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10,700 | 27 Finally, regarding the fact that the contested condition applies without distinction, according to settled case-law the requirement of equal treatment laid down both in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see in particular Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11; Case C-27/91 URSSAF v Le Manoir [1991] ECR I-5531, paragraph 10; Commission v Luxembourg, cited above, paragraph 9; Case C-419/92 Scholz v Opera Universitaria di Cagliari and Cinza Porcedda [1994] ECR I-505, paragraph 7, and, very recently, O' Flynn, cited above, paragraph 17). | 26 It should also be stressed that the objective of reducing water pollution caused by effluent pursued by such general programmes does not necessarily correspond to the more specific objective of Directive 78/659, which is to improve the quality of fresh waters in order to support fish life. | 0 |
10,701 | 8 Article 12(1) of the Directive sets out an exhaustive list of taxes and duties other than capital duty which, by derogation from Article 10, may be levied on capital companies in respect of transactions listed therein (see Case 36/86 Dansk Sparinvest [1988] ECR 409, paragraph 9). Article 12(1)(e) of the Directive mentions `duties paid by way of fees or dues'.
The relevant national legislation | 15 It thus appears that Regulation No 1408/71 derogates from the general rule of attachment to the State of employment only in specific situations and on grounds of practicality and efficacy which render attachment to the State of residence more appropriate and more in conformity with the interests of frontier workers . | 0 |
10,702 | 78. Finally, with regard to the approach adopted by the Court in the case of Commission v Austria , it is sufficient to note that that approach was justified in particular by the fact, described in paragraph 60 of that judgment, that the Act of Accession did not provide, with respect to the Republic of Austria, for any derogation or transitional period in respect of the directives in question in the case which gave rise to that judgment. | 74. Removing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful and seeks to re-establish the previous situation ( Italy and SIM 2 Multimedia , paragraph 66). | 0 |
10,703 | 19. It is settled case-law that, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19, and Manninen , paragraph 19). | 24. It thus follows from the wording of Article 4 of Directive 92/83 that a brewery which wishes to benefit from the reduced rate of duty on beer must meet two conditions, that is to say, a quantitative condition relating to its maximum annual production of beer, and a qualitative condition concerning that brewery’s independence from any other brewery. | 0 |
10,704 | 23. It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of the provisions of European Union law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (see, inter alia, Gottwald , paragraph 17 and case-law cited). | 55. The question remains to be answered whether, in order to achieve that objective of protection of the health of young persons with at least an equivalent level of effectiveness, there are other methods less restrictive of the principle of free movement of goods and capable of replacing the method at issue. | 0 |
10,705 | 14 In Case 228/87 Criminal proceedings against X [1988] ECR 5099, also concerning Directive 80/778, the Court held that derogations from the directive must be interpreted strictly (paragraph 10) and that the term "emergencies" within the meaning of Article 10(1) of the directive must be construed as meaning urgent situations in which the competent authorities are required to cope suddenly with difficulties in the supply of water intended for human consumption (paragraph 14). | 39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003. | 0 |
10,706 | 32. In that regard, however, it is quite obvious that the national legislation at issue in the main proceedings, relating to the possible grant of an exemption in relation to the opening periods of a pharmacy located in a specific municipal area of the municipality of Rome, cannot, in itself or by its application, affect trade between Member States within the meaning of Articles 81 EC and 82 EC (see, a contrario , Case 8/72 Vereniging van Cementhandelaren v Commission [1972] 977, paragraph 29; Case C‑179/90 Merci convenzionali porto di Genova [1991] ECR I‑5889, paragraphs 14 and 15; and Case C‑35/99 Arduino [2002] ECR I‑1529, paragraph 33). | 21 However, inasmuch as Article 73b of the EC Treaty substantially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty, which have since been replaced by Article 73b et seq. of the EC Treaty, the nomenclature in respect of movements of capital annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of Article 73b et seq., subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive. | 0 |
10,707 | 43. Thus, Article 6(3) of the Habitats Directive does not authorise a Member State to enact national legislation which allows the environmental impact assessment obligation for development plans to benefit from a general waiver because of the low costs entailed or the particular type of work planned (see, to that effect, Case C‑256/98 Commission v France [2000] ECR I‑2487, paragraph 39). | 92. In addition, it is not possible for the referring court to allocate a lower step retroactively to the oldest civil servants because of considerations relating to the protection of legitimate expectations and acquired rights. | 0 |
10,708 | 34. The first paragraph of Article 1(a) of the Directive defines waste as ‘any substance or object in the categories set out in Annex I [to that directive] which the holder discards or intends ... to discard’. The annex referred to clarifies and illustrates that definition by providing a list of categories of substances and objects which may be classified as ‘waste’. That list is intended only as guidance, however, and the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 26; Case C‑1/03 Van de Walle and Others [2004] ECR I‑7613, paragraph 42; and Case C‑252/05 Thames Water Utilities [2007] ECR I‑3883, paragraph 24). | 61. It is true that those objectives — the reduction of betting and gaming opportunities, and the combating of criminality by making the operators active in the sector subject to control and channelling betting and gaming into the systems thus controlled — are among those recognised by case‑law as capable of justifying restrictions on fundamental freedoms in the betting and gaming sector ( Placanica and Others , paragraphs 46 and 52). | 0 |
10,709 | 56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule.
"
8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held:
"66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ...
...
69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55).
...
73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities.
74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ...
"
9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds:
"77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... .
78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37).
"
The appeal
10. By its appeal, Interporc claims that the Court should:
─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs;
─ annul the contested decision in its entirety;
─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance.
11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment).
12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment.
Admissibility of the appeal
Arguments of the parties
13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance.
14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly.
Findings of the Court
15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).
16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24).
17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49).
18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based.
19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance.
20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule.
21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively.
22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed.
23. It follows from the foregoing that the appeal is admissible.
Substance
The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file
Arguments of the parties
24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal).
25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers.
26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal.
27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90.
Findings of the Court
28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment.
29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81).
30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56).
31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule.
32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case.
33. It follows that the first plea must be rejected.
The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order
Arguments of the parties
34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty.
35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed.
36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred.
37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned.
Findings of the Court
38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions.
39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights.
40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.
41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied.
42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature.
43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case.
44. The first part of the second plea must therefore be rejected.
The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule
Arguments of the parties
45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case.
46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule.
47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case.
Findings of the Court
48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27).
49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author.
50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents.
51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author.
52. The second part of the second plea must therefore be rejected as unfounded.
The third part of the second plea alleging infringement of the obligation to state reasons
Arguments of the parties
53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities.
54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea.
Findings of the Court
55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48).
56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24). | 33. In that respect, it should be noted that that Directive does not define ‘communication to the public’. | 0 |
10,710 | 69. Nor can such a reassessment and recovery practice be justified under Article 17(6) and (7) of the Sixth Directive. Those two provisions are not applicable to a situation such as that at issue in the cases in the main proceedings, since they govern the existence of the right to deduct itself and not the procedure for exercising it. Moreover, Article 17(6) applies only to expenditure which is not strictly business expenditure, such as luxuries, amusements or entertainment, whereas it is common ground that no such expenditure is involved in the cases in the main proceedings. As to the possibility open to the Member States under Article 17(7), it need merely be pointed out that they cannot avail themselves of it unless they have first used the consultation procedure provided for in Article 29 (see, to that effect, Case C‑409/99 Metropol and Stadler [2002] ECR I‑81, paragraphs 61 to 63, and Case C‑228/05 Stradasfalti [2006] ECR I‑8391, paragraph 29), which, according to the file, is not the case in the Italian Republic. | 26 On the other hand, its second question is manifestly irrelevant to the result of the case in the main proceedings. | 0 |
10,711 | 36. First, it should be borne in mind that Article 1(1) of Regulation No 2988/95 introduces ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law’ in order, as is clear from the third recital in the preamble to the regulation, to combat ‘fraud against the Communities’ financial interests … for all areas …’ (Case C‑278/02 Handlbauer [2004] ECR I‑6171, paragraph 31). | 33 In this case the reasoning of the Court of First Instance at paragraph 51 of the judgment under appeal, according to which the damage suffered by each of the applicants amounted ex aequo et bono to BFR 500 000, does not enable the Court to acquaint itself with the criteria taken into account for the purposes of determining that amount. In the absence of such information, the Court is not, however, in a position to decide whether the judgment under appeal is in breach of the principle of proportionality on that point. | 0 |
10,712 | 45. However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer ( Marshall , paragraph 24). | 46. So far as concerns the treatment of VAT that has been improperly invoiced because there is no taxable transaction, it follows from Directive 2006/112 that the two traders involved are not necessarily treated identically in so far as the issuer of the invoice has not corrected it, as is apparent from paragraphs 33 to 37 above. | 0 |
10,713 | 10 As the Court stated in paragraph 15 of its judgment in Case 5/88 Wachauf v Germany [1989] ECR 2609, the surrender of a tenanted holding upon the expiry of a lease has comparable legal effects, within the meaning of Article 5(3) of Regulation No 1371/84, to those brought about by the transfer of the holding upon the grant of the lease, for both transactions entail a change in the possession of the production units in question within the contractual relations created by the lease. | 38. In order to examine whether the measure at issue in the main proceedings goes beyond what is necessary for achieving its objective and unduly prejudices the interests of workers who reach the age of 67, that measure must be viewed against its legislative background and account must be taken both of the hardship that it may cause to the persons concerned and of the benefits derived from it by society in general and by the individuals who make up society ( Rosenbladt , paragraph 73). | 0 |
10,714 | 51
Consequently, there is no connection between, on the one, hand, the operative event for the levy at issue in the cases in the main proceedings and, on the other, the actual production of electricity by wind turbines, and even less the consumption of electricity generated by them (see, by analogy, judgments of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraphs 22 and 23; of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraphs 61 to 65; and of 1 October 2015, OKG, C‑606/13, EU:C:2015:636, paragraphs 31 to 35). | 61. In that regard, the Court has held, in connection with certain fuels covered by Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duty on mineral oils (OJ 1992 L 316, p. 19), which was replaced by Directive 2003/96, that a national environmental protection tax levied on aviation which is calculated by reference to data on fuel consumption and emissions of hydrocarbons and nitric oxide during an average flight by the type of aircraft used must be regarded as a tax levied on the consumption of such fuels, as there is a direct and inseverable link between fuel consumption and the polluting substances which are emitted in the course of such consumption (see, to that effect, judgment in Braathens , C‑346/97, EU:C:1999:291, paragraphs 22 and 23). | 1 |
10,715 | 30. First of all, it must be recalled that the Member States, when defining what land is to be regarded as being ‘building land’, must have regard to the objective pursued by Article 135(1)(k) of the VAT Directive, which seeks to exempt from VAT only supplies of land which has not been built on and is not intended to support a building (see, to that effect, Gemeente Emmen , paragraphs 24 and 25 and Don Bosco Onroerend Goed , paragraph 43). | 79. Or, il résulte de la jurisprudence de la Cour qu’un État membre ne saurait être tenu de prendre en considération, aux fins de l’application de sa propre législation fiscale, les conséquences éventuellement défavorables découlant des particularités d’une réglementation d’un autre État membre applicable à un immeuble situé sur le territoire de ce dernier État et appartenant à un contribuable résidant sur le territoire du premier État (voir, par analogie, arrêts du 6 décembre 2007, Columbus Container Services, C‑298/05, Rec. p. I‑10451, point 51; du 28 février 2008, Deutsche Shell, C‑293/06, Rec. p. I‑1129, point 42, et Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt, précité, point 49). | 0 |
10,716 | 36. As regards medical services, it is apparent from the case-law that Article 13A(1)(b) of the Sixth Directive covered all services supplied in a hospital environment while Article 13A(1)(c) thereof covered medical services provided outside such a framework, both at the private address of the person providing the care and at the patient’s home or at any other place (see, to that effect, Case C‑141/00 Kügler [2002] ECR I‑6833, paragraph 36). It follows that Article 13A(1)(b) and (c) of the Sixth Directive, which had separate fields of application, were intended to regulate all exemptions of medical services in the strict sense (see Kügler , paragraph 36, and Case C‑106/05 L.u.P. [2006] ECR I‑5123, paragraph 26). | 60. In so far as concerns the first and second parts of the first ground of appeal, the Court notes that the question whether the grounds of a judgment of the General Court are incoherent is indeed a question of law which may be raised on appeal, since the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning (see, to that effect, the order of 29 November 2011 in Case C‑235/11 P Evropäiki Dynamiki v Commission [2011] ECR I‑0000, paragraphs 29 and 30, and the judgment of 19 December 2012 in Case C‑314/11 P Commission v Planet [2012] ECR I‑0000, paragraphs 63 and 64). | 0 |
10,717 | 29 That is because merely exercising its monopoly will enable it to distort in its favour the equal conditions of competition between the various operators on the market in dock-work services (Case C-260/89, paragraph 37, and Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 25). | 118. As the Court of First Instance rightly pointed out in paragraphs 100 and 110 of the judgment under appeal, although it is true that a licence has an economic value, that value depends on the time when each of the operators concerned entered the market (see also Case C‑462/99 Connect Austria [2003] ECR I‑5197, paragraph 93). | 0 |
10,718 | 15. For a tax, or part of a tax, to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules. In the event of such hypothecation, the revenue from the tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market (see, to that effect, Case 47/69 France v Commission [1970] 487, paragraphs 17, 20 and 21, and the judgment in SWNB , paragraph 26). | 30. It follows that, in the system established by the Regulation for determining the competence of the courts of the Member States, each debtor constituting a distinct legal entity is subject to its own court jurisdiction. | 0 |
10,719 | 39. The localisation of an act of re-utilisation in the territory of the Member State to which the data in question is sent depends on there being evidence from which it may be concluded that the act discloses an intention on the part of its performer to target persons in that territory (see, by analogy, Pammer and Hotel Alpenhof , paragraphs 75, 76, 80 and 92; L’Oréal and Others , paragraph 65; and Donner , paragraphs 27 to 29). | 51 Finally, it must be examined whether, as the United Kingdom in particular observes, there are reasons specific to Directive 83/189 which preclude it from being interpreted as rendering technical regulations adopted in breach of the directive inapplicable to third parties. | 0 |
10,720 | 84. It follows from the foregoing that the justification based on the need to maintain the effectiveness of fiscal supervision can only be accepted where the legislation of a Member State makes entitlement to a tax advantage dependent on the satisfaction of conditions compliance with which can be verified only by obtaining information from the competent authorities of a non-Member State and where, because that non-Member State is not bound under an agreement to provide information, it proves impossible to obtain that information from it (see Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 67 and case-law cited). | 36 Consequently, the prohibition of discrimination on grounds of nationality laid down in Article 48 of the Treaty must be regarded as applying to private persons as well. | 0 |
10,721 | 45. Article 174 EC states that Community policy on the environment is to aim at a high level of protection and is based, inter alia, on the principle that the polluter should pay. That provision is therefore confined to defining the general environmental objectives of the Community, since Article 175 EC confers on the Council of the European Union responsibility for deciding what action is to be taken, where appropriate following the codecision procedure with the European Parliament (see, to that effect, Case C‑379/92 Peralta [1994] ECR I‑3453, paragraphs 57 and 58). | 19 ON THE OTHER HAND , IT MUST BE ACKNOWLEDGED THAT THE APPLICANT IS ENTITLED TO A GESTURE FROM THE COMMISSION IN COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE HAS SUFFERED AS A RESULT OF THE DEFENDANT ' S CLEAR LACK OF VIGOUR IN FULFILLING ITS DUTY TO PROVIDE PROTECTION . IN THAT RESPECT THE AWARD OF SYMBOLIC DAMAGES APPEARS TO OFFER SUITABLE SATISFACTION . THE COMMISSION SHOULD THEREFORE BE ORDERED TO PAY TO THE APPLICANT A SUM CORRESPONDING TO ONE EUROPEAN MONETARY BY WAY OF COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE HAS SUFFERED .
| 0 |
10,722 | 27. As the Court has previously held, it is clear from the wording of Article 13(C) of the Sixth Directive that Member States may, by virtue of this power, allow persons benefiting from the exemptions provided for by that directive to waive the exemption in all cases or within certain limits or subject to certain detailed rules (see Case 8/81 Becker [1982] ECR 53, paragraph 38). | 31. It must be borne in mind that the term ‘part’ implies a whole for the operation of which the part is essential ( Peacock , paragraph 21, and Case C-276/00 Turbon International [2002] ECR I-1389, paragraph 30). | 0 |
10,723 | 35 It has been consistently held that the second subparagraph of Article 40(3) of the Treaty, the aim of which is to prohibit discrimination in the field of the common agricultural policy, is merely a specific expression of the general principle of equal treatment, a fundamental principle of Community law, which requires that comparable situations are not to be treated differently and different situations are not to be treated alike unless such treatment is objectively justified (Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25). | 25 It should be noted in the first place that the Court has consistently held that the principle of non-discrimination between producers or consumers in the Community, laid down in the second subparagraph of Article 40 ( 3 ) of the Treaty, means that comparable situations are not to be treated differently and that different situations are not to be treated alike unless such treatment is objectively justified . It follows that the measures taken under the common organization of the market, and in particular its intervention mechanisms, must not be differentiated according to regions and other conditions relating to production or consumption, except on the basis of objective criteria which ensure that the advantages and disadvantages are distributed proportionately among those concerned, without any distinction being made between the territories of the Member States . | 1 |
10,724 | 46. Thus, the position of a Turkish worker who has, in the past, satisfied the conditions laid down in the third indent of Article 6(1) of that decision is no longer dependent on the continuing existence of the conditions for access to the rights laid down in the three indents of that paragraph. Such a worker must be regarded as being sufficiently integrated in the host Member State to be able temporarily to interrupt his employment relationship. Any other interpretation would deprive of its substance that worker’s right of free access to any paid employment of his choice (see Tetik , paragraph 31, and Dogan , paragraphs 14, 18 and 19). | 106. Dans ces conditions, la dépendance fonctionnelle des registradores-liquidadores à l’égard des Communautés autonomes qui peuvent leur donner des instructions, de même que la soumission des registradores-liquidadores à un contrôle disciplinaire de la part de ces autorités, n’apparaissent pas comme déterminants pour la qualification de leur rapport juridique avec les Communautés autonomes au regard de l’article 4, paragraphe 4, de la sixième directive (voir également, en ce sens, arrêts précités Commission/Pays-Bas, point 14, et Ayuntamiento de Sevilla, point 12). | 0 |
10,725 | 22. The same conclusion is also valid for the other transactions set out in subparagraphs 1 and 3 to 6 of Article 13B(d) of the Sixth Directive. Thus, subparagraph 1 concerns credit; subparagraph 3, deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments; subparagraph 4, legal tender; subparagraph 5, shares and other securities, and subparagraph 6, management of special investment funds. Although those transactions, defined according to the nature of the services provided, do not necessarily have to be carried out by banks or other financial institutions (see, to that effect, SDC , paragraph 32; Case C‑305/01 MKG-Kraftfahrzeuge-Factoring [2003] ECR I‑6729, paragraph 64; and Case C‑169/04 Abbey National [2006] ECR I‑4027, paragraph 66), they relate, nevertheless, as a whole, to the sphere of financial transactions. | 60. First, as regards the balanced allocation between Member States of the power to tax, it should be recalled that such a justification may be accepted, in particular, where the system in question is designed to prevent conduct capable of jeopardising the right of a Member State to exercise its tax jurisdiction in relation to activities carried out in its territory (see, inter alia, Marks & Spencer , paragraph 46; Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 42; Oy AA , paragraph 54; and Aberdeen Property Fininvest Alpha , paragraph 66). | 0 |
10,726 | 56. That analysis and that of the terms ‘supply of goods’ and ‘supply of services’ show that those terms, which define taxable transactions under the Sixth Directive, are all objective in nature and apply without regard to the purpose or results of the transactions concerned (see, to that effect, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others [2006] ECR I-0000, paragraph 44). | 44. In fact, that analysis and that of the definitions of ‘supply of goods’ and ‘taxable person acting as such’ show that those terms, which define taxable transactions under the Sixth Directive, are all objective in nature and apply without regard to the purpose or results of the transactions concerned. | 1 |
10,727 | 73 As regards the substance of the complaint, where the authorities awarding the contract do not take the lowest price as the sole criterion for awarding the contract but have regard to various criteria with a view to awarding the contract to the most economically advantageous tender, they are required to state these criteria in the contract notice or the contract documents. Consequently, a general reference to a provision of national legislation cannot satisfy the publicity requirement (Beentjes, paragraph 35). | 33. Nevertheless, it must be stated that the European Union legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts (see, inter alia, Case C‑120/99 Italy v Council [2001] ECR I‑7997, paragraph 44, and Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 121). | 0 |
10,728 | 24. The judgments of the Court which Mr Vergani cites in support of the opposite proposition (Case 12/81 Garland [1982] ECR 359, paragraph 4; Barber , paragraph 10; and Case C‑33/89 Kowalska [1990] ECR I-2591, paragraph 7) are not at variance with that finding, since they concerned consideration which the worker received in respect of his employment from his employer. | 45. It should be added that it remains open to the host Member State to take the view that a national of another Member State who has recourse to social assistance no longer fulfils the conditions of his right of residence. In such a case the host Member State may, within the limits imposed by Community law, take a measure to remove him. However, recourse to the social assistance system by a citizen of the Union may not automatically entail such a measure (see, to that effect, Grzelczyk , paragraphs 42 and 43). | 0 |
10,729 | 22
In order to answer that question, it is appropriate first of all to note that the source of the general principle prohibiting discrimination on grounds of age, as given concrete expression by Directive 2000/78, is to be found, as is clear from recitals 1 and 4 of the directive, in various international instruments and in the constitutional traditions common to the Member States (see judgments in Mangold, C‑144/04, EU:C:2005:709, paragraph 74, and Kücükdeveci, C‑555/07, EU:C:2010:21, paragraphs 20 and 21). It is also apparent from the Court’s case-law that that principle, now enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, must be regarded as a general principle of EU law (see judgments in Mangold, C‑144/04, EU:C:2005:709, paragraph 75, and Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 21). | 75. The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law. Where national rules fall within the scope of Community law, which is the case with Paragraph 14(3) of the TzBfG, as amended by the Law of 2002, as being a measure implementing Directive 1999/70 (see also, in this respect, paragraphs 51 and 64 above), and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with such a principle (Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paragraphs 30 to 32). | 1 |
10,730 | 44 In that regard, it is settled case-law that Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33). | 69. Accordingly, Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that the minimum pay which the worker must receive, in accordance with point (b) of the second indent of Article 3(1) of the directive, for the minimum paid annual holidays corresponds to the minimum wage to which that worker is entitled during the reference period. | 0 |
10,731 | 24. Secondly, it must be recalled that, as recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. The EU legislature accordingly made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State (see Case C-162/09 Lassal [2010] ECR I-9217, paragraphs 32 and 37). | 24. However, even though proceedings do not come within the scope of Regulation No 44/2001, they may nevertheless have consequences which undermine its effectiveness, namely preventing the attainment of the objectives of unification of the rules of conflict of jurisdiction in civil and commercial matters and the free movement of decisions in those matters. This is so, inter alia, where such proceedings prevent a court of another Member State from exercising the jurisdiction conferred on it by Regulation No 44/2001. | 0 |
10,732 | 31
As a preliminary point, it should be noted that, according to established case-law developed in a number of areas of EU law, normal residence must be regarded as the place where the person concerned has established his permanent centre of interests (see, by analogy, judgments in Schäflein v Commission, 284/87, EU:C:1988:414, paragraph 9; Ryborg, C‑297/89, EU:C:1991:160, paragraph 19; Louloudakis, C‑262/99, EU:C:2001:407, paragraph 51; Alevizos, C‑392/05, EU:C:2007:251, paragraph 55; I, C‑255/13, EU:C:2014:1291, paragraph 44, and B., C‑394/13, EU:C:2014:2199, paragraph 26). | 34. Since Directive 2002/14 defined the group of persons to be taken into account at the time of that calculation, Member States cannot exclude from that calculation a specific category of persons initially included in that group. Thus, although that directive does not prescribe the manner in which the Member States are to take account of employees falling within its scope when calculating the thresholds of workers employed, it does nevertheless require that they be taken into account. | 0 |
10,733 | 28. However, according to Article 2(2) of Directive 80/987, it is for national law to specify the term ‘pay’ and to define it (Case C-520/03 Olaso Valero [2004] ECR I-12065, paragraph 31 and case-law cited). | 31. According to Article 2(2) of Directive 80/987, it is for national law to specify the term ‘pay’ and to define it ( Rodríguez Caballero, paragraph 27). In the circumstances, that directive therefore refers back to Spanish law. | 1 |
10,734 | 38. As the Court has repeatedly held, the right to deduct provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. In particular, the right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 43; Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 47; Case C-392/09 Uszodaépítő [2010] ECR I-8791, paragraph 34; and Commission v Hungary , paragraph 43). | 28. The prohibitive nature of costs must therefore be assessed as a whole, taking into account all the costs borne by the party concerned. | 0 |
10,735 | 35
In that regard, Article 13(1) of Regulation No 1408/71 provides that the persons to whom that regulation applies are to be subject to the legislation of a single Member State only, which therefore excludes — subject to the cases provided for in Articles 14c and 14f — any possibility of the overlapping of the national legislation of several Member States in respect of one and the same period (see, to that effect, the judgments of 5 May 1977, Perenboom, 102/76, EU:C:1977:71, paragraph 11, and 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 36). | 10 It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties, as defined in the relevant headings of the Common Customs Tariff and the notes to the sections or chapters. Likewise, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (see the judgment in Case C-395/93 Neckermann Versand v Hauptzollamt Frankfurt am Main-Ost [1994] ECR I-4027, paragraph 5). | 0 |
10,736 | 8 First of all, the Court has consistently held that, whereas it is not for the Court, in the context of Article 177 of the Treaty, to rule on the compatibility of a national law with Community law, it does have jurisdiction to provide the national court with all the elements of interpretation under Community law to enable it to assess that compatibility for the purpose of deciding the case before it (see for example Case 369/89 Piageme v BVBA Peeters [1991] ECR I-2971, paragraph 7). | 22 As the Commission has observed, the concentration of the monopolies to broadcast and retransmit in the hands of a single undertaking gives that undertaking the possibility both to broadcast its own programmes and to restrict the retransmissions of programmes from other Member States. That possibility, in the absence of any guarantee concerning the retransmission of programmes from other Member States, may lead the undertaking to favour its own programmes to the detriment of foreign programmes. Under such a system equality of opportunity as between broadcasts of its own programmes and the retransmission of programmes from other Member States is therefore liable to be seriously compromised. | 0 |
10,737 | 31. The Court can decline to rule on a request for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or to its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑160/09 Ioannis Katsivardas – Nikolaos Tsitsikas [2010] ECR I‑4591, paragraph 27 and the case‑law cited). | 70. Dans ce contexte, il convient de rappeler que ces deux conditions, en l’occurrence le même contribuable et la même imposition, ont été considérées suffisantes par la Cour afin d’établir l’existence d’un tel lien (voir, notamment, arrêt du 6 juin 2000, Verkooijen, C‑35/98, Rec. p. I‑4071, point 58, ainsi que arrêts précités Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt, point 42; Commission/Belgique, point 76, et Commission/Hongrie, point 77). | 0 |
10,738 | 58. It follows that discounts and bonuses granted by undertakings in a dominant position may be contrary to Article 82 EC even where they do not correspond to any of the examples mentioned in the second paragraph of that article. Thus, in determining that fidelity discounts had an exclusionary effect, the Court based its argument in Hoffmann-La Roche and Michelin on Article 82 of the EEC Treaty (subsequently Article 86 of the EC Treaty, and then Article 82 EC) in its entirety, and not just on subparagraph (b) of its second paragraph. Moreover, in its judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 523, concerning fidelity rebates, the Court expressly referred to subparagraph (c) of the second paragraph of Article 86 of the EEC Treaty, according to which practices constituting abuse of a dominant position may consist, for example, in applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage. | 31
In the context of bilateral tax conventions, it follows from the case-law of the Court that the scope of such a convention is limited to the natural or legal persons defined by it. Likewise, the benefits granted by it are an integral part of all the rules under the convention and contribute to the overall balance of mutual relations between the two contracting States (see, to that effect, judgments of 5 July 2005 in D., C‑376/03, EU:C:2005:424, paragraphs 54 and 61 to 62, and of 20 May 2008 in Orange European Smallcap Fund, C‑194/06, EU:C:2008:289, paragraphs 50 to 51). It must be noted, as the Advocate General did at point 43 of her Opinion, that that situation is the same with regard to double taxation conventions concluded with Member States or with third States. | 0 |
10,739 | 20 Under Article 2(2) of the Directive, Member States may exclude from the scope of the Directive occupational activities for which, by reason of their nature or the context in which they are carried out, sex constitutes a determining factor; it must be noted, however, that, as a derogation from an individual right laid down in the Directive, that provision must be interpreted strictly (Johnston, paragraph 36, and Sirdar, paragraph 23). | 47. In that regard, account must be taken of the attitude of an averagely well-informed consumer, in whom the form given to a product may inspire particular confidence similar to that normally inspired in him by proprietary medicinal products, having regard to the safeguards normally associated with their manufacture and marketing. Although the external form given to the product may serve as strong evidence of its classification as a medicinal product by presentation, the ‘form’ must be taken to mean not only the form of the product itself but also that of its packaging, which may, for reasons of marketing policy, tend to make it resemble a medicinal product (see, to that effect, van Bennekom , paragraph 19, and Monteil and Samanni , paragraph 24). | 0 |
10,740 | 27 It is also clear from all the foregoing considerations that, contrary to the Court's ruling in Case C-400/95 Larsson v Føtex Supermarked [1997] ECR I-2757, paragraph 23), where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work. | 64. Une telle situation est manifestement inconciliable avec l’obligation dudit État membre de parvenir à une exécution immédiate et effective de ladite décision (voir, par analogie, arrêt Commission/Italie, EU:C:2013:832, point 35 et jurisprudence citée). | 0 |
10,741 | 41
That provision requires Member States to exempt from VAT supplies of new means of transport which satisfy the substantive conditions which are listed in that article (see, by analogy, judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 46) exhaustively (see, by analogy, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 59). | 42. It must be held that that duty of cooperation applies in the context of disputes such as those in the main proceedings. The European Parliament and the national judicial authorities must therefore cooperate in order to avoid any conflict in the interpretation and application of the provisions of the Protocol. | 0 |
10,742 | 39. As regards, in the first place, the situation of the claimants in the main proceedings, it should be pointed out that freedom of establishment, which Article 43 EC grants to Community nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Community, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, in particular, Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 35; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 30; and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 41). | 17. Thus, the purpose of a vessel’s voyage within European Union waters is irrelevant for the application of the exemption of mineral oils from excise duties when that navigation involves the provision of services for consideration. | 0 |
10,743 | 31 The letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive essentially involves the landlord of property assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (see, to that effect, Commission v Ireland, paragraphs 52 to 57, and Commission v United Kingdom, paragraphs 64 to 69, cited above, and Case C-326/99 Goed Wonen [2001] ECR I-6831, paragraph 55). | 52 It is also settled case-law that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, Stichting Uitvoering Financiële Acties, cited above, paragraph 13, Bulthuis-Griffioen, cited above, paragraph 19, SDC, cited above, paragraph 19, and Case C-216/97 Gregg v Commissioners of Customs and Excise [1999] ECR I-4947, paragraph 12). | 1 |
10,744 | 53. It follows from Article 7(1) and (4) of Directive 89/398, interpreted in keeping with the fourth recital in the preamble thereto, that labelling requirements such as those laid down by Regulation No 1139/98 apply in principle to foodstuffs intended for particular nutritional uses within the scope of the directive, namely those which are intended to meet a particular nutritional purpose in respect of certain categories of persons, unless it is necessary to provide for a derogation from those requirements in order to ensure that the particular nutritional purpose in question is attained (see, to that effect, Case C‑101/98 UDL [1999] ECR I-8841, paragraphs 15 and 18). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
10,745 | 43. In this context, account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of the directive are applied correctly in practice, the Commission which, as the Advocate General has observed in point 53 of his Opinion, does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants and by the Member State concerned (see, by analogy, Case C‑408/97 Commission v Netherlands , paragraph 17). | 39. En outre, ainsi qu’il ressort des explications fournies par la République italienne lors de l’audience, la réponse à la question de savoir si New Interline a poursuivi ses activités depuis l’ouverture de la procédure de concordat préventif et, en particulier, depuis l’expiration du délai prévu à l’article 3, paragraphe 2, de la décision 2008/697 demeure incertaine. | 0 |
10,746 | 26
As a preliminary point, it must be observed that, under the procedure laid down by Article 267 TFEU, providing for cooperation between referring courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may, where appropriate, reformulate the questions referred to it. The Court may extract from all the information provided by the referring court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute (judgments in Fuß, C‑243/09, EU:C:2010:609, paragraphs 39 and 40, and Cimmino and Others, C‑607/13, EU:C:2015:448, paragraphs 37 and 38 and the case-law cited). | 29 In contrast to nationals of Member States, Turkish workers are, admittedly, not entitled to move freely within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specified period. | 0 |
10,747 | 48. However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the last salary ( Beune , paragraph 45; Evrenopoulos , paragraph 21; Griesmar , paragraph 30; Niemi, paragraph 47; and Schönheit and Becker , paragraph 58). | 21. Conformément au principe de précaution, tel qu’interprété par la Cour, lorsque des incertitudes subsistent quant à l’existence ou à la portée de risques pour la santé des personnes, des mesures de protection peuvent être prises sans avoir à attendre que la réalité et la gravité de ces risques soient pleinement démontrées (arrêt Monsanto Agricoltura Itali a e.a., C‑236/01, EU:C:2003:431, point 111, ainsi que, en ce sens, arrêts Codacons et Federconsumatori, C‑132/03, EU:C:2005:310, point 61, et Agrarproduktion Staebelow, C‑504/04, EU:C:2006:30, point 39). | 0 |
10,748 | 30
By contrast, non-economic activities do not fall within the scope of the Sixth Directive (judgments of 13 March 2008, Securenta, C‑437/06, EU:C:2008:166, paragraphs 30 and 31, and of 12 February 2009, Vereniging Noordelijke Land- en Tuinbouw Organisatie, C‑515/07, EU:C:2009:88, paragraphs 36 and 37). | 24. Consequently, the General Court erred in law in considering in paragraphs 372 and 374 of the judgment under appeal, that public distancing constitutes the only means available to an undertaking involved in a cartel of proving that it has ceased participating in that cartel, even in the case where that company has not participated in anti-competitive meetings. | 0 |
10,749 | 82
Thus, according to the case-law of the Court, a tax cannot be hypothecated to an exemption from payment of that same tax for a category of undertakings, and thus even where those undertakings operate in competition with undertakings liable to pay the tax in question. The application of a tax exemption and its extent do not depend on the tax revenue. Thus, those liable to pay a charge cannot rely on the argument that the exemption enjoyed by other undertakings constitutes State aid in order to avoid payment of that charge or to obtain reimbursement thereof (see, to that effect, inter alia, judgment of 27 October 2005, Distribution Casino France and Others, C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraphs 41 and 42). | 25 However, Article 3(1)(c) of the Directive pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is applied for may be freely used by all, including as collective marks or as part of complex or graphic marks. Article 3(1)(c) therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks. | 0 |
10,750 | 49 In the same judgment, the Court then found, at paragraph 43, that damage done to the reputation of a trade mark may, in principle, be a legitimate reason, within the meaning of Article 7(2) of the directive, allowing the proprietor to oppose the use of his trade mark for further commercialisation of goods put on the Community market by him or with his consent. As regards prestige goods, the Court stated, at paragraph 45, that the reseller must not act unfairly in relation to the legitimate interests of the trade mark owner, but must endeavour to prevent his advertising from affecting the value of the trade mark by detracting from the prestigious image of the goods in question. At paragraph 48, the Court concluded that the proprietor of a trade mark may not rely on Article 7(2) to oppose the use of the trade mark, in ways customary in the reseller's sector of trade, for the purpose of bringing to the public's attention the further commercialisation of the trade-marked goods, unless it is established that such use seriously damages the reputation of the trade mark. | 38. It is therefore necessary to consider whether a measure such as the German system of recruitment vouchers can be justified, in the first place, by the fact that such a system represents a new instrument of the national employment policy which aims to improve workers’ recruitment and to reduce unemployment, in the second place, by the fact that its purpose is to protect the national social security system, which can be done only if contributions are paid on a national basis and where contributions would be lost if persons seeking employment were to be recruited in other Member States and, lastly, by the fact that it seeks to protect the national labour market against the loss of qualified workers. | 0 |
10,751 | 50
Moreover, with regard to judicial review of the conditions referred to in the previous paragraph, it must also be borne in mind that the EU legislature must be allowed a broad discretion when it is called upon to legislate in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue (see, to that effect, in the sphere of the protection of health, judgments of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 48, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 52; see also, to that effect, with regard to EU environmental policy, judgments of 15 December 2005, Greece v Commission, C‑86/03, EU:C:2005:769, paragraphs 87 and 88, and of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 46). | 35 Such a requirement, however, would not be compatible with those provisions if it had to be interpreted as precluding registration in the event that a secondary establishment or the centre for directing the operations of the vessel in the Member State in which the vessel was to be registered acted on instructions from a decision-taking centre located in the Member State of the principal establishment. | 0 |
10,752 | 61. As the Court has already held, in the area of checks and penalties for irregularities committed under Community law, the Community legislature has, by adopting Regulation No 2988/95, laid down a series of general principles and has required that, as a general rule, all sectoral regulations comply with those principles (see, to that effect, Case C‑94/05 Emsland‑Stärke [2006] ECR I‑2619, paragraph 50, and the case‑law cited). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
10,753 | 33
In that regard, the General Court recalled, firstly, in paragraph 22 of the judgment under appeal, that the Court of Justice has previously held that it follows from a schematic interpretation of the relevant regulations that the adoption by the Commission of a decision on financial corrections in connection with the Cohesion Fund, as from 2000, was subject to the observance of a certain time limit, the length of which varied depending on the applicable rules (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 76, 82, 83, 93 and 94, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 76, 82, 83, 93 and 94). | 35 Where the national authorities nevertheless allow the time-bar provided for in national law in respect of revocation of the decision granting the aid to come into effect, that situation cannot be treated in the same way as the situation where a trader does not know whether the competent administrative authorities are going to reach a decision, and where the principle of legal certainty requires that such uncertainty be brought to an end after a certain period has elapsed. | 0 |
10,754 | 30. It is apparent from the wording of Article 5 of Directive 96/71 that the Member States have a wide margin of appreciation in determining the form and detailed rules governing the adequate procedures under the second paragraph of Article 5. In applying that wide margin of appreciation they must however at all times observe the fundamental freedoms guaranteed by the Treaty (Case C-390/99 Grand Satélite Digital [2002] ECR I-607, paragraphs 27 and 28 and Case C-71/02 Karner [2004] ECR I-0000, paragraphs 33 and 34) and, thus, in regard to the main proceedings, freedom to provide services. | 101. Finally, it is common ground that the appellant, a United Kingdom national, has passed a significant part of her life in the United Kingdom. | 0 |
10,755 | 33. In accordance with settled case-law, the Court has jurisdiction to provide a ruling, even where the facts of the main proceedings are outside the scope of European Union law, provided that the domestic legislation has adopted the same solutions as those adopted in European Union law and applies those solutions to a situation which is not covered by European Union law. According to the Court’s case-law, the legal order of the European Union clearly has an interest in ensuring that, to forestall future divergences of interpretation, any provision of European Union law should be interpreted uniformly, irrespective of the circumstances in which the provision is to apply (see, to that effect, in particular, Case C‑130/95 Giloy [1997] ECR I‑4291, paragraphs 19 to 28; Case C‑267/99 Adam [2001] ECR I‑7467, paragraphs 23 to 29; Case C‑43/00 Andersen og Jensen [2002] ECR I‑0379, paragraphs 15 to 19, or Case C‑3/04 Poseidon Chartering [2006] ECR I‑2505, paragraphs 14 to 19). | 56. S’agissant de la notion d’«exercice de l’autorité publique», au sens de l’article 45, premier alinéa, CE, il convient de souligner que l’appréciation de celle-ci doit tenir compte, selon une jurisprudence constante, du caractère propre au droit de l’Union des limites posées par cette disposition aux exceptions permises au principe de la liberté d’établissement, afin d’éviter que l’effet utile du traité en matière de liberté d’établissement ne soit déjoué par des dispositions unilatérales prises par les États membres (voir, en ce sens, arrêts Reyners, précité, point 50; du 15 mars 1988, Commission/Grèce, 147/86, Rec. p. 1637, point 8, et du 22 octobre 2009, Commission/Portugal, C-438/08, Rec. p. I-10219, point 35). | 0 |
10,756 | 74. It is settled case-law that it is irrelevant that the failure of a Member State to fulfil its obligations is the result of technical difficulties it encounters (see, in particular, Case C-152/98 Commission vNetherlands , cited above, paragraph 41, and Case C-364/00 Commission vNetherlands [2002] ECR I-4177, paragraph 10). | 60. Accordingly, the reply to the third question referred must be that, in assessing the potential distinctiveness of a given colour as a trade mark, regard must be had to the general interest in not unduly restricting the availability of colours for the other traders who offer for sale goods or services of the same type as those in respect of which registration is sought.
The first question and Question 2(a) | 0 |
10,757 | 48. On the other hand, the EU legislation also takes into consideration the fact that exporters may encounter practical difficulties in obtaining the customs documents from the authorities of the non-member country of importation, upon whom they have no means of exerting pressure. It is in that context that it enables the competent national authorities to grant the exporter concerned extensions of time (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraphs 41 and 42). | 23 That justification is not acceptable. It has not been established that the confinement of bottling to a specified area was, in itself, capable of affecting the quality of the wine. | 0 |
10,758 | 17 As the Court has held on several occasions, a comparison of the national systems shows that the problem of disputing charges which have been unlawfully claimed or refunding charges which have been paid when not due is settled in different ways in the various Member States, and even within a single Member State, according to the various kinds of taxes or charges in question. In certain cases, objections or claims of this type are subject to specific procedural conditions and time-limits under the law with regard both to complaints submitted to the tax authorities and to legal proceedings. In other cases, claims for repayment of charges which were paid but not due must be brought before the ordinary courts, mainly in the form of claims for the refunding of sums paid but not owed, such actions being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501, paragraphs 22 and 23, Case 61/79 Denkavit Italiana [1980] ECR 1205, paragraphs 23 and 24, Case 811/79 Amministrazione delle Finanze dello Stato v Ariete [1980] ECR 2545, paragraphs 10 and 11, and Case 826/79 Amministrazione delle Finanze dello Stato v Mireco [1980] ECR 2559, paragraphs 11 and 12). | 24 IN OTHER CASES , CLAIMS FOR REPAYMENT OF CHARGES WHICH WERE PAID BUT NOT OWED MUST BE BROUGHT BEFORE THE ORDINARY COURTS , MAINLY IN THE FORM OF CLAIMS FOR THE REFUNDING OF SUMS PAID BUT NOT OWED . SUCH ACTIONS ARE AVAILABLE FOR VARYING LENGTHS OF TIME , IN SOME CASES FOR THE LIMITATION PERIOD LAID DOWN UNDER THE GENERAL LAW , WITH THE RESULT THAT MEMBER STATES INVOLVED MAY BE FACED WITH A HEAVY ACCUMULATION OF CLAIMS WHEN CERTAIN NATIONAL TAX PROVISIONS HAVE BEEN FOUND TO BE INCOMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .
| 1 |
10,759 | 19 As a preliminary point, it must be recalled that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities, provided that such activities are themselves, in principle, subject to VAT (see, to this effect, Case 268/83 Rompelman v Minister van Financiën [1985] ECR 655, paragraph 19, Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 44). However, by way of exception, a taxable person who, like Samuel Montagu, carries out exempt transactions pursuant to Article 13B(d)(1) to (5) of the Sixth Directive in the circumstances provided for in Article 17(3)(c) is also entitled under that provision to deduct VAT to the extent that he has used input goods and services for the purpose of such exempt transactions. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
10,760 | 43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9). | 42. That competence also implies that a Member State cannot be required to take account, for the purposes of applying its tax law, of the negative results of a permanent establishment situated in another Member State which belongs to a company with a registered office in the first State solely because those negative results are not capable of being taken into account for tax purposes in the Member State where the permanent establishment is situated. | 0 |
10,761 | 46. In that regard, it must be pointed out that Article 5(3) of Regulation No 3665/87 constitutes an exception to the normal export refund procedure and, consequently, that provision must be interpreted strictly. Since the existence of force majeure is an essential condition of being able to claim payment of refunds for exported goods which have not been released for consumption in the non‑member country of import, it follows that that term must be interpreted in such a way that the number of cases capable of benefiting from such payment remains limited (see, by analogy, Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading v Commission [2008] ECR I‑8599, paragraph 60). | 62. Therefore, it must be held that activities which consist in the simple sale of shares and other negotiable securities, such as holdings in investment funds, do not constitute economic activities within the meaning of Article 4(2) of the Sixth Directive and, therefore, they do not come within the scope of that directive. | 0 |
10,762 | 14 It should be recalled that, strictly speaking, Articles 85 and 86 of the Treaty are concerned solely with the conduct of undertakings and not with measures adopted by Member States by law or regulation. The Court has consistently held, however, that read in conjunction with Article 5, Articles 85 and 86 of the Treaty require Member States to refrain from introducing or maintaining in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings (as regards Article 85 of the Treaty, see the judgments in Case 267/86 Van Eycke v Aspa [1988] ECR 4769, paragraph 16, Case C-185/91 Reiff [1993] ECR I-5801, paragraph 14 and Case C-153/93 Germany v Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 14; as regards Article 86 of the Treaty, see the judgment in Case 13/77 NV GB-INNO-BM v ATAB [1977] ECR 2115, paragraph 31). | 52
In this regard, however, it must be noted, firstly, that there is a significant risk that the consumers concerned will not lodge the objection required, be it because of the particularly short period provided for that purpose, or because they might be dissuaded from defending themselves in view of the costs which legal proceedings would entail in relation to the amount of the disputed debt, or because they are unaware of or do not appreciate the extent of their rights, or indeed because of the limited content of the application for the order for payment submitted by the sellers or suppliers, and thus the incomplete nature of the information available to them (see, to that effect, judgment in Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 54). | 0 |
10,763 | 21. However, it is settled case-law that the wording used in one language version of European Union law provisions cannot serve as the sole basis for the interpretation of those provisions. Where there is a divergence between the various language versions of a European Union text, the provisions in question must thus be interpreted by reference to the general scheme and the purpose of the rules of which they form part (see Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 16 and the case-law cited, and Case C-277/12 Drozdovs [2013] ECR, paragraph 39 and the case-law cited). | 36 However, acceptance of the payment declaration does not authorise the customs administration to pay the trader that advance. That payment can be made only after the exporter has then submitted a request in writing to that end, the exporter thus having the opportunity to decide the date of the payment of the advance or, where the destination of the goods has been changed, to renounce that payment totally. | 0 |
10,764 | 37. Moreover, the measures which the Member States adopt to that end may not be used in such a way as to undermine the neutrality of VAT (see Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 59; Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 92; and also C‑146/05 Collée [2007] ECR I‑7861, paragraph 26). | 82. By this second branch, L & D challenges the analysis made by the Court of First Instance in paragraphs 91 to 96 of the judgment under appeal of the similarities between mark No 91 991 and the Aire Limpio mark. The appellant submits, inter alia, that the Court was wrong in holding that the graphic element of the Aire Limpio mark has a clearly dominant character in the overall impression, which noticeably prevails over the word element. | 0 |
10,765 | 30. In that connection, it is clear from the case-law of the Court that the basis of assessment for a supply of services is everything which makes up the consideration for the service and that a supply of services is therefore taxable only if there is a direct link between the service supplied and the consideration received (Case 102/86 Apple and Pear Development Council [1988] ECR 1443, paragraph 11 and 12, and Tolsma , paragraph 13). | 10 THE FIRST QUESTION ENVISAGES A FACTUAL SITUATION WHICH THE KANTONRECHTER DESCRIBES AS FOLLOWS :
- A PHARMACEUTICAL PRODUCT PREPARED IN ACCORDANCE WITH A UNIFORM METHOD OF PREPARATION AND QUALITATIVE AND QUANTITATIVE COMPOSITION IS LAWFULLY IN CIRCULATION IN SEVERAL MEMBER STATES , IN THE SENSE THAT , IN PURSUANCE OF THE NATIONAL SYSTEMS OF LEGISLATION OF THESE STATES , THE REQUISITE AUTHORIZATIONS HAVE BEEN GRANTED IN RELATION TO THAT PRODUCT TO THE MANUFACTURER ' OR THE PERSON RESPONSIBLE FOR PUTTING THE PRODUCT ON THE MARKET ' IN THE MEMBER STATE IN QUESTION ;
- THE FACT THAT SUCH AUTHORIZATIONS HAVE BEEN GRANTED IN EACH OF THE MEMBER STATES IS MADE KNOWN BY GENERAL NOTICE GIVEN BY OFFICIAL PUBLICATION OR IN SOME OTHER WAY ; AND
- THIS PRODUCT IS IN EVERY RESPECT SIMILAR TO A PRODUCT IN RESPECT OF WHICH THE PUBLIC HEALTH AUTHORITIES OF THE MEMBER STATE INTO WHICH THE FIRST PRODUCT HAS BEEN IMPORTED ALREADY POSSESS THE DOCUMENTS RELATING TO THE METHOD OF PREPARATION AND ALSO TO THE QUANTITATIVE AND QUALITATIVE COMPOSITION , SINCE THESE DOCUMENTS WERE PRODUCED TO THEM PREVIOUSLY BY THE MANUFACTURER OR HIS DULY APPOINTED IMPORTER IN SUPPORT OF AN APPLICATION FOR AUTHORIZATION TO PLACE THEM ON THE MARKET .
| 0 |
10,766 | 27 It is apparent from settled case-law that such findings, which concern purely matters of fact, cannot be reviewed by the Court of Justice in the context of an appeal, except where the clear sense of the evidence submitted to the Court of First Instance has been distorted (Case C-191/98 P Tzoanos v Commission [1999] ECR I-8223, paragraph 23; and Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 48). In that regard, the Commission has neither shown, nor even contended, that the Court of First Instance's findings were inconsistent or substantively inaccurate as regards the documents before it. In any event, it must be held that the findings of fact, which the Court of First Instance alone had jurisdiction to make and which the Commission challenges, evince no manifest error of assessment. | 48 Secondly, the Court of First Instance's assessment that the facts before it constituted a situation of a confusion of interests is a matter solely for the court determining the case on its merits. Since no evidence of a substantive inaccuracy in the findings or of distortion of the clear sense of the evidence of the case-file in the contested judgment has been adduced in these appeal proceedings, that assessment by the Court of First Instance is not reviewable by the Court. | 1 |
10,767 | 21. The full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 of that provision would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition ( Courage and Crehan EU:C:2001:465, paragraph 26; Manfredi and Others EU:C:2006:461, paragraph 60; Case C‑199/11 Otis and Others EU:C:2012:684, paragraph 41; and Case C‑536/11 Donau Chemie and Others EU:C:2013:366, paragraph 21). | 73 The Netherlands Government claims that the statement in the preamble to Regulation No 304/97, that rice originating in the OCTs is sold on the Community market at a lower price than that at which Community rice can be sold, is manifestly inaccurate. | 0 |
10,768 | 59. Even if judgments delivered under Article 226 EC were to have the same effects as those delivered under Article 234 EC and, therefore, considerations of legal certainty might, exceptionally, make it necessary to limit their temporal effects (see Case C‑178/05 Commission v Greece [2007] ECR I‑4185, paragraph 67; Case C‑475/07 Commission v Poland [2009] ECR I‑0000, paragraph 61; and Case C‑559/07 Commission v Greece [2009] ECR I‑0000, paragraph 78), it must be stated that, in the present case, the Commission did not at any stage of the proceedings abandon its position in principle. In the declaration which the Commission made during the negotiations relating to Regulation No 150/2003, it expressed its firm intention to maintain its claim to the collection of customs duties which should have been paid for periods prior to the entry into force of that regulation and reserved the right to take the appropriate action in that regard. | 26. In that regard, double taxation conventions are designed to eliminate or mitigate the negative effects on the functioning of the internal market resulting from the coexistence of national tax systems referred to in the preceding paragraph ( Kerckhaert and Morres , paragraph 21, and Block , paragraph 29). | 0 |
10,769 | 21 Contrary to Thierschmidt' s argument, the grounds set out by the Court in paragraphs 13 and 14 of the Ospig judgment, cited above, based on the difference between the objectives pursued by the Community rules aimed at monitoring the quantities of textile products imported from certain non-member countries and by Regulation No 1224/80 are not applicable to charges in respect of own quotas allocated to the exporter free of charge. In that case, the quota system does not entail any expense for the seller. | 57. The first sentence of Article 5(1) of Directive 89/104 provides that the registered trade mark is to confer on the proprietor exclusive rights therein. By virtue of Article 5(1)(a) of that directive, those exclusive rights entitle the proprietor to prevent all third parties not having his consent from using, in the course of trade, any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered. | 0 |
10,770 | 44. It must first of all be noted, in that regard, that the Court has in certain cases acknowledged that the WTO’s anti-dumping system could constitute an exception to the general principle that the EU Courts cannot review the legality of the acts of the EU institutions in light of whether they are consistent with the rules of the WTO agreements (see, to that effect, judgments in Nakajima v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; Petrotub and Republica v Council , C‑76/00 P, EU:C:2003:4, paragraphs 55 and 56; and Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 59). | 539 IF SUCH AN AGENT WORKS FOR HIS PRINCIPAL HE CAN IN PRINCIPLE BE REGARDED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING BOUND TO CARRY OUT THE PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING . | 0 |
10,771 | 95. Contrary to the finding of the General Court at paragraph 61 of the judgment under appeal, it is irrelevant in that regard that the restrictions on the right of access laid down by Regulations Nos 1/2003 and 773/2004 themselves require an assessment to be carried out on a case-by-case basis. On the other hand, what is decisive, as the Court has already held, is that those regulations lay down strict rules regarding the treatment of information obtained or established in the context of a proceeding under Article 81 EC ( Commission v Éditions Odile Jacob , paragraph 118, and Commission v Agrofert Holding , paragraph 59). | 50. The Court has pointed out in this regard that women who are on maternity leave are in a special position which requires them to be afforded special protection, but which is not comparable either to that of a man or to that of a woman actually at work ( Gillespie and Others , paragraph 17). The Court went on to rule that neither Article 119 of the EEC Treaty (which became Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC)) nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave, while stating that the amount payable could not, however, be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth ( Gillespie and Others , paragraph 20). | 0 |
10,772 | 53. The objective of the Unfair Commercial Practices Directive, which is to protect consumers in full against practices of that kind, relies on the assumption that, in relation to a trader, the consumer is in a weaker position, particularly with regard to the level of information, in that the consumer must be considered to be economically weaker and less experienced in legal matters than the other party to the contract (see judgment in Zentrale zur Bekämpfung unlauteren Wettbewerbs , C‑59/12, EU:C:2013:634, paragraph 35). | 19 Moreover, a provision is sufficiently precise to be relied on by an individual and applied by a national court where it sets out an obligation in unequivocal terms (Case 152/84 Marshall [1986] ECR 723 and Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855). | 0 |
10,773 | 47. It must be borne in mind that it is immaterial whether, in addition to its duty to meet needs in the general interest, an entity is free to carry out other profit-making activities, provided that it continues to attend to the needs which it is specifically required to meet. The proportion of profit-making activities actually pursued by that entity as part of its activities as a whole is also irrelevant for its classification as a body governed by public law (see, to that effect, Mannesmann Anlagenbau Austria and Others , paragraph 25; Korhonen , paragraphs 57 and 58; and Case C‑373/00 Adolf Truley [2003] ECR I‑1931, paragraph 56). | 36 That said, the validity as circumscribed above of Article 4(4) does not entail that a request for aggregation is to be refused when it may be satisfied, in direct application of Articles 48 to 51 of the Treaty, without recourse to the coordination rules adopted by the Council. | 0 |
10,774 | 36. First, it should be observed that EU competition law refers to the activities of ‘undertakings’ (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 59, and Akzo Nobel and Others v Commission , paragraph 54) and that the concept of an undertaking encompasses any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 112, and Akzo Nobel and Others v Commission , paragraph 54). That concept must be understood as denoting an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11, and Akzo Nobel and Others v Commission , paragraph 56). | 95. It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, Case C-567/10 Inter-Environment Bruxelles and Others [2012] ECR, paragraph 30). | 0 |
10,775 | 63. In that connection, it must be pointed out that there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied (Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 31). | 78 Nevertheless, in principle, where a company which has benefited from aid has been sold at the market price, the purchase price reflects the consequences of the previous aid, and it is the seller of that company that keeps the benefit of the aid. In that case, the previous situation is to be restored primarily through repayment of the aid by the seller. | 0 |
10,776 | 40. Therefore, the question arises as to whether an action for annulment by Bavaria or Bavaria Italia challenging Regulation No 1347/2001 under the fourth paragraph of Article 230 EC would undoubtedly have been admissible on the ground that that regulation was of direct and individual concern to them (see, to that effect, Case C‑241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraph 15; Nachi Europe , paragraph 40; and Roquette Frères , paragraph 41). | 31. Consequently, the Italian Government’s present argument must be rejected. To the extent that, as to the remainder, the Italian Republic’s line of argument seeks to dispute the allegation that it has failed to fulfil its obligations, that failure is to be examined when considering the substance. | 0 |
10,777 | 46. Moreover, it is apparent from the case-law of the Court that it is for the issuing Member State to investigate whether the minimum conditions imposed by EU law, particularly those relating to residence and fitness to drive laid down in Article 7(1) of Directive 2006/126, have been satisfied and, therefore, whether the issuing of a driving licence is justified (see, to that effect, judgment in Hofmann , C‑419/10, EU:C:2012:240, paragraphs 45 and 47). | 45. As the Advocate General observed in points 60 and 61 of her Opinion, the concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, by the absence of an employment relationship. An in-house lawyer, despite his enrolment with a Bar or Law Society and the professional ethical obligations to which he is, as a result, subject, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, an in-house lawyer is less able to deal effectively with any conflicts between his professional obligations and the aims of his client. | 0 |
10,778 | 35
Furthermore, it is established that Member States may adopt implementing measures for a regulation provided that they do not thereby obstruct its direct applicability or conceal its nature as an act of EU law; that they specify that they are acting in exercise of a discretion conferred on them under that regulation; and that they adhere to the parameters laid down thereunder (judgments of 25 October 2012 in Ketelä, C‑592/11, EU:C:2012:673, paragraph 36, and 15 May 2014 in Szatmári Malom, C‑135/13, EU:C:2014:327, paragraph 55). | 49 Since the reference values chosen will have an impact on the amount of any contribution demanded of new market entrants, it is important that those values are set in accordance with objective criteria and that like is compared with like so as to ensure transparency; this will enable new entrants to calculate their probable costs and income. Any factor that makes that calculation more difficult is likely to discourage them from entering the market. | 0 |
10,779 | 31 Thus, the Court has held that the prohibition of discrimination based on nationality applies not only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services (see Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405, paragraph 17). | 39 It is clear from the obligations to cooperate arising from Article 5 of the Treaty that those obligations would not be fulfilled - and the aims of Article 14a(1)(a) of Regulation No 1408/71 and Article 11(a) of Regulation No 574/72 would be thwarted - if the competent institution of the Member State in which the work assignment is carried out were to consider that it was not bound by the certificate and made the self-employed person subject to its own social security system (Fitzwilliam Executive Search, paragraph 52). | 0 |
10,780 | 37. Secondly, it follows from established case-law that, although it is true that Article 101 TFEU is, in itself, concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, that article, read in conjunction with Article 4(3) EU, none the less requires Member States not to introduce or maintain in force measures, whether legislative or regulatory, which may render ineffective the competition rules applicable to undertakings. Such is the case where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions which affect the economic sphere (see, to that effect, Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraphs 53 and 54; Case C‑266/96 Corsica Ferries France [1998] ECR I‑3949, paragraphs 35, 36 and 49; and Albany , paragraph 65). | 22. À cet égard, l’obligation d’établir des plans de gestion des déchets constitue une obligation de résultat à laquelle il ne saurait être satisfait par des mesures fixant un cadre réglementaire de nature à réaliser cet objectif (voir, en ce sens, arrêt Commission/France, C-292/99, précité, point 39, et voir arrêt du 4 octobre 2007, Commission/Finlande, C‑523/06, point 13). | 0 |
10,781 | 35. That power does not permit them to apply measures contrary to the freedoms of movement guaranteed by the Treaty or similar provisions of the EEA Agreement (see, to that effect, Amurta , paragraph 24). | 38 Although State liability is thus required by Community law, the conditions under which that liability gives rise to a right to reparation depend on the nature of the breach of Community law giving rise to the loss and damage. | 0 |
10,782 | 49. With regard, thirdly, to the procedure for the grant of the concessions at issue in the main proceedings, it must first be recalled that although, as European Union law now stands, service concessions are not governed by any of the directives by which the European Union legislature has regulated public procurement, the public authorities which grant such concessions are none the less bound to comply with the fundamental rules of the Treaties, in particular Articles 43 EC and 49 EC, and with the consequent obligation of transparency (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 and 61; Case C‑231/03 Coname [2005] ECR I‑7287, paragraphs 16 to 19; Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraphs 46 to 48; Case C‑91/08 Wall [2010] ECR I‑0000, paragraph 33; and Case C‑203/08 Sporting Exchange [2010] ECR I‑0000, paragraph 39). | 69. Consequently, refugee status ceases to exist where the national concerned no longer appears to be exposed, in his country of origin, to circumstances which demonstrate that that country is unable to guarantee him protection against acts of persecution against his person for one of the five reasons listed in Article 2(c) of the Directive. Such a cessation thus implies that the change in circumstances has remedied the reasons which led to the recognition of refugee status. | 0 |
10,783 | 29. Secondly, owing to the special nature of the employment relationships inherent in the making available of labour, pursuit of that activity directly affects both relations on the labour market and the lawful interests of the workforce concerned ( Webb , paragraph 18). | 56 It should be borne in mind in that connection that application of the Community competition rules is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Community Courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty. | 0 |
10,784 | 105. Since the Verwaltungsgericht Stuttgart has also indicated that, after the deduction, provided for by the legislation at issue in the main proceedings in favour of eligible non-profit-making activities, has been made, the surplus revenue is paid into the public purse, and in so far as it is not possible to exclude the possibility that the financial support given to bodies recognised as being in the public interest permits the latter to develop activities in the public interest which the State might normally be called upon to undertake, thereby leading to a reduction in the State’s expenses, it should, secondly, be recalled that neither is the need to prevent the reduction of tax revenues among the overriding reasons in the public interest capable of justifying a restriction on a freedom instituted by the Treaty (see, to that effect, Case C‑318/07 Persche [2009] ECR I‑359, paragraphs 45 and 46 and case-law cited). | 63 Second, the distinctive character of a sign consisting in the shape of a product, even that acquired by the use made of it, must be assessed in the light of the presumed expectations of an average consumer of the category of goods or services in question, who is reasonably well-informed and reasonably observant and circumspect (see, to that effect, the judgment in Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 31). | 0 |
10,785 | 75. However, the Court has also held that, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti‑competitive nature, the General Court was entitled to consider that it was for that undertaking to provide another explanation of the tenor of those meetings. In so doing, the General Court had neither unduly reversed the burden of proof nor set aside the presumption of innocence ( Montecatini v Commission , paragraph 181). | 36 Disturbing the balance and reciprocity of a bilateral international convention concluded between a Member State and a non-member country may, it is true, constitute an objective justification for the refusal by a Member State party to that convention to extend to nationals of other Member States the advantages which its own nationals derive from that convention (see, to that effect, Saint-Gobain ZN, cited above, paragraph 60). | 0 |
10,786 | 55
That conclusion cannot be called into question by the arguments which The Tea Board bases on Article 67(2) of Regulation No 207/2009 and the case-law arising from the judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 147), whereby it submits that an EU collective mark under Article 66(2) of Regulation No 207/2009 is, by its very nature, incapable of performing a distinguishing function of that kind. | 65. S’agissant, ensuite, du grief de la Commission visant la pratique des autorités portugaises en matière d’inscription des ressources propres dans le cadre de la convention ATA, il convient de rappeler, d’une part, que, dans le cadre d’une procédure en manquement, il incombe à la Commission d’établir l’existence du manquement allégué, en apportant à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, en ce sens, arrêts du 29 mai 2001, Commission/Italie, C-263/99, Rec. p. I-4195, point 27, ainsi que du 6 novembre 2003, Commission/Royaume-Uni, C-434/01, Rec. p. I‑13239, point 21 et jurisprudence citée). | 0 |
10,787 | 41. On the basis of the criteria set out in Article 4 of the directive, which are the sole point of reference for assessing a person’s status as a taxable person (see Van Tiem , paragraph 25, and BBL , paragraph 36), a person such as HE must be regarded as a taxable person. | 122 It must be observed, first, that so far as the amount of the financial correction is concerned, the Commission may even refuse to charge to the EAGGF the whole of the expenditure in question if it finds that there are no adequate control procedures. | 0 |
10,788 | 21 In that regard, it should be observed, first, that although, as the Court has held, in particular in Case 348/87 Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën [1989] ECR 1737, paragraph 13, the exemptions referred to in Article 13 of the Sixth Directive are to be interpreted strictly, the Court has also noted, in paragraph 15 of Case C-349/96 Card Protection Plan v Commissioners of Customs and Excise [1999] ECR I-973 (CPP), that those exemptions constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another. | 20. The Court also held, in paragraphs 16 to 20 of the judgment in Peacock , that network cards are designed solely for automatic information processing machines, that they are directly connected to those machines and that their function is to supply and accept data in a form which those machines can use. From this it inferred that network cards are comparable to any other medium whereby an automatic data processing machine accepts or delivers data in the sense that they have no function which they would be capable of performing without the assistance of such a machine. Accordingly, the final subparagraph of Note 5(B) to Chapter 84 of the CN, in the version in force prior to 1 January 1996, could not preclude them from being classified under heading No 8471, given that they do not perform any specific function. Furthermore, network cards satisfy the conditions relating to ‘units’ set out in that note, since they can be connected to the central unit and are specifically designed as parts of an automatic data-processing system. | 0 |
10,789 | 60
In accordance with the Court’s settled case-law, the children concerned in the disputes in the main proceedings may, as nationals of a Member State, rely on the rights pertaining to their status as Union citizens conferred on them by Article 20 TFEU, including against the Member State of which they are nationals (see, to that effect, judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 48; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 63; and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 43 and 44). | 40 Consequently, it must be held that, by failing to adopt within the prescribed period all the provisions necessary to implement Articles 3, 4 and 5 of the Directive, the Kingdom of Spain has failed to fulfil its obligations under the Euratom Treaty. | 0 |
10,790 | 140. Further, and bearing in mind that the assessment, by the General Court, of whether the statement of reasons is or is not sufficient is subject to review by the Court on an appeal (see, to that effect, Council v Bamba , paragraph 41 and case-law cited), the General Court erred in law by basing, as is apparent from paragraphs 174, 177, 188 and 192 to 194 of the judgment under appeal, its finding that there had been such an infringement on the fact that, in its opinion, the allegations made in the summary of reasons provided by the Sanctions Committee were vague and lacking in detail, even though such a general conclusion cannot be drawn if each of those reasons is examined separately. | 31. Consequently, when the presentation of goods to customs required by Article 40 of the Customs Code is accompanied by the lodging of a summary declaration or of a customs declaration which gives a description of the type of goods which bears no relation to reality, the notification to the customs authorities of the arrival of the goods, within the meaning of Article 4(19) of that code, is lacking. It cannot, in those circumstances, be considered that the information necessary for identification of the goods has been provided to those authorities by the mere production of certain documents. It is also necessary that the statements contained in the documents which accompanied the presentation to customs are correct. Where those statements make no mention of the presence of a significant part of the goods presented to customs, those goods must be regarded as having been introduced unlawfully. | 0 |
10,791 | 33. In this respect, it must be borne in mind that it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all relevant respects within a single Member State (see, inter alia, with regard to freedom of establishment and freedom of movement for workers, respectively, Case 20/87 Gauchard [1987] ECR 4879, paragraphs 12 and 13, and Case C‑18/95 Terhoeve [1999] ECR I‑345, paragraph 26, and the decisions there cited). The same holds good in respect of the provisions of Regulation No 1408/71 (see, to that effect, Case C‑153/91 Petit [1992] ECR I‑4973, paragraph 10, and Joined Cases C‑95/99 to C‑98/99 and C‑180/99 Khalil and Others [2001] ECR I‑7413, paragraph 70). | 57. However, according to the unambiguous wording of Article 6 of Directive 98/5, the registration in a host Member State of lawyers practising under a professional title acquired in another Member State is to be subject to the rules of professional conduct in force in the host Member State. Those rules, unlike those concerning the preliminary conditions required for registration, have not been harmonised and may therefore differ considerably from those in force in the home Member State. Moreover, as Article 7(1) of Directive 98/5 confirms, the failure to comply with those rules may lead to a lawyer being removed from the register in the host Member State. | 0 |
10,792 | 69
Accordingly, that directive requires that the consumer have correct, neutral and objective information that does not mislead him (see, to that effect, judgment of 4 June 2015, Teekanne, C‑195/14, EU:C:2015:361, paragraph 32 and the case-law cited). | 41 Accordingly, the provision relating to technical, economic and organisational constraints must be interpreted in the light of the other provisions of Directive 75/439, as amended, in order to ensure that the directive is effective in its entirety. | 0 |
10,793 | 52. In those circumstances, the view cannot be taken that the Italian State has waived its power by delegating to private economic operators responsibility for taking decisions affecting the economic sphere, which would have the effect of depriving the provisions at issue in the main proceedings of the character of legislation (see Arduino , paragraph 43, and the order in Mauri , paragraph 36.) | 12 It follows that in the event of the transfer of an undertaking, the contract of employment or employment relationship between the staff employed by the undertaking transferred may not be maintained with the transferor and is automatically continued with the transferee: the question whether or not a contract or relationship of employment exists at the date of the transfer must, however, be assessed on the basis of national law (judgment in Case 101/87 P. Bork International A.S, in liquidation, and Others v Foreningen af Arbejdsledere i Danmark [1988] ECR 3057, paragraph 17). | 0 |
10,794 | 53. In those circumstances, the Community Courts must restrict themselves to considering whether the exercise of that discretion contains a manifest error or constitutes a misuse of power or whether the Community institutions clearly exceeded the bounds of their discretion (see Antillean Rice Mills , paragraph 48; Case C-110/97 Netherlands v Council , paragraph 62, and Case C-301/97 Netherlands v Council , paragraph 74). | 17 It should be observed at the outset that the harmonisation achieved by the excise duty directives and by those on structures is no more than partial. The latter are essentially confined to classifying products on the basis of objective factors, connected in particular with the production methods employed, to defining the conditions governing chargeability to excise duty, to organising a system for circulation of the products subject to excise duty, to determining the tax base of the excise duties and to fixing minimum rates. | 0 |
10,795 | 17 According to the case-law of the Court of Justice, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of Article 5(1)(b) of the Directive (see, to that effect, SABEL, paragraphs 16 to 18, and Case C-39/97 Canon [1998] ECR I-5507, paragraph 29). It follows from the very wording of Article 5(1)(b) that the concept of likelihood of association is not an alternative to that of likelihood of confusion, but serves to define its scope (see, to that effect, SABEL, paragraphs 18 and 19). | 15. It is also established case‑law that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are such as to discourage non‑residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (Case C‑370/05 Festersen [2007] ECR I‑1129, paragraph 24; Case C‑101/05 A [2007] ECR I‑11531, paragraph 40; and Joined Cases C‑436/08 and C‑437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen [2011] ECR I‑305, paragraph 50). | 0 |
10,796 | 21. In that regard, first of all it must be noted that Directive 2001/29 concerns, as is apparent inter alia from Article 1(1) thereof, the legal protection of copyright and related rights, including, for authors, exclusive rights to their works. As for works such as computer programs, they are protected by copyright provided that they are original, that is that they are their author’s own intellectual creation (see Case C‑5/08 Infopaq International [2009] ECR I-6569, paragraph 35). | 34. Secondly, it is clear from the case‑law of the Court of Justice that a service c oncession exists where the agreed method of remuneration consists in the right of the service provider to exploit for payment his own service and means that he assumes the risk connected with operating the services in question (see Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraph 58; the order in Case C‑358/00 Buchhändler‑Vereinigung [2002] ECR I‑4685, paragraphs 27 and 28; and Parking Brixen , paragraph 40). | 0 |
10,797 | 45. First, as the Court has held, the verb ‘to discard’ must be interpreted in the light of the aim of Directive 75/442, which, in the wording of the third recital in the preamble, is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and that of Article 174(2) EC, which states that Community policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken. The verb ‘to discard’, which determines the scope of ‘waste’, therefore cannot be interpreted restrictively (see to that effect Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others [2000] ECR I‑4475, paragraphs 36 to 40). | 26. It must moreover be emphasised that the issue raised in the case in the main proceedings does not appear to be a situation in which all the components are wholly confined to one Member State. Indeed, it has been established that the marble tax is imposed on all marble from Carrara that crosses that municipality’s territorial boundaries, no distinction being made between marble the final destination of which is in Italy and marble destined for other Member States. By its nature and terms, the marble tax therefore impinges on trade between Member States (see Lancry and Others , paragraph 30; see, to the same effect, with regard to measures having effect equivalent to a quantitative restriction, Case 286/81 Oosthoek’s Uitgeversmaatchaapij [1982] ECR 4575, paragraph 9; Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni and Others [1993] ECR I-6621, paragraphs 36 and 37; Case C-254/98 TK-Heimdienst [2000] ECR I-151, paragraphs 27 to 31; and Case C-448/98 Guimont [2000] ECR I-10663, paragraphs 21 to 23). | 0 |
10,798 | 59. First, as to the grounds of the judgment under appeal finding that imports of sugar under the EC/OCT cumulation of origin rule would increase the surplus of sugar on the Community market, it is settled case-law that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see, inter alia, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24). Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 26; Joined Cases C-24/01 P and C-25/01 P Glencore and Compagnie Continentale v Commission [2002] ECR I-10119, paragraph 65; and Case C-122/01 P T. Port v Commission [2003] ECR I-4261, paragraph 27). | 11 That argument cannot be upheld . The criterion which emerges from the term "sold for export" relates to the goods and not to the situation of the seller . Placed in its proper context, the term suggests that it is agreed, at the time of sale, that the goods originating in a non-member country will be transported into the customs territory of the Community . Therefore, there is nothing to prevent both parties to such a sale from being established in the Community . | 0 |
10,799 | 66 According to that case-law, those provisions, which provide for the prohibition of all discrimination based on nationality in the field of social security against Algerian and Moroccan nationals as compared with the nationals of the host Member State, are directly effective notwithstanding the fact that the Cooperation Council has not adopted measures implementing Article 40(1) of the EEC-Algeria Agreement or Article 42(1) of the EEC-Morocco Agreement relating to the implementation of the principles stated in Articles 39 and 41 respectively. | 21 Mr Roenfeldt brought proceedings to annul that decision, arguing that, irrespective of the retirement age laid down by Danish legislation, the contribution periods completed in Denmark had to be taken into account in calculating the German pension. In support of that argument he cited the social insurance convention concluded between the Federal Republic of Germany and the Kingdom of Denmark. | 0 |
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