect of the period prior to the sale of the airport.
37.
In order to determine whether the assessment of the General Court is correct, a brief reminder of the case-law concerning the requirement of a vested and present interest in bringing proceedings is needed.
38.
First of all, it is well established that the interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings distinct from an applicant’s locus standi, ( ) must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue to exist until the final decision, failing which there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. The question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained. ( ) The Court of Justice endeavours not to define that interest too restrictively.
39.
With regard to a decision to initiate the formal investigation procedure, such as the decision at issue, the Court has acknowledged that such a decision is liable to entail several autonomous legal effects. Accordingly, as well as the obligation to suspend the alleged aid measure during the proceedings brought against that decision, account must be taken of the possibility that an action will be brought before the national courts in order, in particular, for all the appropriate conclusions to be drawn from infringement of the last sentence of Article 108(3) TFEU. ( ) The Court has therefore concluded that, although the assessments carried out in the decision to initiate the formal investigation procedure are preliminary in nature, the decision does not lack legal effects. ( ) The Court has acknowledged, in particular, that the decision to initiate the formal investigation procedure necessarily alters the legal situation of the undertakings which are the beneficiaries of the measure. ( )
40.
Contrary to what the Commission maintains, the Court’s case-law does not find suspension of the measure to be the sole legal effect of the decision to initiate the formal investigation procedure. ( ) The Court has already noted other legal effects stemming from a decision to initiate the procedure. It has held that the national courts ‘are required to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure’. ( ) Among those conclusions, the Court has indicated, inter alia, the possibility of combining suspension of the measure with the obligation to recover payments already made. The national court may also order interim measures in order to safeguard the interests of the parties and the effectiveness of the Commission’s decision. ( )
41.
In the light of all those considerations, I consider that the legal effects of the decision to initiate the formal investigation procedure may continue to exist even after the sale of Lübeck Airport to a private operator. The decision to initiate the formal investigation procedure continues, until the procedure is closed by the Commission, to expose FL to the risk that a national court may order recovery of the aid granted when FL, which has been replaced by the applicant, owned Lübeck Airport.
42.
The General Court therefore did not err in law when it concluded, in paragraph 27 of the judgment under appeal, that the decision to initiate the formal investigation procedure continued to produce autonomous legal effects altering FL’s legal position, so as to confer on it an interest in bringing proceedings.
43.
In that regard, it is to be noted that this case is characterised by the fact that the measure at issue was still in the course of implementation at the time when the action was brought before the General Court and that, according to information provided by the Federal Republic of Germany, that measure is, to this day, still in force. Against that background, it is apparent that FL remains exposed to the risk of an order for recovery of the aid granted when it owned the airport by virtue of the obligation of the national court to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure.
44.
The Commission’s argument that, on the date on which the reply was lodged, no action against approval of the 2006 schedule was pending and that any action subsequent to that date would be time barred cannot be upheld. Even if this latter assertion is correct, it cannot be automatically precluded that, on the date on which the General Court gave its ruling, FL retained an interest in the decision at issue being annulled.
45.
In the light of all those considerations, I consider that the applicant at first instance remained at the very least exposed to the risk that a national court might order recovery of the aid granted prior to the sale of Lübeck Airport. It therefore retained an interest in seeking the annulment of the decision at issue.
46.
The second ground of appeal must, therefore, be rejected.
C – The third ground of appeal, alleging an incorrect assessment of the selectivity of the 2006 schedule
1. Arguments of the parties
47.
By its third ground of appeal, the Commission submits that the General Court misinterpreted the term ‘selectivity’ in the light of Article 107(1) TFEU by holding that, in order to assess whether the 2006 schedule might be selective, it was necessary to ascertain whether it applied in a non-discriminatory manner to all the undertakings using, or able to use, the specific goods or services. The fact that that schedule applies only to airlines using Lübeck Airport is not a relevant criterion.
48.
The Commission takes the view that the assessment of the General Court conflicts with the case-law of the Court of Justice, ( ) according to which a measure is not a general measure of fiscal or economic policy and is thus selective if it applies only to certain economic sectors or certain undertakings in a given sector. It considers that the conditions on which a public undertaking offers its own goods and services always constitute selective measures, and the question of inequality or discrimination is, in that context, not relevant for concluding whether or not there is aid. The General Court was therefore wrong to refer to the criterion adopted in the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, ( ) a criterion which applies only to fiscal measures and not to the conditions on which a public undertaking offers its own goods and services. ( ) The deciding factor is, in the latter case, the criterion of a private investor in a market economy.
49.
In the alternative, the Commission maintains that the General Court failed to comply with the case-law of the Court of Justice which states that it is the effects of the measure which are crucial in assessing whether or not it is selective ( ) and that measures which benefit only one economic sector are selective. ( ) It points out that, even though Lübeck Airport is in direct competition with that of Hamburg (Germany), the advantage conferred by the 2006 schedule benefits only airlines using the former airport, which is sufficient to show that the schedule is selective. The approach taken by the General Court amounts to exempting schedules of airport charges from the State aid rules.
50.
In the further alternative, the Commission maintains that the General Court misinterpreted the criterion relating to undertakings in a factual and legal situation that is comparable in the light of the objective pursued by the measure concerned. In order to determine which undertakings are in such a situation, it is necessary to take as a criterion not the scope of the measure at issue but the costs structure of the undertakings concerned. In the present case, the 2006 schedule is selective because it does not observe the principle — enshrined in Paragraph 43a(1) of the LuftVZO — which applies to all German airports, and therefore to all airlines, that airport charges must cover costs.
51.
Finally, the Commission argues that the General Court also erred in law by omitting to examine whether the discounts granted in the 2006 schedule are selective on the ground that only airlines which satisfy certain conditions benefit from them.
52.
The City of Lübeck maintains, in essence, that the General Court correctly found that the 2006 schedule does not favour certain undertakings or the production of certain goods. According to the City of Lübeck, the different treatment of comparable undertakings or of the production of comparable goods is a condition for selectivity. ( ) Therefore, the 2006 schedule is not selective because it does not treat comparable undertakings or the production of comparable goods differently.
53.
The Federal Republic of Germany contests the Commission’s argument that the conditions on which a public undertaking offers its goods and services must always be regarded as selective. A measure is selective in nature only if it grants special conditions to a certain group of undertakings and draws an internal distinction between users with regard to access to and use of the public facilities at issue. Moreover, the users of other airports are not in a comparable factual and legal situation.
54.
The Kingdom of Spain agrees with the interpretation of Article 107(1) TFEU given by the General Court as regards the selectivity criterion and supports the City of Lübeck’s arguments. It adds that the Commission’s premiss that the laying down of conditions on which a public entity offers its goods and services constitutes a selective measure does not result from the case-law. The Kingdom of Spain draws attention to the factors taken into account in the judgment of 14 January 2015, Eventech, ( ) for determining whether undertakings are in comparable situations.
2. Assessment
55.
It should be recalled that, according to Article 107(1) TFEU, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the internal market.
56.
According to the settled case-law of the Court of Justice, classification as ‘State aid’ for the purposes of Article 107(1) TFEU requires that all the conditions set out in that provision are fulfilled. ( )
57.
It is thus well established that, for a national measure to be classified as ‘State aid’ for the purposes of Article 107(1) TFEU, first, there must be an intervention by the State or through State resources; second, that intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient; and fourth, it must distort or threaten to distort competition. ( )
58.
In the present case, it is solely the interpretation and application of the third criterion, more specifically of the requirement of ‘selectivity’, which have been put in issue.
59.
According to case-law that is also well established, a measure is considered to be selective if it is such as to favour certain undertakings or the production of certain goods over other undertakings which are in a factual and legal situation that is comparable in the light of the objective pursued by the measure in question. ( )
60.
In the present instance, the General Court, in essence, held that the selectivity of a measure by which a public entity offers its goods and services is assessed having regard to all the undertakings using or able to use those goods or services. It held that the charges fixed under the 2006 schedule were applied in a non-discriminatory manner and thus concluded that the schedule was not selective in nature.
61.
In that regard, paragraph 53 of the judgment under appeal seems to beg the question in the following words:
‘In order to assess the potentially selective nature of a fee scale drawn up by a public entity for the use of a product or service in a given sector in relation to certain undertakings, it is necessary, in particular, to refer to all of the undertakings using or able to use that specific product or service and to examine whether only some of them obtain or are able to obtain a potential advantage. The situation of undertakings which do not want to or cannot use the product or service in question is therefore not directly relevant when assessing the existence of an advantage. In other words, the selective nature of a measure consisting of a fee scale drawn up by a public entity for the use of a product or service made available by that entity may be assessed only in relation to current or potential customers of that entity and of the specific product or service in question, and not, in particular, in relation to customers of other undertakings from that sector providing similar products and services. Furthermore, … if it were to be considered that every non-discriminatory fee scale implemented by a public entity in consideration of a given product or service has a selective character, that would, essentially, have the effect of excessively extending the notion of aid “favouring certain undertakings or the production of certain goods” referred to in Article 107(1) TFEU. In addition, in order for a potential advantage, conferred by a public entity in the context of the provision of specific products or services, to favour certain undertakings, it is necessary that … undertakings using or wishing to use that product or that service do not or cannot obtain that advantage from that entity in that particular context.’
62.
In the Commission’s view, that assessment is wrong. There are four parts to its argument. First, it maintains that the conditions on which a public undertaking offers its goods and services always constitute selective measures. Second, it considers that the General Court failed to have regard to the settled case-law of the Court of Justice according to which (i) only the effects of a measure are decisive for assessing its selectivity and (ii) measures which benefit one economic sector are necessarily selective. Third, it submits that the General Court misinterpreted the criterion relating to ‘undertakings in a factual and legal situation that is comparable in the light of the objective pursued by the measure concerned’. Fourth, it maintains that the General Court erred in law by failing to examine whether the discounts granted by the 2006 schedule, which benefit only airlines satisfying certain conditions, are selective.
63.
Before addressing the various parts of the Commission’s line of argument in turn, I would like to set out a number of general considerations which I consider necessary for understanding the meaning and scope of the selectivity condition and which will guide my examination of this ground of appeal.
a) General considerations on the meaning of the selectivity requirement under Article 107(1) TFEU and on its scope in a situation such as that at issue in the present case
64.
As the Commission has pointed out, it is apparent from the scheme and origin of the Treaties ( ) that a distinction must be drawn between general measures of fiscal or economic policy (which now fall within the scope of Articles 113 and 115 to 117 TFEU) and specific measures which lead to the acquisition of advantages by means of State resources (which are, for their part, now covered by Articles 107 to 109 TFEU).
65.
The requirement of ‘selectivity’, according to which measures covered by the prohibition laid down in Article 107(1) TFEU must be directed at ‘certain undertakings or the production of certain goods’, has the principal function, for the purpose of respecting the division of powers between the Member States and the European Union, of distinguishing State aid from general measures of fiscal or economic policy.
66.
Seen as decisive for distinguishing the measures which fall within the scope of State aid discipline from the others, that requirement, although it enables, in principle, ( ) a State measure which benefits without distinction all the undertakings situated in national territory to avoid the prohibition laid down in Article 107(1) TFEU, ( ) does not mean, however, that a measure laid down at regional or local level must necessarily be regarded as selective. Whilst in many cases the reference framework is at national level, it is conceivable that a lower level must be applicable in certain situations. To that effect, the Court specifically stated, in the ‘Azores’ case, ( ) that it is possible that an infra-State body enjoys a legal and factual status which makes it sufficiently autonomous in relation to the central government of a Member State, with the result that, by the measures it adopts, it is that body and not the central government which plays a fundamental role in the definition of the political and economic environment in which undertakings operate. In such a case it is the area in which the infra-State body responsible for the measure exercises its powers, and not the country as a whole, that constitutes the relevant context for the assessment of whether a measure adopted by such a body favours certain undertakings over others in a comparable factual and legal situation, having regard to the objective pursued by the measure or the legal system concerned. ( )
67.
As an extension of that reasoning, it is now accepted that that criterion requires verification as to whether, under a particular legal regime, a measure is such as to favour ‘certain undertakings or the production of certain goods’ over others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation. ( )
68.
The Court has repeatedly held that, in order to determine whether a measure is ‘selective’ and may therefore be classified as ‘State aid’, it is necessary to focus on the effects it produces. By contrast, the causes and objectives of State interventions and the techniques used to implement those interventions cannot be decisive factors. ( )
69.
Also, the Court has stated that it is not relevant, for the purpose of concluding that a specific measure is selective, only whether or not a large number of undertakings benefit from it, that the circle of beneficiaries of the measure is more, or less, open ( ) or that all the undertakings in a specific economic sector may benefit from the measure. ( )
70.
Moreover, as I have already had occasion to point out, ( ) the requirement as to selectivity or ‘specificity’ of the measure must be clearly distinguished from the detection of an economic advantage. In other words, once an advantage, understood in a broad sense, has been identified as arising directly or indirectly from a particular measure, it then remains for the Commission to establish that that advantage is specifically directed at one or more undertakings. It falls to the Commission, in particular, to show that the measure creates differences between undertakings which, in the light of the objective pursued, are in a comparable situation. ( ) What is prohibited is not the grant of an advantage as such, but the fact that, if carried out in a discriminatory and therefore selective manner, its grant is liable to place certain undertakings in a more favourable situation than others.
71.
That said, the selectivity requirement cannot, in my view, be completely disconnected from the concomitant, albeit separate, identification of an economic advantage.
72.
In this regard, several considerations, some of which I have already set out, ( ) should be addressed.
73.
In the context of the examination of a scheme of a general nature ( ) (subsidy schemes, a system of charges, tax relief, a scheme derogating from the rules of ordinary law in matters of insolvency, facilities for the payment of fees or miscellaneous charges, and so forth), selectivity provides a means of identifying whether the supposed advantage, although directed at economic operators in general, is, in fact and in the light of the objective criteria which it selects, of benefit only to certain types of undertakings or groups of undertakings.
74.
This involves identifying whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so ‘to the exclusive benefit of certain undertakings or certain sectors of activity’. This approach seeks, by another route, to ensure that State measures do not give rise to a differentiation between undertakings — or, more precisely, between economic operators which, in the light of the objective assigned to the national scheme in question, are in a comparable factual and legal situation — which is not justified by the nature and rationale of the scheme in question.
75.
In that regard, it should be pointed out that the concept of selectivity is linked to that of discrimination. ( ) Although it is true that the Commission cannot be required accurately to identify a category of undertakings with specific characteristics which are the only ones favoured by the measure at issue ( ) in order to conclude that the measure is selective, the fact remains that it must be established that, because it derogates from the common regime — which, as I have already said, may be, but is not always, a national general scheme — it is such as to favour certain undertakings.
76.
Therefore, in order to conclude that an alleged aid measure is selective, it seems to me essential to establish that it gives rise to a derogation from a ‘common’ or ‘normal’ regime, and that applies, in my view, whatever the nature of the regime at issue. I believe that it is now well established ( ) that, in order to assess the selectivity of a measure, a criterion which, in my view, is the expression of the principle of non-discrimination, it is necessary, in every case, to ascertain whether, within the context of a specific regime, that measure constitutes an advantage for certain undertakings in comparison with certain others.
77.
That prior determination of the reference framework, recognised as being essential in tax matters, is, in my view, just as essential in an examination of non-fiscal measures, and in particular of charging schemes designed inter alia to finance infrastructure, like the 2006 schedule at issue in the present case. Just as it could be held that the determination of the reference framework ‘has a particular importance in the case of tax measures, since the very existence of an advantage may be established only when compared with “normal” taxation’, ( ) it must be held that, before assessing the selectivity of a measure fixing charging rates, it is necessary to determine the ‘normally applicable’ regime from which the measure purports to derogate. ( )
78.
Finally, as in the case of the analytical framework which prevails in the examination of tax measures, it seems to me that, once the reference framework has been defined, it is then necessary to determine whether the measure at issue procures an advantage for certain undertakings in relation to others in a comparable factual and legal situation ( ) and, as the case may be, finally, to assess whether the grant of that advantage is justified by the nature and general scheme of the system of which the measure at issue forms part.
79.
It should be pointed out — a matter to which I shall return in the reasoning below — that, although identification of an economic advantage and, as the case may be, an assessment of the justification for it are relatively easy where a measure laying down a tax exemption derogates from the normally applicable tax regime (the ‘normal’ regime which is usually defined at national level), a degree of caution is required in the case of measures which fix charging rates and are designed to finance infrastructure.
b) The first part of the ground of appeal, alleging that the General Court disregarded the fact that the conditions on which a public undertaking offers its goods and services always constitute selective measures.
80.
The Commission maintains, as its principal argument, that the conditions on which a public undertaking offers its own goods and services always constitute selective measures. It relies on the Opinion delivered in the case giving rise to the judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755), ( ) and on the case-law. ( ) The criterion laid down in the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), which served to determine whether or not a tax regime was selective, therefore cannot be transposed to the present case. The Commission considers that paragraph 53 of the judgment under appeal shows that the General Court was guided by considerations of legislative policy designed to remove non-discriminatory rules relating to the charges of public institutions from State aid control.
81.
I am hardly convinced by this line of argument.
82.
First, contrary to what the Commission seems to suggest, it certainly does not follow from the Court’s case-law to which it has referred that a measure fixing charging rates for the use of a public undertaking’s goods and services is, by its very nature, selective.
83.
Thus, in two cases cited by the Commission, namely those giving rise to the judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission, ( ) and of 29 February 1996, Belgium v Commission, ( ) it is apparent that advantageous charging rates granted by a public undertaking to a group of clients were at issue. As for the cases giving rise to the judgments of 11 July 1996, SFEI and Others, ( ) and of 20 November 2003, GEMO, ( ) they concerned situations in which the advantages, although available to economic operators in general, had, in fact, been of benefit only to a small group of them. To summarise, it is not the supply of goods or services by a public body or a public undertaking which was held, as such, to be selective, but the fact that it had occurred under preferential conditions.
84.
More generally, there is no basis for maintaining that the conditions on which a public undertaking offers its goods and services, in any event where that offer takes the form of a regime applicable to economic operators in general wishing to use those goods or services, always satisfy the selectivity condition.
85.
As I pointed out in the introduction to this ground of appeal, in order to assess the selectivity of a measure, it is necessary to examine whether, under a particular legal regime, that measure constitutes an advantage for certain undertakings over others which are in a comparable factual and legal situation (see point 67 of this Opinion).
86.
In that context, identification of the reference framework — and, based on that, of the advantage possibly created by the derogation at issue — constitutes an essential prerequisite for any consideration of selectivity. Contrary to what the Commission maintains, it is not appropriate to restrict such verification to the case of fiscal or tax regimes. Although it cannot be denied that the method of examining the selectivity of a specific measure has particular features depending on the nature of the measure, I do not think that it is expedient to identify different examination criteria according to whether the measure is a tax measure or a measure establishing charging rates for the services provided to users.
87.
The Court’s case-law confirms that the comparative exercise prescribed in the case of tax regimes is equally valid in the case of other measures. I would point out in particular that the criterion laid down in the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), was not established only for a tax measure, but for a ‘State measure’ in general. ( )
88.
It should be noted that the Court has, moreover, conducted that comparative exercise in the case of measures relating to the payment of costs and to the use of infrastructure.
89.
Indeed, in the judgment of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9), ( ) the Court took care to consider, in relation to the authorisation given to London taxis to drive in bus lanes, whether London taxis and minicabs were in a comparable factual and legal situation. The examination of whether the measure is discriminatory is, in essence, coextensive with the examination of whether the measure confers a selective economic advantage on the beneficiary undertakings.
90.
It is apparent from all those considerations that the General Court did not err in law by holding that measures relating to the conditions on which a public entity offers goods and services are not necessarily selective (see paragraphs 53, 54 and 57 of the judgment under appeal).
91.
Contrary to the view taken by the Commission, that conclusion does not necessarily amount to denying any possibility of classifying as ‘State aid’ the conditions under which a public undertaking offers its goods and services where those conditions apply without distinction to all contracting parties. It is still permitted, in such a situation, to show that those conditions, although applicable without distinction, ultimately benefit only one or more quite specific undertakings, particularly those which match a well-defined commercial model.
92.
Whilst it cannot be ruled out at the outset that a scale of charges is selective, it is still necessary to demonstrate — which, as the General Court pointed out, the Commission failed to do — that it has the effect of discriminating against certain economic operators which are in a comparable situation.
93.
Also, although the general nature of the wording used at the beginning of paragraph 53 of the judgment under appeal may suggest that the General Court sought to exclude all the conditions on which a public undertaking offers its goods and services from the application of Article 107 TFEU where those conditions apply without distinction to all contracting parties, I consider that the General Court took care to state, at the end of that paragraph, that, ‘in order for a potential advantage, conferred by a public entity in the context of the provision of specific products or services, to favour certain undertakings, it is necessary that … undertakings using or wishing to use that product or that service do not or cannot obtain that advantage from that entity in that particular context’.
c) The second part of the ground of appeal, alleging that the General Court failed to have regard to the settled case-law of the Court of Justice according to which, first, only the effects of a measure are decisive for assessing its selectivity and, secondly, measures which benefit one economic sector are necessarily selective
94.
The Commission observes that Lübeck Airport is in direct competition with Hamburg Airport and that the ‘advantage’ conferred by the 2006 schedule is available only to airlines using Lübeck Airport. That simple fact is, in its submission, sufficient to establish that the 2006 schedule is selective by virtue of its effects.
95.
At first sight, the reasoning adopted by the General Court and in particular paragraph 53 of the judgment under appeal may be surprising.
96.
In order to conclude that the 2006 schedule was not selective, the General Court merely found that the provisions fixing charging rates in the 2006 schedule applied in a non-discriminatory manner to all the airlines using or wishing to use Lübeck Airport.
97.
In the light of the case-law according to which Article 107(1) TFEU defines State interventions in relation to their effects, ( ) it might be pleaded that a mere finding that the 2006 schedule is formally non-discriminatory is not sufficient to conclude that it is not selective. It would have been necessary to analyse whether the 2006 schedule, by its effects, benefits certain undertakings or the production of certain goods. Thus, in the judgment of 13 February 2003, Spain v Commission, ( ) the Court stated that the argument that a measure is governed by objective criteria of horizontal application shows only that the measure falls within an aid scheme and is not individual aid, but does not show that the measure is not selective.
98.
However, I do not consider that, in the present instance, the General Court failed to have regard to that case-law in the judgment under appeal. By holding that equal treatment of the actual or potential users of Lübeck Airport was the only determining factor, the Court implicitly, but necessarily, took into account the effects of the measure. It did not merely refer to the horizontal criteria for application of the 2006 schedule.
99.
Nor can it validly be maintained that a measure which benefits a ‘single sector’, in the present case the group of undertakings using Lübeck Airport, is necessarily selective. As has been pointed out in the introduction to this ground of appeal, that could be a valid conclusion only if it were concluded that the reference framework is that of a ‘normal’ regime applicable at national level or, at the very least, that it applies beyond the confines of that airport. Use of the concept of ‘sectorial selectivity’ makes sense only if there are measures adopted by the public authorities of a State, whether central, regional or local, which are competent to adopt decisions that may benefit all undertakings. In the case of measures adopted by an airport operator, which is competent only to adopt measures concerning that airport, the sectorial selectivity criterion should not be applicable. Also, where that operator itself determines the level of the airport charges applicable to airlines operating from and into that airport, it is not derogating from the national charging system but putting in place a scale of charges applicable to all the airlines wishing to use that airport.
100.
This shows that a measure adopted by an airport operator in respect of the airlines operating there is not selective if it is granted without discrimination to all those airlines.
101.
On that basis, it is necessary to assess whether the measure at issue introduces differentiation between economic operators which, in the light of the objective pursued, are in a comparable factual and legal situation. ( )
102.
This leads us to study the third part of the Commission’s line of argument.
d) The third part of the ground of appeal, alleging an incorrect examination of the criterion relating to ‘undertakings in a comparable factual and legal situation’
103.
The Commission maintains, first, that even if the comparison required by the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), were applicable to examination of the selectivity of measures fixing the charges of certain public entities, the General Court committed the same error as that which was criticised by the Court of Justice in the cases giving rise to the judgments of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 87 and 89), and of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraphs 61 to 67). The Commission takes the view that, if circular reasoning is not to be adopted, the comparability of the factual and legal situation does not depend on the criteria which define the scope of the measure at issue, but must be based on the cost structure of the undertakings concerned.
104.
The Commission submits, secondly, that the General Court failed to take account of the objective pursued by Paragraph 43a(1) of the LuftVZO, a provision applicable to all airports in Germany which prescribes the levying of airport charges that cover costs, for the purpose of protecting the public interest in the proper operation of aviation, and which constitutes the legal basis for the 2006 schedule.
105.
In the present case, the question arises as to whether the fact that the 2006 schedule actually applies only to airlines serving Lübeck Airport creates a difference in treatment between undertakings in a comparable situation.
106.
In that regard, it should be pointed out that, according to the applicable national law, each airport operator is authorised to adopt a scale of airport charges applicable to its own airport.
107.
This means that the 2006 schedule was intended to apply only to Lübeck Airport, which constitutes the relevant reference framework. In that context, the only decisive factor is whether that schedule differentiates between the undertakings using that single airport.
108.
The Commission’s argument that the assessment of the selectivity of the 2006 schedule cannot depend on the scope of the schedule, but should be based only on a comparison of the costs which are the subject of Paragraph 43a(1) of the LuftVZO, is unconvincing.
109.
As the City of Lübeck has pointed out, all airlines are able to use Lübeck Airport and thus to benefit from the advantages supposed to stem from application of the 2006 schedule. The choice made by airlines to use certain airport infrastructure generally depends on their own commercial strategy, according to the advantages and restrictions to which the infrastructure gives rise.
110.
I think that it is also inopportune to require a comparison of the situation of airlines allegedly favoured by the 2006 schedule with that of competing undertakings having the same budgetary expenditure items. Airlines which do not operate from and into Lübeck Airport specifically do not incur expenditure in relation to the charges levied by that airport. The Commission’s argument amounts to taking a different and incorrect approach to the question of the selectivity of the measure, namely ascertaining with what other transport infrastructure — airport, railway or other — Lübeck Airport may possibly compete, irrespective of the status of the operating undertakings and of the nature of the services which they provide. ( )
111.
Nor, in my view, can the argument be accepted in the present case that it was appropriate to take into account the objectives to be attained by a schedule fixing airport charges under Paragraph 43a(1) of the LuftVZO. It is apparent from the General Court’s assessment of the facts that that provision does not involve the general fixing of airport charges applicable to all airports. That provision only authorises each airport operator to adopt its own scale of charges in accordance with priorities which it is for that operator alone to define.
112.
In the end, it must be stated that, in the circumstances of this case, there are no basic general rules or basic reference rules from which the 2006 schedule is designed to derogate in favour of airlines using Lübeck Airport. The relevant reference framework is that of the regime which is applicable only to that airport.
e) The fourth part of the ground of appeal, alleging that the General Court erred in law by failing to examine whether the discounts granted by the 2006 schedule are selective on the ground that they benefit only certain airlines
113.
The Commission submits, in essence, that, even if the criterion laid down in the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598), were to be relevant for examining the selectivity of measures fixing charging rates such as those at issue in the present case, the General Court should have examined whether the 2006 schedule, owing to the various discounts for which it provides, is selective in that it favours certain airlines using Lübeck Airport to the detriment of other airlines using that airport.
114.
In that respect, the Commission maintains that the General Court was wrong to confine itself to examining the reasoning of the decision at issue contained in paragraph 279 thereof. It submits that paragraphs 55 to 66 of that decision described in detail the system of discounts laid down by the 2006 schedule. The Commission also submits that, contrary to what the General Court seems to suggest in paragraphs 53 and 55 of the judgment under appeal, the fact that the circle of beneficiaries of the discounts in question is open, since those discounts are granted according to objective criteria of horizontal application, does not prevent it from being selective. ( )
115.
In the present instance, I consider that the General Court did not err in law in concluding that the relevant reference framework was that of the charges applicable only to airlines using Lübeck Airport.
116.
The question now arises as to whether the General Court erred in law by not examining whether the system of discounts granted under the 2006 schedule created differentiation between those airlines.
117.
In that regard, it is possible for a scale of charges to be selective owing to the criteria and systems of discounts for which it provides.
118.
That said, it must be emphasised that the Commission did not take that factor as the basis for concluding, in paragraph 279 of the decision at issue, that the 2006 schedule was selective, but only the fact that ‘the advantages at issue benefit only airlines using Lübeck Airport’. Although the issue of the ‘rebates and discounts’ provided for by the 2006 schedule was indeed referred to in the decision at issue, in particular in paragraphs 268 to 277, it was not mentioned in connection with examination of the selectivity of that schedule, but only in the assessment of the existence of an ‘advantage’ for the purpose of Article 107(1) TFEU.
119.
In those circumstances, I consider that the Commission’s objection must be dismissed as inadmissible. In an appeal, the Court’s jurisdiction is confined to examining the assessment by the General Court of the pleas argued before it. ( )
120.
In any event, it should be pointed out that the Commission has not established that the system of discounts and rebates provided for by the 2006 schedule and granted to airlines with a large number of passengers — a system which seems therefore to be based on a common quantitative criterion — could not be justified.
121.
In conclusion, I consider that the third ground of appeal must be rejected.
D – The fourth ground of appeal, alleging insufficient and contradictory reasoning
1. Arguments of the parties
122.
The Commission submits, first, that the judgment of the General Court is vitiated by insufficient reasoning in three respects. First of all, the General Court neglected an essential element of the examination of selectivity, namely determination of the objective pursued by the 2006 schedule. It is in the light of that objective that it should be determined which undertakings are in a comparable factual and legal situation. Next, the General Court failed to state why selectivity of the aid is not at least the consequence of the system of discounts provided for by the 2006 schedule. Finally, the judgment under appeal fails to state why the 2006 schedule was so manifestly not selective that the Commission was not entitled to initiate the formal investigation procedure.
123.
The Commission considers, secondly, that the General Court’s reasoning is contradictory, since it first applies the case-law on the selectivity of fiscal measures (paragraphs 51 and 53 of the judgment under appeal) and then finds that that case-law is not relevant (paragraph 57 of the judgment under appeal).
124.
The City of Lübeck, supported by the Federal Republic of Germany and the Kingdom of Spain, contends that the judgment under appeal is properly reasoned and that the ground of appeal should be rejected.
2. Assessment
125.
I do not think that this ground of appeal can succeed.
126.
In the first place, as to whether the General Court stated sufficient reasons in the judgment under appeal with regard to the assessment of the selectivity of the 2006 schedule, it is apparent, first of all, that the General Court implicitly identified the objective of the 2006 schedule and the context in which it was drawn up. Next, it is to be noted that the General Court did not have to state the reasons why the system of discounts did not render the 2006 schedule selective, since, as I have already mentioned, that question was specifically not discussed before the General Court. Finally, I consider that the General Court likewise did not have to explain why the error committed by the Commission in the assessment of the selectivity of the measure at issue was so manifest that it had to lead to the annulment of the decision at issue.
127.
As regards, in the second place, the complaint alleging contradictory reasoning so far as concerns the relevance of the case-law on tax measures, I see no inconsistency between the considerations contained in paragraphs 51 and 53 of the judgment under appeal and the statement contained in paragraph 57 of that judgment.
E – The fifth ground of appeal, alleging disregard of the limited nature of review of a decision to initiate the formal procedure to investigate aid measures
1. Arguments of the parties
128.
The Commission submits that, although the General Court rightly points out, in paragraph 42 of the judgment under appeal, that judicial review of a decision to initiate the formal investigation procedure is limited, it exceeded the limits of that review.
129.
The Commission maintains in particular that FL, which was then operating Lübeck Airport, had proposed the 2006 schedule with the aim of avoiding State aid controls as regards its price-setting policy in respect of low-cost airlines. The Commission was faced with a situation in which a preliminary examination of the facts had not enabled it to dispel all the doubts as to whether or not that schedule was selective. Consequently, the Commission was required to initiate the formal investigation procedure. The judgment under appeal contains no explanation as to the reasons why the 2006 schedule was so manifestly not selective that the Commission was not entitled to initiate the formal investigation procedure.
130.
The City of Lübeck, supported in this regard by the Federal Republic of Germany and the Kingdom of Spain, contends that this ground of appeal should be rejected. It considers that, since it is manifest that the measure at issue, namely the 2006 schedule, is not selective, the General Court was right to hold that the decision at issue was vitiated by a manifest error of assessment.
2. Assessment
131.
I am also not convinced that the General Court exceeded the limits of judicial review concerning the initiation of the formal investigation procedure.
132.
Admittedly, it cannot be denied that the decision to initiate the formal investigation procedure is based on an analysis, which is necessarily provisional, of the information brought to the notice of the Commission during the preliminary investigation stage. Since that information is by definition ‘fragmentary’, the Commission, at the end of that preliminary stage, can only make suppositions regarding whether there is aid and, consequently, regarding whether the cumulative conditions laid down in Article 107(1) TFEU are fulfilled.
133.
As the Court has repeatedly held, it is necessary to distinguish between the preliminary procedure for reviewing aid established by Article 108(3) TFEU, which is intended only to allow the Commission to form a prima facie opinion as to whether the aid is compatible in part or in whole, and the formal investigation procedure referred to in Article 108(2) TFEU, which permits — and, in my view, requires — an in-depth examination of the State measures and has a dual purpose. ( )
134.
In view of the necessary distinction between those two stages in examining measures, it is not possible to subject the preliminary stage to the same legal requirements as those imposed in connection with the formal procedure.
135.
Consequently, the Commission is authorised to initiate the formal investigation procedure provided for in Article 108(2) TFEU where it has sufficient information to consider that a measure fulfils all the conditions for classification as ‘State aid’ prohibited by Article 107(1) TFEU.
136.
However, it cannot be concluded from this that the Commission may confine itself, in support of its decision to initiate the procedure provided for in Article 108(2) TFEU, to making general statements regarding the fulfilment of the conditions required by Article 107(1) TFEU. As is apparent from Article 6 of Regulation No 659/1999, the decision to initiate the formal investigation procedure is to include a preliminary assessment by the Commission as to the aid character of the proposed measure and is to set out the doubts as to its compatibility with the common market.
137.
Also, although limited to ascertaining whether or not the Commission made a manifest error of assessment in considering that it could not overcome all the difficulties regarding classification of the measure at issue as ‘State aid’ during a first examination of that measure, ( ) the review carried out by the General Court of the decision to initiate the formal investigation procedure and, in particular, of the question of whether the conditions laid down in Article 107(1) TFEU were prima facie satisfied must nevertheless be effective. It should be pointed out, in line with the reasoning stated in connection with the second ground of appeal, that decisions to initiate a preliminary investigation may have specific and significant legal effects for the parties concerned.
138.
By confining itself, in paragraph 279 of the decision at issue, to stating that ‘the advantages [under the 2006 schedule] benefit only airlines using Lübeck Airport [and are therefore] selective for the purpose of Article 107(1) TFEU’, the Commission omitted to state from which general rules the 2006 schedule was intended to derogate. By so doing, it failed to define the relevant reference framework and thus committed a manifest error in its assessment of the measure at issue, an error which, in my view, is unrelated to the existence of complex economic assessments.
139.
In this connection, it cannot reasonably be maintained that the General Court should not have restricted its examination to the assessment contained in paragraph 279 of the decision at issue, but should have taken into account the description of the system of discounts in paragraphs 268 to 274 of that decision, since these latter paragraphs concern the identification of a supposed advantage under the 2006 schedule and not its selectivity.
140.
I therefore consider that the General Court could conclude without committing a manifest error of assessment that the Commission had not adequately explained why it was unable to indicate, at the stage of its preliminary investigation, the reasons why the 2006 schedule was selective, so that it was required to initiate the formal investigation procedure or, at the very least, it was entitled to do so.
V – Conclusion
141.
In the light of all the foregoing considerations, I propose that the Court dismiss the appeal and order the European Commission to pay its own costs and those incurred by Hansestadt Lübeck. The Federal Republic of Germany and the Kingdom of Spain are to bear their own costs.
( ) Original language: French.
( ) T‑461/12, ‘the judgment under appeal’, EU:T:2014:758.
( ) Decision of 22 February 2012 on State aid No SA.27585 and SA.31149 (2012/C) (ex NN/2012, ex CP 31/2009 and CP 162/2010) — Germany (‘the decision at issue’).
( ) Joined Cases C‑20/15 P and C‑21/15 P, EU:C:2016:624, point 5.
( ) BGB1. I, p. 370.
( ) Council Regulation of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1990 L 83, p. 1).
( ) 282/85, EU:C:1986:316.
( ) 282/85, EU:C:1986:316.
( ) See judgments of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, 107); of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 72); and of 19 December 2013, Telefónica v Commission (C‑274/12 P, EU:C:2013:852, paragraph 46).
( ) See, by analogy, judgments of 30 April 1998, Vlaamse Gewest v Commission (T‑214/95, EU:T:1998:77, paragraphs 29 and 30), and of 15 June 1999, Regione Autonoma Friuli-Venezia Giulia v Commission (T‑288/97, EU:T:1999:125, paragraphs 31 and 34). See, a contrario, judgment of 10 July 1986, DEFI v Commission (282/85, EU:C:1986:316, paragraph 18), in which it was held, on the other hand, that the French Government undeniably had the power to determine DEFI’s management and policies and hence also to define the interests which that organisation was required to defend.
( ) It is apparent that rules fixing airport charges are included, like general conditions, in the contracts concluded between the company operating the airport and the airlines.
( ) See judgments of 24 October 2002, Aéroports de Paris v Commission (C‑82/01 P, EU:C:2002:617, paragraph 63), and of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217, paragraph 79 and the case-law cited).
( ) See judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217, paragraph 80 and the case-law cited).
( ) Judgments of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 98), and of 10 February 2011, Activision Blizzard Germany v Commission (C‑260/09 P, EU:C:2011:62, paragraph 53).
( ) Opinion of Advocate General Jääskinen in France v Commission (C‑559/12 P, EU:C:2013:766, point 42 and the case-law cited).
( ) 282/85, EU:C:1986:316.
( ) In support of that argument, the Commission refers to the judgments of 16 October 2014, Alro v Commission (T‑517/12, EU:T:2014:890, paragraphs 19 to 67), and of 16 October 2014, Alpiq RomIndustriesandAlpiq RomEnergie v Commission (T‑129/13, not published, EU:T:2014:895, paragraphs 18 to 31).
( ) See, inter alia, judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraphs 58 and 62 and the case-law cited).
( ) See judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraphs 61 to 65 and the case-law cited).
( ) See judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695, paragraphs 52 and 53).
( ) Judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraph 37).
( ) Judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695, paragraph 52).
( ) Judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695, paragraph 53 and the case-law cited).
( ) Judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraph 42).
( ) See judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraphs 42 and 43), and order of the President of the Court of Justice of 4 April 2014, Flughafen Lübeck (C‑27/13, not published, EU:C:2014:240, paragraphs 25 and 26).
( ) The Commission refers inter alia to the judgments of 20 November 2003, GEMO (C‑126/01, EU:C:2003:622, paragraphs 35 to 39), and of 15 December 2005, Italy v Commission (C‑66/02, EU:C:2005:768, paragraphs 95 to 101).
( ) C‑143/99, EU:C:2001:598, paragraph 41.
( ) The Commission relies on the Opinion of Advocate General Mengozzi in Deutsche Lufthansa (C‑284/12, EU:C:2013:442). It also mentions the judgments of 2 February 1998, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 28 and 29); of 29 February 1996, Belgium v Commission (C‑56/93, EU:C:1996:64, paragraph 10); of 20 November 2003, GEMO (C‑126/01, EU:C:2003:622, paragraphs 35 to 39); of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraphs 63 to 67); and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732).
( ) The Commission cites the judgments of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 85 to 89); of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraph 51); and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 87 to 109).
( ) The Commission refers to the judgments of 17 June 1999, Belgium v Commission (C‑75/97, EU:C:1999:311, paragraph 33); of 15 December 2005, Unicredito Italiano (C‑148/04, EU:C:2005:774, paragraph 45); and of 15 June 2006, Air Liquide Industries Belgium (C‑393/04 and C‑41/05, EU:C:2006:403, paragraphs 31 and 32).
( ) The City of Lübeck refers to the judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraphs 41 and 42).
( ) C‑518/13, EU:C:2015:9, paragraph 61.
( ) See, inter alia, judgment of 2 September 2010, Commission v Deutsche Post (C‑399/08 P, EU:C:2010:481, paragraph 38 and the case-law cited).
( ) Judgment of 2 September 2010, Commission v Deutsche Post (C‑399/08 P, EU:C:2010:481, paragraph 39 and the case-law cited).
( ) Judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraph 41).
( ) See in particular the ‘Spaak Report’ (Report of the intergovernmental committee created by the Messina Conference to the Ministers of Foreign Affairs, Brussels, 21 April 1956, p. 59), according to which ‘it should be noted that certain intervention schemes which formally constitute aid or subsidies are not directed specifically at undertakings or sectors, but affect the general economy. In that case, the Commission does not have the power on its own to determine incompatibility’.
( ) The case-law has stated that interventions which are prima facie applicable to all undertakings may have a certain degree of selectivity — particularly where the body granting financial assistance enjoys a degree of latitude which enables it to choose the beneficiaries or the conditions under which the financial assistance is provided — and may therefore be regarded as intended to favour certain undertakings or the production of certain goods (see, inter alia, judgment of 29 June 1999, DM Transport, C‑256/97, EU:C:1999:332, paragraph 27 and the case-law cited).
( ) See, to this effect, judgment of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (C‑143/99, EU:C:2001:598, paragraphs 35 and 36).
( ) Judgment of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511).
( ) Judgment of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511, paragraph 58).
( ) Judgments of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 82), and of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraphs 54 and 55).
( ) See, inter alia, judgments of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 85 and 89), and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87).
( ) See, inter alia, judgment of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraph 50 and the case-law cited).
( ) Judgment of 15 June 2006, Air Liquide Industries Belgium (C‑393/04 and C‑41/05, EU:C:2006:403, paragraphs 31 and 32 and the case-law cited).
( ) See my Opinion in Commission v MOL (C‑15/14 P, EU:C:2015:32, point 47).
( ) See judgment of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraph 62).
( ) See my Opinion in Commission v MOL (C‑15/14 P, EU:C:2015:32, points 50 to 55).
( ) In the case of a measure of an individual nature, identification of the economic advantage in principle enables its ‘specificity’ to be presumed and, therefore, the conclusion to be drawn that is also selective.
( ) See, to this effect, judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 101), and of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 53). See point 54 of my Opinion in Commission v MOL (C‑15/14 P, EU:C:2015:32) and point 29 of the Opinion delivered by Advocate General Bobek in Belgium v Commission (C‑270/15 P, EU:C:2016:289).
( ) See, in that regard, Opinion of Advocate General Wathelet in Commission v Banco Santander and Santusa (C‑20/15 P and C‑21/15 P, EU:C:2016:624, particularly points 7, 10 and 80 to 87).
( ) See judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 82 and 83 and the case-law cited).
( ) See, in that regard, judgment of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511, paragraph 56).
( ) I would point out that the Commission, in its recent Notice 2016/C 262/01 on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p. 1), stated that ‘the reference system constitutes the benchmark against which the selectivity of a measure is assessed’.
( ) In the case giving rise to the judgment of 4 June 2015, Commission v MOL (C‑15/14 P, EU:C:2015:362, paragraph 61), the Court held, concerning a measure fixing mining fees in connection with the extraction of hydrocarbons, that ‘the appropriate comparator for establishing the selectivity of the measure at issue in the present case was to ascertain whether [it] draws a distinction between operators that are, in the light of the objective of the measure, in a comparable factual and legal situation, a distinction not justified by the nature and general scheme of the system at issue’.
( ) Opinion of Advocate General Mengozzi in Deutsche Lufthansa (C‑284/12, EU:C:2013:442).
( ) The case-law concerned comprises the judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 28 and 29); of 29 February 1996, Belgium v Commission (C‑56/93, EU:C:1996:64, paragraph 10); of 20 November 2003, GEMO (C‑126/01, EU:C:2003:622, paragraphs 35 to 39); of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraphs 63 to 67); and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732).
( ) 67/85, 68/85 and 70/85, EU:C:1988:38.
( ) C‑56/93, EU:C:1996:64.
( ) C‑39/94, EU:C:1996:285.
( ) C‑126/01, EU:C:2003:622, paragraphs 35 to 39.
( ) See, in particular, paragraph 41.
( ) See, in particular, paragraphs 54 to 61.
( ) See, inter alia, judgments of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraphs 85 and 89), and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 87, 88 and 92).
( ) C‑409/00, EU:C:2003:92, paragraph 49.
( ) Judgment of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraph 55).
( ) See judgment of 14 January 2015, Eventech (C‑518/13, EU:C:2015:9, paragraphs 59 to 61).
( ) The Commission refers to the judgments of 13 February 2003, Spain v Commission (C‑409/00, EU:C:2003:92, paragraph 48); of 15 July 2004, Spain v Commission (C‑501/00, EU:C:2004:438, paragraphs 118 to 128); and of 8 September 2011, Commission v Netherlands (C‑279/08 P, EU:C:2011:551, paragraph 50).
( ) See, inter alia, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 99 and the case-law cited).
( ) See, inter alia, judgments of 15 April 2008, Nuova Agricast (C‑390/06, EU:C:2008:224, paragraph 57), and of 21 July 2011, Alcoa Trasformazioni v Commission (C‑194/09 P, EU:C:2011:497, paragraph 57). With regard to the difference between the preliminary examination stage and the formal stage, see, most recently, my Opinion in Club Hotel Loutraki and Others v Commission (C‑131/15 P, EU:C:2016:617, points 25 to 27).
( ) See, inter alia, judgment of 21 July 2011, Alcoa Trasformazioni v Commission (C‑194/09 P, EU:C:2011:497, paragraph 61). |
"ORDER OF THE GENERAL COURT (Fourth Chamber)\n11 March 2016 ( *1 )\n‛Community trade mark — Oppo(...TRUNCATED) |
"OPINION OF ADVOCATE GENERAL\nCRUZ VILLALÓN\ndelivered on 17 March 2015 ( )\nCase C‑39/14\nBodenv(...TRUNCATED) |
"OPINION OF ADVOCATE GENERAL\nCRUZ VILLALÓN\ndelivered on 23 April 2015 ( )\nCase C‑110/14\nHora(...TRUNCATED) |
"JUDGMENT OF THE COURT (Sixth Chamber)\n15 October 2015 ( * )\n‛Reference for a preliminary ruling(...TRUNCATED) |
"JUDGMENT OF THE COURT (Second Chamber)\n28 January 2016 ( *1 )\n‛Failure of a Member State to ful(...TRUNCATED) |
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