(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Article 7(2) – Special jurisdiction in matters relating to tort, delict or quasi-delict – Publication on the internet of allegedly disparaging comments concerning a person – Place where the harmful event occurred – Courts of each Member State in which content placed online is or has been accessible)
SOURCE: Court of Justice of the European Union, Press Release No 231/20, 21 December '21
Gtflix Tv (‘the applicant’) is a company established in the Czech Republic which produces and distributes adult audiovisual content. DR, who is domiciled in Hungary, is another professional in that field. The applicant, which alleges that DR made disparaging comments about it on a number of websites, brought proceedings against him before the French courts, seeking, first, the removal of those comments and the rectification of the published information and, secondly, compensation for the damage suffered as a result of those comments. Both at first instance and on appeal, those courts declared that they had no jurisdiction to rule on those claims.
Before the Cour de cassation (Court of Cassation, France), the applicant challenged the judgment delivered by the cour d’appel (Court of Appeal, France), which, according to the applicant, disregarded the rule of special jurisdiction laid down in Article 7(2) of Regulation No 1215/2012 in favour of the courts ‘for the place where the harmful event occurred or may occur’, by excluding the jurisdiction of the court seised on the ground that it is not sufficient that the comments deemed to be disparaging which were published on the internet are accessible within the jurisdiction of that court, but that those comments must also be liable to cause damage there.
The referring court, considering, inter alia, that the applicant’s centre of interests was established in the Czech Republic and that DR is domiciled in Hungary, held that the French courts had no jurisdiction to hear the application for the removal of the allegedly disparaging comments and the rectification of the published information. It nevertheless decided to ask the Court of Justice whether the French courts have jurisdiction to rule on the claim for compensation in respect of the damage allegedly caused to the applicant in the Member State of those courts, even though those courts do not have jurisdiction to rule on the application for rectification and removal.
In its judgment, the Court, sitting as the Grand Chamber, provides clarification as regards the determination of the courts having jurisdiction to rule on an action for compensation concerning damage which materialised on the internet.
Findings of the Court
The Court holds that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments concerning him or her on the internet, seeks not only the rectification of information and the removal of the content placed online concerning him or her but also compensation for the damage resulting from that placement may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seised, even though those courts do not have jurisdiction to rule on the application for rectification and removal.
In reaching that conclusion, the Court notes that, according to its case-law, the rule of special jurisdiction laid down in Article 7(2) of Regulation No 1215/2012 in favour of the courts ‘for the place where the harmful event occurred or may occur’ is intended to cover both the place where the damage occurred and the place of the event giving rise to it, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings.
As regards allegations of infringement of personality rights by means of content placed on a website, the Court also notes that a person who considers that his or her rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his or her interests is based. That person may also, instead of an action for liability seeking compensation in respect of all the damage caused, bring an action before the courts of each Member State in which content placed online is or has been accessible. However, those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.
Consequently, in accordance with Article 7(2) of Regulation No 1215/2012, as interpreted by the previous case-law, a person who considers that he or she has been harmed by the placing of information on a website may, for the purposes of rectifying that information and removing the content placed online, bring proceedings before the courts with jurisdiction to rule on the entirety of an application for compensation for the damage suffered - namely either the court of the place of establishment of the publisher of that content or the court within whose jurisdiction the centre of interests of that person is situated - on the basis of the place where the damage occurred.
In that regard, the Court specifies that an application for rectification of information and removal of content placed online cannot be brought before a court other than the court with jurisdiction to rule on the entirety of an application for compensation for damage, because it constitutes a single and indivisible application.
By contrast, an application for compensation may seek either full or partial compensation. Accordingly, it is not justified to exclude, on that same ground, the possibility for the applicant to claim partial compensation before any other court within whose jurisdiction he or she considers that he or she has suffered damage.
Nor, moreover, does the sound administration of justice require the exclusion of that possibility, since a court which has jurisdiction to rule solely on the damage at issue in its own Member State appears perfectly capable of assessing, in the context of proceedings conducted in that Member State and in the light of the evidence gathered there, the existence and the extent of the alleged damage.
Lastly, the attribution to the courts concerned of jurisdiction to rule solely on the damage caused in their own Member State is subject to the sole condition that the harmful content must be accessible or have been accessible in that Member State, since Article 7(2) of Regulation No 1215/2012 does not impose any additional condition in that regard. The addition of further conditions could, in practice, lead to the exclusion of the option, for the person concerned, to bring an action for partial compensation before the courts of the place where that person considers that he or she suffered damage.
(Reference for a preliminary ruling – Second subparagraph of Article 19(1) TEU – Obligation of Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law – Public procurement – Directive 89/665/EEC – Article 1(1) and (3) – Article 47 of the Charter of Fundamental Rights of the European Union – Judgment of a Member State’s highest administrative court declaring inadmissible, in breach of the case-law of the Court of Justice, an action brought by a tenderer excluded from a public procurement procedure – No remedy against that judgment before the highest court in that Member State’s judicial order – Principles of effectiveness and equivalence)
SOURCE: Court of Justice of the European Union, Press Release No 228/2021, 21 December '21
Azienda USL Valle d’Aosta (local health agency of the Valle d’Aosta region, Italy) launched a procedure for the purpose of awarding a public contract to an employment agency for the temporary supply of personnel. Randstad Italia SpA (‘Randstad’) was among the tenderers which participated in that procedure. Following the evaluation of technical offers, Randstad was excluded, the marks for its offer having failed to reach the minimum threshold set.
Randstad brought an action before the competent administrative court of first instance seeking, first, to challenge its exclusion from the tendering procedure and, second, to demonstrate the irregularity of that procedure. The action was declared admissible but was dismissed on the merits. However, the Consiglio di Stato (Council of State, Italy), before which an appeal was brought, held that the pleas challenging the regularity of the procedure should have been declared inadmissible, since Randstad did not have the necessary standing to raise them. Accordingly, it amended the judgment delivered at first instance in that respect. Randstad appealed against that judgment to the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which stated, regarding the substance, that the refusal by the Council of State to examine the pleas relating to the irregularity of the tendering procedure undermines the right to an effective remedy, within the meaning of EU law. However, it noted that Italian constitutional law, as interpreted by the Corte costituzionale (Constitutional Court, Italy), requires such an appeal to be declared inadmissible. Appeals in cassation against decisions of the Council of State are permitted only for reasons of jurisdiction, whereas in the present case Randstad’s appeal was based on a plea alleging an infringement of EU law.
Against that background, the Supreme Court of Cassation decided to refer the matter to the Court of Justice in order to clarify, in essence, whether EU law precludes a provision of domestic law which, according to national case-law, does not allow individual parties to challenge, by means of an appeal in cassation to that court, the conformity with EU law of a judgment of the highest administrative court.
The Court of Justice, sitting in the Grand Chamber, rules that such a provision is consistent with EU law.
Findings of the Court
In the light of the principle of procedural autonomy, the Court observes that, provided there are EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for remedies to ensure effective legal protection, within the meaning of Article 19 TEU, for individual parties in the fields covered by EU law. However, it is necessary to ensure that those rules are not less favourable than in similar domestic situations (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness). Thus, EU law, in principle, does not preclude Member States from restricting or imposing conditions on the pleas which may be relied on in proceedings in an appeal in cassation, provided that those two principles are respected.
As regards the principle of equivalence, the Court notes that, in this case, the jurisdiction of the referring court to hear and determine appeals against judgments of the Council of State is limited according to the same rules, regardless of whether the appeals are based on provisions of national law or of EU law. Consequently, observance of that principle is ensured.
As to the principle of effectiveness, the Court recalls that EU law does not have the effect of requiring Member States to establish remedies other than those established by national law, unless no legal remedy exists that would make it possible to ensure respect for the rights that individuals derive from EU law. Provided that, in the present case, the referring court finds that such a legal remedy does exist, which seems on the face of it to be the case, it is entirely open – from the point of view of EU law – to the Member State concerned to confer jurisdiction on the highest court in its administrative order to adjudicate on a dispute at last instance, in relation both to the facts and to points of law, and consequently to prevent that dispute from being open to further substantive examination in an appeal in cassation before the highest court in its judicial order. Thus, the national provision at issue also does not undermine the principle of effectiveness and reveals nothing from which it could be concluded that Article 19 TEU has been infringed. That conclusion does not conflict with the provisions of Directive 89/665 under which, in the field of public procurement, the Member States are obliged to guarantee the right to an effective remedy.
However, the Court notes that, in the light of the right to an effective remedy guaranteed by that directive and by Article 47 of the Charter, the Council of State was wrong to have found the action brought by Randstad before the administrative courts to be inadmissible. In that regard, the Court recalls, first, that it is sufficient, in order for that action to be declared admissible, that there is a possibility that the contracting authority will, should the review be successful, have to restart the public procurement procedure. Second, under that directive, the action may be brought only by a tenderer who has not yet been definitively excluded from the tendering procedure, and the exclusion of a tenderer is definitive only if it has been notified to that tenderer and has been ‘considered lawful’ by an independent and impartial tribunal.
In the present case, the Council of State disregarded that rule, in so far as both at the time when Randstad brought the action before the court of first instance and at the time when the latter gave its ruling, the decision of the procurement committee to exclude that tenderer from the procedure had not yet been considered lawful by that court or by any other independent review body.
However, in a situation such as that in the present case, where national procedural law in itself permits interested persons to bring an action before an independent and impartial tribunal and to assert before it, effectively, that EU law, and provisions of national law transposing EU law into the domestic legal order, have been infringed, but where the highest court in the administrative order of the Member State concerned, adjudicating at last instance, wrongly makes the admissibility of that action subject to conditions that have the effect of depriving those interested persons of their right to an effective remedy, EU law does not require that that Member State make provision – for the purpose of addressing the infringement of that right to an effective remedy – for the possibility of lodging an appeal before the highest court in the judicial order against such inadmissibility decisions from the highest administrative court.
Lastly, the Court points out that that outcome is without prejudice to the right of individuals who may have been harmed by the infringement of their right to an effective remedy as a result of a decision of a court adjudicating at last instance to hold the Member State concerned liable, provided that the conditions laid down by EU law to that effect are satisfied, in particular the condition relating to the sufficiently serious nature of the infringement of that right.
(Reference for a preliminary ruling — Citizenship of the Union — Freedom of movement for persons — Directive 2004/38/EC — Right of free movement and residence within the territory of the Member States — Article 7(1)(a) — Employees and self-employed persons — Article 7(3)(c) — Right of residence for more than three months — National of a Member State who has worked in an employed capacity in another Member State for a period of two weeks — Involuntary unemployment — Retention of the status of worker for no less than six months — Entitlement to jobseeker’s allowance)
SOURCE: Court of Justice of the European Union, Annual report 2020
In the judgment in Tarola, delivered on 11 April 2019, the Court, interpreting Directive 2004/38 on the right of citizens of the Union to move and reside within the territory of the Member States, held that a national of a Member State who, having exercised his or her right to free movement, acquired the status of worker in another Member State on account of the activity he or she pursued there for a period of two weeks, otherwise than under a fixed-term employment contract, before becoming involuntarily unemployed, retains the status of worker for a further period of no less than six months. However, he or she must have registered as a jobseeker with the relevant employment office.
The dispute in the main proceedings concerned a Romanian national who had worked in Ireland on several occasions for short periods, including for two weeks in July 2014. He subsequently submitted to the Minister for Social Protection an application for jobseeker’s allowance. The Minister refused that application, in essence, on the ground that the person concerned had not been able to demonstrate that his habitual residence was in Ireland, stating that his short period of work in July 2014 was not sufficient to call that finding into question. The person concerned argued before the Irish courts that, under Directive 2004/38, he had a right to reside in Ireland as a worker for the period of six months after the end of his occupational activity in July 2014.
That directive provides that all citizens of the Union have the right of residence for a period of longer than three months on the territory of a Member State other than that of which they are a national, provided that they have the status of worker in the host Member State. In addition, it guarantees that all citizens of the Union in a position of temporary inactivity retain their status of worker and, consequently, their right to reside in the host Member State, in certain circumstances, including when they become involuntarily unemployed. The appellant in the main proceedings relied, specifically, on a provision of that directive which provides for the retention of the status of worker ‘after having become involuntarily unemployed during the first twelve months’.
The Court provided clarification on that provision, stating that it applies when a citizen of the Union is unemployed for reasons beyond his or her control before having been able to complete one year of activity. That is the case, inter alia, in all situations in which a worker has been obliged to stop working in the host Member State before one year has elapsed, regardless of the nature of the activity or the type of employment contract entered into for that purpose, that is to say, regardless of whether that person entered into a fixedterm contract of more than a year, an indefinite contract or any other type of contract.
Furthermore, the retention of the status of worker pursuant to that provision presupposes, first, that the citizen concerned, before his or her period of involuntary unemployment, did actually have the status of worker and, secondly, that that citizen has registered as a jobseeker with the relevant employment office. In addition, the citizen retains the status of worker only for a period of time which the host Member State may determine, provided it is no less than six months.
Lastly, the Court noted that, under Directive 2004/38, all citizens of the Union residing in the territory of the host Member State enjoy equal treatment with the nationals of that Member State within the scope of the Treaty on the Functioning of the European Union. Accordingly, where national law excludes from the entitlement to social benefits persons who have worked only for a short period of time, that exclusion applies in the same way to workers from other Member States. As regards the case in the main proceedings, the Court entrusted the referring court with the task of determining whether, under national law and in accordance with the principle of equal treatment, the appellant in the main proceedings was entitled to the jobseeker’s allowance he claimed.
(Reference for a preliminary ruling — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43/EC — Article 2(2)(a) and (b) — Credit institution requiring persons applying for a loan to purchase a car who have produced a driving licence indicating a country of birth other than a Member State of the European Union or of the European Free Trade Association as a form of identification to provide additional proof of identity in the form of a copy of a passport or residence permit)
SOURCE: Court of Justice of the European Union, Annual report 2017
In its judgment in Jyske Finans, delivered on 6 April 2017, the Court ruled on the prohibition on any direct or indirect discrimination based on ethnic origin provided for in Article 2(2)(a) and (b) of Directive 2000/43. In this case, the person concerned, who was born in Bosnia and Herzegovina, resided in Denmark and had acquired Danish nationality in 2000. When purchasing a second-hand car with his Danish partner by means of a loan, the credit company had asked him to provide additional proof of his identity in the form of a copy of his passport or residence permit, since his driving licence indicated a country of birth other than a Member State of the European Union or of the European Free Trade Association (EFTA). No such request was made to his partner, born in Denmark. The person concerned took the view that the credit company’s practice was discriminatory and referred the matter to the Danish Equal Treatment Board, which awarded him compensation on grounds of indirect discrimination. The credit company — appearing as applicant before the referring court — considered that it had complied with its obligations under the rules on the prevention of money laundering and challenged the categorisation of its practice as discriminatory.
In its examination, in the first place, of whether the practice at issue amounted to direct discrimination based on ethnic origin, the Court considered whether a person’s country of birth had to be regarded as directly or inextricably linked to his specific ethnic origin. It observed that ethnic origin cannot be determined on the basis of a single criterion but, on the contrary, is based on a whole number of factors, some objective and others subjective, such as common nationality, religious faith, language, cultural and traditional origins and background. Accordingly, the Court held that a person’s country of birth cannot, in itself, justify a general presumption that that person is a member of a given ethnic group such as to establish the existence of a direct or inextricable link between those two concepts. It cannot therefore be concluded that the requirement to provide additional proof of identification at issue is directly based on ethnic origin and, in consequence, that that practice entails different treatment that is directly based on ethnic origin.
In the second place, the Court examined whether the practice at issue, although on the face of it neutral, constituted indirect discrimination based on ethnic origin which may put persons of a given racial or ethnic origin at a particular disadvantage compared with other persons. It stated that for the purposes of ascertaining whether a person has been subject to unfavourable treatment, it is necessary to carry out not a general abstract comparison, but a specific concrete comparison, in the light of the favourable treatment in question. The Court rejected the argument that the use of the criterion at issue in the main proceedings, namely a person’s country of birth, is generally more likely to affect persons of a ‘given ethnicity’ than ‘other persons’. To the same effect, it rejected the argument that the use of that criterion would place at a disadvantage persons whose ethnic origin is that of a country other than a Member State of the European Union or the EFTA.
Since the practice at issue in the main proceedings was neither directly nor indirectly linked to the ethnic origin of the person concerned, the Court held that Article 2(2)(a) and (b) of Directive 2000/43 did not preclude that practice.
(Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 33 — Determination of the place where taxable transactions are carried out — Supply of goods with transport — Supply of goods dispatched or transported by or on behalf of the supplier — Regulation (EU) No 904/2010 — Articles 7, 13 and 28 to 30 — Cooperation between the Member States — Exchange of information)
SOURCE: Court of Justice of the European Union, Annual report 2020
In the judgment in KrakVet Marek Batko, delivered on 18 June 2020, the Court interpreted, for the first time, Article 33 of the VAT Directive and the concept of goods ‘dispatched or transported by or on behalf of the supplier’, within the meaning of that provision, in the context of double taxation due to the different treatment, by two Member States, of the same transaction, a supply of goods involving cross-border dispatch or transport. That classification has an effect on the determination of the place where the taxable transaction is carried out and of the Member State responsible for the purposes of collecting VAT.
The Court was also asked about the scope of the obligation of cooperation between the tax authorities of the Member States with regard to determining the place of supply of the goods at issue, pursuant to Regulation No 904/2010, and had to rule on whether it is possible for the tax authorities of the Member State in which the goods are located when the transport ends to come, regarding the same transaction, to a different conclusion from that of the tax authorities of the Member State in which the supplier is established, resulting in double taxation of the taxable person.
In that case, KrakVet, a company incorporated under Polish law that sells products for animals, offered its clients residing in Hungary, via its website, the possibility of entrusting delivery of goods to a Polish carrier that worked in collaboration with it, those clients remaining, however, free to choose another carrier. If the purchaser chose to make use of the recommended carrier, he or she would conclude a contract with that carrier, which delivered the goods to the warehouses of two courier companies established in Hungary, from which the goods were distributed by a Hungarian carrier to the final consumers. Payment of the price of the goods was made upon delivery to the courier service or by advance payment into a bank account.
As the Polish tax authorities took the view that the place of taxation of KrakVet’s commercial activities was in Poland, KrakVet paid VAT in that country. However, the Hungarian tax authorities carried out a posteriori checks of the VAT returns and initiated administrative tax proceedings against KrakVet, in the course of which those authorities consulted the Polish tax authorities. At the end of those proceedings, the Hungarian tax authorities found that the VAT on goods transported in Hungary had to be paid in Hungary and required KrakVet to pay a sum corresponding to the difference in taxation of VAT, a penalty and late-payment interest, plus a fine for failure to comply with its obligations to register with the Hungarian tax authorities.
KrakVet challenged before the referring court the decision issued by the Hungarian tax authorities that resulted in it paying VAT twice, claiming that it was contrary to EU law.
The Court ruled, first of all, that the VAT Directive and the relevant provisions of Regulation No 904/2010 do not preclude the tax authorities of a Member State from being able, unilaterally, to subject transactions to VAT treatment different from that under which they have already been taxed in another Member State. It thus pointed out that that regulation is confined to enabling administrative cooperation for the purposes of exchanging information that may be necessary for the tax authorities of the Member States and does not therefore govern the powers of those authorities to carry out the classification of the transactions concerned under the VAT Directive.
That regulation does not lay down an obligation requiring the tax authorities of two Member States to cooperate in order to reach a common solution as regards the treatment of a transaction for VAT purposes and does not provide that the tax authorities of one Member State are bound by the classification given to that transaction by the tax authorities of another Member State. The correct application of the VAT Directive must however make it possible to avoid double taxation and to ensure fiscal neutrality. Where there is divergence between the Member States in the tax treatment of a transaction, it is therefore for the national courts to refer the matter to the Court of Justice for the purposes of interpreting the provisions of EU law. If it transpires that VAT has already been overpaid in a Member State, the right to a refund of charges levied in that Member State in breach of the rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court. The Member State concerned is therefore required, in principle, to repay charges levied in breach of EU law.
Next, the Court examined the rules laid down by the VAT Directive with regard to determining the place where taxable transactions are carried out in cases of supply of goods with transport. The Court recalled that, in accordance with Article 32 of that directive, where goods are dispatched or transported by the supplier, or by the customer, or by a third person, the place of supply is deemed to be the place where the goods are located at the time when dispatch or transport of the goods to the customer begins. However, by way of derogation, Article 33 of that directive provides that the place of supply of goods dispatched or transported by or on behalf of the supplier from a Member State other than that in which dispatch or transport of the goods ends is deemed to be, subject to certain conditions, the place where the goods are located at the time when dispatch or transport of the goods to the customer ends.
Since consideration of the economic and commercial reality is a fundamental criterion for the application of the common system of VAT, the Court held that when, as in that case, goods sold by a supplier established in one Member State to purchasers residing in another Member State are delivered to those purchasers by a carrier recommended by that supplier, but with which the purchasers are free to enter into a contract for the purpose of that delivery, those goods must be regarded as dispatched or transported ‘by or on behalf of the supplier’ and the supply must be regarded as falling within the scope of Article 33 of the VAT Directive where the supplier’s role is predominant in terms of initiating and organising the essential stages of the dispatch or transport of those goods.
Lastly, the referring court took the view that the situation at issue in the main proceedings raised the question whether it was possible to regard KrakVet’s practice as abusive, KrakVet having benefited from the lower rate of VAT of the Member State in which it is established, since the provisions laid down by Article 33 of the VAT Directive were not applied to it. In that regard, the Court ruled that it is not necessary to find that transactions by which goods sold by a supplier are delivered to purchasers by a company recommended by that supplier constitute an infringement of the law when, on the one hand, there is a connection between the supplier and that company, but, on the other hand, the purchasers remain free to make use of another company or personally collect the goods, since those circumstances are not liable to affect the finding that the supplier and the transport company recommended by it are independent companies which engage, on their own behalf, in genuine economic activities.
(Reference for a preliminary ruling — Citizenship of the Union — Articles 18, 21 and 165 TFEU — Rules of a sports association — Participation in the national championship of a Member State by an amateur athlete holding the nationality of another Member State — Different treatment on the basis of nationality — Restriction on free movement)
SOURCE: Court of Justice of the European Union, Annual report 2019
In the judgment in TopFit and Biffi, delivered on 13 June 2019, the Court interpreted Articles 18, 21 and 165 TFEU in the context of a dispute between an amateur athlete of Italian nationality and the German national athletics association concerning the conditions for the participation of nationals of other Member States in German amateur sports championships in the senior category.
According to the Court, those articles preclude rules of a national sports association under which a citizen of the Union, who is a national of another Member State and who has resided for a number of years in the territory of the Member State where that association, in which he or she runs in the senior category and in an amateur capacity, is established, cannot participate in the national championships in those disciplines in the same way as nationals can, or can participate in them only ‘outside classification’ or ‘without classification’, without being able to progress to the final and without being eligible to be awarded the title of national champion, unless those rules are justified by objective considerations which are proportionate to the legitimate objective pursued, this being a matter for the referring court to verify.
First, the Court found that a citizen of the Union, such as the amateur athlete in that case, who has made use of his or her right to move freely, can legitimately rely on Articles 18 and 21 TFEU in connection with his or her practice of a competitive amateur sport in the society of the host Member State. In that respect, the Court referred in particular to the role of sport as a factor for integration in the society of the host Member State, as reflected in Article 165 TFEU.
The Court then held that the rules of a national sports association which govern the access of citizens of the Union to sports competitions are subject to the rules of the Treaty, in particular Articles 18 and 21 TFEU. In that respect, the Court noted that observance of the fundamental freedoms and the prohibition of discrimination on the basis of nationality provided for by the Treaty also apply to rules which are not public in nature but which are aimed at regulating gainful employment and the provision of services in a collective manner. That principle also applies in cases where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms guaranteed under the Treaty.
Finally, the Court concluded that, in that case, there was a difference in treatment which was liable to restrict the freedom of movement of the amateur athlete in question within the meaning of Article 21 TFEU since, even if such a citizen fulfils the conditions relating to the obligatory sporting performances and has had an entitlement to participate in the sports event through a club affiliated with the national athletics association for at least one year, that citizen may not, on account of nationality, be permitted to participate in a national amateur running championship over short distances in the senior category or may be permitted to participate only in part. The Court added that the rules of a sports association can also lead to athletes who are nationals of a Member State other than the Federal Republic of Germany being less well supported by the sports clubs to which they are affiliated as compared with national athletes, since those clubs will have less interest in investing in athletes who have no prospect of participating in the national championships, which is why athletes who are nationals of other Member States would be less able to integrate themselves into the sports club to which they are affiliated and, consequently, into the society of the Member State in which they are resident.
According to the Court, such a restriction on the freedom of movement of citizens of the Union can be justified only where it is based on objective considerations and is proportionate to the legitimate objective pursued by the rules at issue, which is for the national court to determine. Indeed, it appears to be legitimate to limit the award of the title of national champion in a particular sporting discipline to a national of the relevant Member State and consider that nationality requirement to be a characteristic of the title of national champion itself. However, it is vital that the restrictions resulting from the pursuit of that objective should observe the principle of proportionality, as that objective does not systematically justify any restriction on the participation of non-nationals in the national championships.
It is for the national court to examine whether there are potential justifications by taking into account the objective, arising from a combined reading of the provisions of Article 21(1) and Article 165 TFEU, of increased openness in competitions and the importance of integrating residents, in particular long-term residents, in the host Member State. In any event, the total non-admission of a non-national athlete to a national championship on account of nationality seems to be disproportionate where there is a mechanism for the participation of such an athlete in such a championship, at the very least in the heats and/or without classification.
(Reference for a preliminary ruling – Directive 96/71/EC – Article 1(1) and (3) and Article 2(1) – Posting of workers in the framework of the provision of services – Drivers working in international road transport – Scope – Concept of ‘posted worker’ – Cabotage operations – Article 3(1), (3) and (8) – Article 56 TFEU – Freedom to provide services – Collective agreements declared universally applicable)
SOURCE: Court of Justice of the European Union, Annual report 2020
By its judgment in Federatie Nederlandse Vakbeweging, delivered on 1 December 2020, the Court, sitting as the Grand Chamber, ruled on a case in which workers from Germany and Hungary had been employed as drivers under charter contracts for international transport operations concluded between a transport undertaking with offices in Erp (Netherlands), Van den Bosch Transporten BV, and two companies owned by the same group, one incorporated under German law and the other under Hungarian law, to which the drivers were linked. As a rule, during the period concerned, the charter operations started in Erp and the journeys ended there, but most of the transport operations carried out under the charter contracts at issue took place outside the territory of the Netherlands. Van den Bosch Transporten, as member of the Netherlands Association for Goods Transport, was covered by the collective labour agreement applicable to that sector (‘the “Goods Transport” CLA’), concluded between that association and the Federatie Nederlandse Vakbeweging (Netherlands Federation of Trade Unions; ‘the FNV’). A second collective labour agreement, applicable inter alia to the professional goods transport by road sector, and the provisions of which were essentially identical to those of the ‘Goods Transport’ CLA, had been declared universally applicable, unlike the first collective labour agreement. However, under national law, undertakings covered by the ‘Goods Transport’ CLA were exempt from that second agreement, provided they complied with the first one.
According to the FNV, when Van den Bosch Transporten used drivers coming from Germany and Hungary, it had to apply to them the basic conditions of employment under the ‘Goods Transport’ CLA, in their capacity as posted workers within the meaning of Directive 96/71. Since the basic conditions of employment stipulated in that agreement were not applied to those drivers, the FNV brought an action against those three transport undertakings, which was upheld at first instance by interim judgment. However, that judgment was set aside on appeal. The appeal court held, inter alia, that the charter operations at issue fell outside the scope of Directive 96/71, as the only matters covered by that directive were charter operations carried out, at least primarily, ‘in the territory’ of another Member State.
It was against that background that, on appeal by the FNV, the Hoge Raad der Nederlanden (Supreme Court, Netherlands) referred to the Court for a preliminary ruling a series of questions relating essentially to the conditions on which it may be concluded that workers are posted ‘to the territory of a Member State’ in the international road-transport sector.
The Court stated first of all that Directive 96/71 is applicable to the transnational provision of services in the road-transport sector. That directive applies, as a rule, to any transnational provision of services involving the posting of workers, irrespective of the economic sector concerned, and, unlike a classic liberalisation instrument, it pursues a series of objectives relating to the need to promote the transnational provision of services while ensuring fair competition and guaranteeing respect for the rights of workers. The fact that the legal basis of that directive does not include provisions relating to transport cannot therefore exclude from its scope the transnational provision of services in the sector of road-transport activities, in particular goods transport.
As regards, next, the status of the drivers concerned as posted workers, the Court recalled that, in order for a worker to be regarded as being posted ‘to the territory of a Member State’, the performance of his or her work must have a sufficient connection with that territory. The existence of such a connection is determined in the context of an overall assessment of factors such as the nature of the activities carried out by the worker concerned in that territory, the degree of connection between the worker’s activities and the territory of each Member State in which the worker operates, and the proportion represented by those activities in the entire transport service.
In particular, the fact that a driver working in international road transport, who has been hired out by an undertaking established in one Member State to an undertaking established in another Member State, receives the instructions relating to his or her tasks, starts or finishes them at the place of business of that second undertaking is not sufficient in itself to consider that that driver has been posted to the territory of that other Member State for the purposes of Directive 96/71, provided that the performance of that driver’s work does not have a sufficient connection with that territory on the basis of other factors.
The Court also stated that the existence of a group affiliation between undertakings that are parties to a contract for the hiring-out of workers does not, as such, determine the degree of connection between the performance of the work and the territory of a Member State to which those workers are sent. Therefore, the existence of such a group affiliation is not relevant in order to determine whether there has been a posting of workers.
As regards the specific case of cabotage operations, to which Directive 96/71 applies as stated in Regulation No 1072/2009, the Court noted that those transport operations take place entirely within the territory of the host Member State, which permits the inference that the performance of the driver’s work in the course of such operations has a sufficient connection with that territory. The duration of cabotage operations is irrelevant when determining whether there has been such a posting, without prejudice to the possibility available to Member States under that directive not to apply certain provisions of the directive, in particular as regards minimum rates of pay, when the length of the posting does not exceed one month.
Lastly, the Court recalled that, where workers are posted, Member States must, under that directive, ensure that the undertakings concerned guarantee workers posted to their territory a certain number of terms and conditions of employment laid down, inter alia, by collective agreements which have been declared universally applicable, namely those which must be observed by all undertakings in the geographical area and in the profession or industry concerned. The question of whether a collective agreement has been declared universally applicable must be assessed by reference to the applicable national law. The Court stated, however, that that definition also covers a collective labour agreement which has not been declared universally applicable, but compliance with which is a precondition, for undertakings covered by it, for exemption from another collective labour agreement which, for its part, has been declared universally applicable and the provisions of which are essentially identical to those of that other collective labour agreement.
(Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Directive 2004/38/EC — Beneficiaries — Dual nationality — Union citizen having acquired the nationality of the host Member State while retaining her nationality of origin — Right of residence in that Member State of a third-country national who is a family member of the Union citizen)
SOURCE: Court of Justice of the European Union, Annual report 2017
On 14 November 2017, by its judgment in Lounes, the Court, sitting as the Grand Chamber, ruled on the derived right of residence on which a third country national may rely, on the basis of Article 21 TFEU, as a family member of a Union citizen, in the Member State in which that citizen resided before acquiring the nationality of that Member State in addition to the nationality of origin. In this case, the applicant, an Algerian national, had entered the United Kingdom on a six-month visitor visa and had subsequently remained illegally in British territory. There, he met a Spanish national who had become a naturalised British citizen while retaining her Spanish nationality. Following their marriage, the applicant applied to the United Kingdom for a residence card as a family member of a national of the European Economic Area (EEA). The United Kingdom authorities refused that application on the basis that, under the UK legislation transposing Directive 2004/38, his wife had ceased to be regarded as an ‘EEA national’ following her acquisition of British citizenship and that the applicant could not therefore claim a residence card as a family member of an EEA national. Proceedings having been brought before it by the applicant in relation to that refusal, a UK court asked the Court whether that decision and the UK legislation were compatible with EU law.
In the first place, the Court noted that Directive 2004/38, which lays down the conditions governing the exercise of the right of Union citizens to move and reside freely within the territory of the Member States, is not intended to govern the residence of a Union citizen in the Member State of which he is a national, since, under a principle of international law, he enjoys an unconditional right of residence there. Accordingly, in the Court’s view, Directive 2004/38 ceased to govern the residence in the United Kingdom of the applicant’s wife when she acquired British nationality. Consequently, her husband — the applicant — cannot benefit from a derived right of residence in the United Kingdom on the basis of the directive.
In the second place, the Court considered whether the applicant could be accorded a derived right of residence in that Member State on the basis of Article 21(1) TFEU, which provides that every citizen of the Union has the right to move and reside freely within the territory of the Member States. The Court stated that if the rights conferred on Union citizens by that provision — in particular the right to lead a normal family life, together with their family members, in the host Member State — are to be effective, citizens in a situation such as that of the applicant’s wife must be able to continue to enjoy that right in the host Member State, after they have acquired the nationality of that Member State in addition to their nationality of origin, and must be able to build a family life with their third-country national spouse. Thus, the Court held that a third country national in the applicant’s situation is eligible for a derived right of residence in the host Member State, under Article 21(1) TFEU, subject to conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.
(Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Right of Union citizens to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 3 — Beneficiaries — Family members of the Union citizen — Article 2(2)(a) — Definition of ‘spouse’ — Marriage between persons of the same sex — Article 7 — Right of residence for more than three months — Fundamental rights)
SOURCE: Court of Justice of the European Union, Annual report 2018
By its judgment in Coman and Others, delivered on 5 June 2018, the Court, sitting as the Grand Chamber, provided clarification on the right to respect for private and family life as recognised by the Charter and the derived right of residence on which a third country national may rely, on the basis of Article 21 TFEU, in his capacity as husband of an EU citizen where the spouses are of the same sex. This reference for a preliminary ruling concerned a Romanian national and a US national who were married in Brussels in 2010. In 2012, they applied to the Romanian authorities to allow the US national, in his capacity as member of the Romanian national’s family, to reside lawfully in Romania for more than 3 months. That application was based on Directive 2004/38, which enables the spouse of an EU citizen who has exercised his freedom of movement to join his husband in the Member State in which the husband is living. The Romanian authorities informed them that the US national had a right of residence for only 3 months, on the ground that he could not be classified in Romania as a ‘spouse’ of an EU citizen because that Member State does not recognise marriage between persons of the same sex. Following an objection of unconstitutionality raised by the homosexual couple before the Romanian Constitutional Court, that court asked the Court of Justice whether the US national concerned could be regarded as the ‘spouse’ of an EU citizen who has exercised his freedom of movement and must therefore be granted a right of permanent residence in Romania.
The Court pointed out, first of all, that the term ‘spouse’ within the meaning of Directive 2004/38 is genderneutral and may therefore cover the same-sex spouse of the Union citizen. It went on to make clear that the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that State, for the sole purpose of granting a derived right of residence to a third country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and falls within the competence of the Member States. That obligation does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex; it is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that State, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law. An obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third country national does not thus undermine the national identity or pose a threat to the public policy of the Member State concerned.
Lastly, the Court pointed out that, as regards the term ‘spouse’ within the meaning of Directive 2004/38, the right to respect for private and family life guaranteed by Article 7 of the Charter is a fundamental right. That right has the same meaning and the same scope as the right guaranteed by Article 8 of the ECHR. According to the case-law of the ECtHR, the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.
Thus, in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC, in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third country national a right of residence in its territory on the ground that the law of that Member State does not recognise marriage between persons of the same sex.
(Reference for a preliminary ruling — Citizens of the European Union — Directive 2004/38/EC — Article 10(1) — Application for a residence card as a family member — Issuance — Time limit — Adoption and notification of the decision — Consequences of non-compliance with the period — Procedural autonomy of Member States — Principle of effectiveness)
SOURCE: Court of Justice of the European Union, Annual report 2018
(…) in the judgment in Diallo delivered on 27 June 2018, the Court was required to provide guidance on the period within which a decision concerning the issue of a residence card of a family member of a Union citizen must be adopted and notified under Article 10(1) of Directive 2004/38, and the consequences of the prescribed period being exceeded. In the case in point, a Guinean national had applied, as a relative in the ascending line of a child of Netherlands nationality domiciled in Belgium, for a residence card of a family member of a Union citizen. The Belgian authorities refused that application, notifying him of their decision 6 months and 9 days after submission of the application. After the judicial annulment of that decision on the ground of failure to state reasons, the Belgian authorities adopted a new refusal decision, almost 1 year after submission of the application. According to national case-law, which the Belgian State claimed was applicable in this instance in the absence of specific rules under EU law in that regard, the authorities had, following the judicial annulment of its initial decision, a new period of 6 months for the purposes of Article 10(1) of Directive 2004/38 to deal with the application. The person concerned challenged that decision, arguing in particular that granting the competent national authority a further period of 6 months, following the annulment of an initial decision, rendered Article 10(1) of Directive 2004/38 redundant.
The Court made clear that the competent national authorities must, within the mandatory period of 6 months after the submission of the application for a residence card provided for in Article 10(1) of Directive 2004/38, examine the application, adopt a decision, notify that decision — in the positive or the negative — and, if it is positive, issue a residence card to the applicant. As regards the consequences of exceeding that sixth-month period, the Court pointed out that the residence card in question may not be issued to a third country national who does not meet the requirements set out in Directive 2004/38 for its allocation. In those circumstances, while there is nothing to prevent national legislation from providing that silence on the part of the competent administration for a period of 6 months from the lodging of the application constitutes a refusal, the very terms of Directive 2004/38 preclude that silence from constituting an acceptance. Accordingly, the competent national authorities may not be required to issue automatically a residence card of a family member of a Union citizen where the period of 6 months is exceeded, without finding beforehand that the person concerned actually meets the conditions for residing in the host Member State in accordance with EU law.
Lastly, concerning the effects of the judicial annulment of decisions refusing to issue a residence card, the Court held that, in such a situation, the authorities are required to adopt a new decision within a reasonable period of time, which cannot, in any case, exceed the period referred to in Article 10(1) of Directive 2004/38. The principle of effectiveness and the objective of rapid processing of applications inherent to Directive 2004/38 preclude national authorities automatically being allowed a new period of 6 months following the judicial annulment of an initial decision refusing to issue a residence card. The Court stated in that regard that the automatic opening of a new period of 6 months would render excessively difficult the exercise of the right of the family member of a Union citizen to obtain a decision on his application for a residence card.