Unnamed: 0
int64 0
869k
| 0
stringlengths 36
32.8k
⌀ | 1
stringlengths 8
29.9k
| 2
int64 0
1
|
|---|---|---|---|
11,800 | 62. Thus, in the case of family members of a Union citizen who are not nationals of a Member State and who seek to enter the United Kingdom in reliance upon a right of entry provided for by Directive 2004/38, verification, for the purposes of Article 1 of Protocol No 20, consists, in particular, in checking whether the person concerned is in possession of the documents prescribed in Article 5 of that directive. In this regard, even though the Court has held that residence permits issued on the basis of EU law, by nature, declare and do not create rights (judgments in Dias , EU:C:2011:498, paragraph 49, and O. and B. , EU:C:2014:135, paragraph 60), the fact remains that, as has been established in paragraph 53 of the present judgment, the Member States are, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa. | 145. It should be added that while, in principle, Article 101(1) TFEU does not apply to agreements which fall within the categories specified in Article 101(3) TFEU, clauses of licence agreements such as the clauses at issue in the main proceedings do not meet the requirements laid down by the latter provision for reasons stated in paragraphs 105 to 124 of the present judgment and therefore the possibility of Article 101(1) TFEU being inapplicable does not arise. | 0 |
11,801 | 19. It should be noted that although Article 183 of the VAT Directive does not lay down any obligation to pay interest on a refund of excess VAT or the date from which such interest is payable, it cannot be concluded from that fact alone that that article must be interpreted as meaning that no control may be exercised under European Union law over the procedures established by Member States for the refund of excess VAT ( Enel Maritsa Iztok 3 , paragraphs 27 and 28 and the case-law cited). | 48. Accordingly, it is apparent from Articles 42(1) and 43(2) of Regulation No 2201/2003, interpreted in the light of recitals 17 and 24 in the preamble to that regulation, that a judgment ordering the return of a child handed down by the court with jurisdiction pursuant to that regulation, where it is enforceable and has given rise to the issue of the certificate referred to in the said Article 42(1) in the Member State of origin, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition (see, to that effect, Rinau , paragraph 84, and Povse , paragraph 70). | 0 |
11,802 | 53. With regard, second, to the question whether the sanction provided for in Article 13(4) of Regulation No 97/95 is effective, proportionate and dissuasive, the Court has consistently held that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 42, and Case C-26/00 Netherlands v Commission [2005] ECR I-0000, paragraph 126). | 65. A taxpayer such as Mr Renneberg cannot, for the purposes of determining the basis of assessment of the tax on his work-related income received in the Netherlands, request that rental losses relating to immovable property which he owns in Belgium be taken into account, unlike a taxpayer who resides and works in the Netherlands and who, suffering rental losses relating either to immovable property in the Netherlands which he occupies himself or to immovable property in Belgium which he does not himself occupy on a permanent basis, may set off those losses for the purposes of determining the basis of assessment of income tax in the Netherlands. | 0 |
11,803 | 88. However, in exercising their discretion relating to the protection of public health, the Member States must comply with the principle of proportionality. The means which they choose must therefore be confined to what is actually necessary to ensure the safeguarding of public health; they must be proportional to the objective thus pursued, which could not have been attained by measures which are less restrictive of intra-Community trade (see Sandoz , paragraph 18; Van Bennekom , paragraph 39; Commission v Denmark , paragraph 45; and Case C‑24/00 Commission v France , paragraph 52). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
11,804 | 30. Ainsi que la Cour l’a déjà jugé, une récupération tardive, postérieure aux délais impartis, ne saurait satisfaire aux exigences du traité (arrêts du 22 décembre 2010, Commission/Italie, C-304/09, non encore publié au Recueil, point 32; du 14 juillet 2011, Commission/Italie, C-303/09, non encore publié au Recueil, point 30, et Commission/Grèce, précité, point 60). | 32. The Member State must actually recover the sums owed (see Commission v France , paragraph 42). Recovery out of time, after the deadlines set, cannot satisfy the requirements of the Treaty (see, to that effect, judgment of 14 February 2008 in Case C‑419/06 Commission v Greece , paragraphs 38 and 61). | 1 |
11,805 | 41. In this regard, it must be recalled that the Court does not have jurisdiction to reply to a question referred for a preliminary ruling where it is obvious that the provision of EU law referred to the Court for interpretation is incapable of applying (see, to that effect, Case C‑567/07 Woningstichting Sint Servatius [2009] ECR I‑9021, paragraph 43 and the case-law cited). | 47. Point 3.2 of the SME Guidelines states that, in order to qualify as an SME under those guidelines, an enterprise must satisfy three tests: number of persons employed, the financial test and the independence test. | 0 |
11,806 | 76 Consequently, the third part of the plea must be rejected.
The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings
10 In particular, the Court of First Instance held as follows:
82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations.
83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions.
84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected.
85 Therefore, the fourth part of the plea cannot be accepted.
11 The Court of First Instance therefore rejected the first plea in law.
The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration
12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings.
13 The Court of First Instance held, in particular, as follows:
92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of.
93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22).
94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons.
95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant.
...
97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book).
98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing).
99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard.
...
101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing.
102 It follows that the plea must be rejected.
The third plea in law: infringement of Article 11 of the Staff Regulations
14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission.
15 The Court of First Instance held as follows:
108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case.
109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR").
110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book.
111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs.
...
113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations.
114 Accordingly, the plea must be rejected.
The fourth plea in law: infringement of Article 12 of the Staff Regulations
16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis.
17 So far as this plea in law is concerned, the Court of First Instance held as follows:
124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66).
125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position.
126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book.
127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations.
128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty.
129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41).
130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47).
131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials.
132 It follows that the plea must be rejected.
The fifth plea in law: infringement of Article 17 of the Staff Regulations
18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II.
19 The Court of First Instance rejected this plea for the following reasons:
147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression.
148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73).
149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials.
150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions.
151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect.
152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned.
153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties.
154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation.
155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression.
156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected.
157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication.
158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations.
...
160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations.
161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument.
162 Consequently, the plea must be rejected.
The sixth plea in law: manifest error of assessment and breach of the principle of proportionality
20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances.
21 The Court of First Instance held as follows:
165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34).
166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established.
167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed.
1 | 38. À cet égard, la Cour a déjà considéré que les majorations et les suppléments, qui ne sont pas définis en tant qu’éléments faisant partie du salaire minimum par la législation ou la pratique nationale de l’État membre sur le territoire duquel le travailleur est détaché, et qui modifient le rapport entre la prestation du travailleur, d’une part, et la contrepartie que celui-ci perçoit, d’autre part, ne sauraient, en vertu des dispositions de la directive 96/71, être considérés comme de tels éléments (arrêt Commission/Allemagne, précité, point 39). | 0 |
11,807 | 20
However, the mere fact that a public undertaking has been constituted in the form of a capital company under ordinary law cannot, having regard to the autonomy which that legal form is capable of conferring upon it, be regarded as sufficient to exclude the possibility of an aid measure taken by such a company being imputable to the State. The existence of a situation of control and the real possibilities of exercising a dominant influence which that situation involves in practice makes it impossible to exclude from the outset any imputability to the State of a measure taken by such a company, and hence the risk of an infringement of the Treaty rules on State aid, notwithstanding the relevance, as such, of the legal form of the public undertaking as one indicator, amongst others, enabling it to be determined in a given case whether or not the State is involved (judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 57). | 5. For those facilities to be applied, the TIR Convention requires that the goods be accompanied throughout the transport operation by a standard document, the TIR carnet, which serves to check the regularity of the operation. It also requires that the transport operations be guaranteed by associations approved by the contracting parties, in accordance with the provisions of Article 6 of the Convention. | 0 |
11,808 | 51. Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgments in Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraphs 75 to 78; Guardian Industries and Guardian Europe v Commission , C‑580/12 P, EU:C:2014:2363, paragraphs 57 to 59; Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraphs 148 and 149; and LG Display and LG Display Taiwan v Commission , C‑227/14 P, EU:C:2015:258, paragraphs 53 to 58 and 64). | 59. It should be added that, in accordance with that provision, the mention of the actual origin of the product or the use of the geographical indication in translation or accompanied by an expression such as ‘like’, ‘type’, ‘style’, ‘made’, ‘flavour’, or any other similar term, would not alter that categorisation. | 0 |
11,809 | 54. It is for the referring court to ascertain that the national authorities really did intend at the material time to ensure a particularly high level of protection with regard to the objectives relied on, and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary ( Zeturf , paragraph 47). In this connection, it is the Member State wishing to rely on an objective capable of justifying the restriction of the freedom to provide services which must supply the court called on to rule on that question with all the evidence of such a kind as to enable the court to be satisfied that the measure does indeed comply with the requirements deriving from the principle of proportionality ( Stoß and Others , paragraph 71). | 47. Therefore, it is for the referring court to determine whether the national authorities genuinely sought, at the material time, to ensure a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary. | 1 |
11,810 | 48. First, that court is called upon to decide whether the measures adopted by the legislature in order to remedy the unlawful exclusion of operators, such as Stanley, from the 1999 tendering procedure are in conformity with EU law. While the referring court finds that the provision made under the Bersani Decree for the award of approximately 16 000 new licences appears at first sight to comply with the requirements laid down by the Court in paragraph 63 of Placanica and Others , it harbours doubts as to the compatibility with EU law of other aspects of the new system, whereby the market positions of operators which obtained a licence under the 1999 tendering procedure are protected against potential competition from operators which were unlawfully excluded from that procedure and were unable to take part in a tendering procedure for the award of licences until 2006. In that connection, the referring court cites in particular the obligation laid down in Article 38(2) and (4) of the Bersani Decree, under which new licence holders must, when setting up their outlets, observe a minimum distance from existing licence holders. | 72. Second, where the consideration of such elements leads to the conclusion that the transaction in question goes beyond what the companies concerned would have agreed under fully competitive conditions, the corrective tax measure must be confined to the part which exceeds what would have been agreed if the companies did not have a relationship of interdependence. | 0 |
11,811 | 24. In that regard, it must be borne in mind that, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 40; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 36; and Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 16). | 60. It follows from all of the foregoing that the FEG’s arguments relating to the breach of the rights of the defence are not supported by convincing evidence capable of demonstrating that such a breach may have resulted from the excessive duration of the phase of the administrative procedure preceding notification of the statement of objections and that on the date of notification the FEG’s opportunities to defend itself were already thereby compromised. | 0 |
11,812 | 56. As regards the argument put forward by the Commission regarding the General Court’s failure to examine the evidence produced by the parties, it must be borne in mind that it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts and the legal conclusions it has drawn from them (see, in particular, Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 51, and Joined Cases C-101/07 P and C-110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I-10193, paragraph 58). | 26. That situation must be distinguished from that where the issue would be whether losses sustained in another Member State could be used and would be linked, for that reason, to that other Member State’s power to impose taxes, and where the symmetry between the right to tax profits and the right to deduct losses would not be safeguarded. In a situation such as that in the main proceedings, where the issue is that of transferring to a resident company the losses sustained by a permanent establishment situated in the territory of the same Member State, the power of that Member State to tax the profits (if any) arising from the activity, in its territory, of the permanent establishment is not affected. | 0 |
11,813 | 49. To interpret the Regulation as demanding the possibility of remedying the lack of translation as a uniform consequence of refusal of a document on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the document’s addressee understands does not call into question the importance of national law and the role of national courts. As is apparent from settled case-law, in the absence of Community provisions it is for the domestic legal system of each Member State to determine the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from the direct effect of Community law (see, inter alia, Case 33/76 Rewe [1976] ECR 1989, paragraph 5). | 15. À cet égard, il convient de rappeler que l’intérêt à agir d’un requérant doit, au vu de l’objet du recours, exister au stade de l’introduction de celui-ci, sous peine d’irrecevabilité, et perdurer jusqu’au prononcé de la décision juridictionnelle, sous peine de non-lieu à statuer, ce qui suppose que le recours soit susceptible, par son résultat, de procurer un bénéfice à la partie qui l’a intenté (voir arrêt du 7 juin 2007, Wunenburger/Commission, C‑362/05 P, Rec. p. I-4333, point 42, ainsi que du 28 mai 2013, Abdulrahim/Conseil et Commission, C‑239/12 P, non encore publié au Recueil, point 61). | 0 |
11,814 | 54. In those circumstances, the Community Court must restrict itself to considering whether the exercise of that discretion is vitiated by manifest error or misuse of powers and whether the Community institutions clearly exceeded the bounds of their discretion (see Antillean Rice Mills and Others v Commission , cited above, paragraph 48, Case C-110/97 Netherlands v Council , cited above, paragraph 62, and Case C-301/97 Netherlands v Council , cited above, paragraph 74). | 21 By letter of 4 November 1997 (hereinafter "the contested decision"), the Council rejected the confirmatory application, in the following terms:
"I refer to your letter of 1 September 1997 in which you make a confirmatory application, pursuant to Article 7(1) of Decision 93/731/EC, for access to [the contested report].
Your application was reviewed by the Council on the basis of an examination of the document in question.
As a result of this consideration, the Council has concluded that disclosure of [the contested report] could be harmful for the EU's relations with third countries.
Access to the document in question is therefore to be refused by virtue of Article 4(1) of Decision 93/731/EC in order to protect the public interest with regard to international relations." | 0 |
11,815 | 31. By prohibiting the registration as Community trade marks of such signs and indications, Article 7(1)(c) of Regulation No 40/94 pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks (see, inter alia, in relation to the identical provisions of Article 3(1)(c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Windsurfing Chiemsee , paragraph 25, and Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 73). | 26
In that connection, it must be recalled that, according to settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 48 and the case-law cited). | 0 |
11,816 | 64. The Court has consistently held that the different language versions of a Community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case 30/77 Bouchereau [1977] ECR 1999, paragraph 14; Case C-449/93 Rockfon [1995] ECR I-4291, paragraph 28; Case C-236/97 Codan [1998] ECR I-8679, paragraph 28, and Case C-127/00 Hässle [2003] ECR I-0000, paragraph 70). | 30 In that regard, the application of the host Member State's national rules to providers of services is liable to prohibit, impede or render less attractive the provision of services to the extent that it involves expense and additional administrative and economic burdens (Mazzoleni and ISA, paragraph 24). | 0 |
11,817 | 19. In that connection, it must be noted, as a preliminary point, that the Court has held, in its case-law relating to the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), that an action similar to that at issue in the main proceedings is related to bankruptcy or winding-up if it derives directly from the bankruptcy or winding-up and is closely connected with the proceedings for the ‘liquidation des biens’ or the ‘règlement judiciaire’ (see Case 133/78 Gourdain [1979] ECR 733, paragraph 4). An action with such characteristics does not therefore fall within the scope of that convention. | 66. In the case of a colour per se , distinctiveness without any prior use is inconceivable save in exceptional circumstances, and particularly where the number of goods or services for which the mark is claimed is very restricted and the relevant market very specific. | 0 |
11,818 | 50. In the second place, as regards the argument that Articles 32 EC and 37 EC do not constitute the appropriate legal basis for the adoption of Regulation No 2081/92, on the ground that beer is not one of the ‘agricultural products’ mentioned in Annex I to the Treaty, it must be borne in mind that the Court has already held that legislation which contributes to the achievement of one or more of the objectives mentioned in Article 33 EC must be adopted on the basis of Article 37 EC, even though, in addition to applying essentially to products falling within Annex I to the Treaty, it also covers incidentally other products not included in that annex (see, to that effect, Case C‑11/88 Commission v Council , paragraph 15, and Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 134). | 22. La Cour a souligné à cet égard que l’exigence d’un établissement stable ou d’une présence sur le territoire national est en fait la négation même de cette liberté. Elle a pour conséquence d’enlever tout effet utile à l’article 49 CE, dont l’objet est précisément d’éliminer les restrictions à la libre prestation des services de la part d’une personne non établie dans l’État sur le territoire duquel la prestation doit être fournie (voir arrêts du 9 juillet 1997, Parodi, C‑222/95, Rec. p. I‑3899, point 31, et du 3 octobre 2006, Fidium Finanz, C‑452/04, Rec. p. I‑9521, point 46). | 0 |
11,819 | 58
It should be recalled that, according to consistent case-law, an alleged failure to have regard to the rules of evidence is a question of law which is admissible in an appeal (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 44 and the case-law cited, and of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 25 and the case-law cited). | 50 In view of the reply given to the first two questions, it must therefore be held that, in order to ensure full implementation of Article 7 of the Directive, the Member States should have adopted, within the prescribed period, all the measures necessary to provide purchasers of package travel with a guarantee that, as from 1 January 1993, they would be refunded money paid over and be repatriated in the event of the organizer' s insolvency. | 0 |
11,820 | 29. It is important to note that, by limiting the effects of the rights which a trade mark owner derives from Article 5 of Directive 89/104, Article 6 seeks to reconcile the fundamental interests of trade mark protection with those of free movement of goods and freedom to provide services in the common market in such a way that trade mark rights are able to fulfil their essential role in the system of undistorted competition which the Treaty seeks to establish and maintain (see, in particular, Case C-63/97 BMW [1999] ECR I-905, paragraph 62, and Case C-100/02 Gerolsteiner Brunnen [2004] ECR I-0000, paragraph 16). | 58. À cet égard, il convient de souligner que ce n’est qu’à titre tout à fait exceptionnel que la Cour peut, par application d’un principe général de sécurité juridique inhérent à l’ordre juridique communautaire, être amenée à limiter la possibilité pour tout intéressé d’invoquer une disposition qu’elle a interprétée en vue de mettre en cause des relations juridiques établies de bonne foi. Pour qu’une telle limitation puisse être décidée, il est nécessaire que deux critères essentiels soient réunis, à savoir la bonne foi des milieux intéressés et le risque de troubles graves (arrêt du 12 février 2009, Cobelfret, C‑138/07, non encore publié au Recueil, point 68 et jurisprudence citée). | 0 |
11,821 | 54. As it is a case of derogating and transitional arrangements, Article 28 of the Sixth Directive must be strictly interpreted (see, to that effect, Case C‑169/00 Commission v Finland [2002] ECR I‑2433, paragraph 34, and Eurodental , paragraph 54) and in accordance with its objective. | 18 The use of criteria other than that of the place of performance, where that confers jurisdiction on a court which has no connection with the case, might jeopardize the possibility of foreseeing which court will have jurisdiction and for that reason be incompatible with the aim of the Convention. | 0 |
11,822 | 15. As the Court has held, in relation to direct taxes, the situations of residents and of non-residents are generally not comparable, because the income received in the territory of a State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode ( Schumacker , cited above, paragraphs 31 and 32; Case C-391/97 Gschwind [1999] ECR I-5451, paragraph 22; Case C-87/99 Zurstrassen [2000] ECR I-3337, paragraph 21, and Gerritse , cited above, paragraph 43). | 51. En effet, ladite dérogation est restreinte aux seules activités qui, prises en elles-mêmes, constituent une participation directe et spécifique à l’exercice de l’autorité publique (arrêt du 24 mai 2011, Commission/Belgique, C‑47/08, Rec. p. I‑4105, point 85 et jurisprudence citée). | 0 |
11,823 | 62. Whilst the national courts are admittedly entitled to consider the validity of an EU act, such as a Commission decision adopted pursuant to Article 25(6) of Directive 95/46, they are not, however, endowed with the power to declare such an act invalid themselves (see, to this effect, judgments in Foto-Frost , 314/85, EU:C:1987:452, paragraphs 15 to 20, and IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraph 27). A fortiori, when the national supervisory authorities examine a claim, within the meaning of Article 28(4) of that directive, concerning the compatibility of a Commission decision adopted pursuant to Article 25(6) of the directive with the protection of the privacy and of the fundamental rights and freedoms of individuals, they are not entitled to declare that decision invalid themselves. | 25. That argument cannot be accepted. | 0 |
11,824 | 105. The Court has pointed out in particular that, in order to determine whether the conditions relating to urgency and the risk of serious and irreparable damage have been satisfied, the national court dealing with the application for interim relief must examine the circumstances particular to the case before it and consider whether immediate enforcement of the measure which is the subject of the application for interim relief would be likely to result in irreversible damage to the applicant which could not be made good if the Community act were to be declared invalid ( Zuckerfabrik , paragraph 29; Atlanta Fruchthandelsgesellschaft and Others (I), cited above, paragraph 41). | 17 The possibility of successfully challenging the accuracy of a certificate of civil status, such as that in issue in the main proceedings, depends to a large extent on the procedure followed and on the conditions which have to be satisfied in order for such a birth certificate to be altered. These may vary considerably from one Member State to another. | 0 |
11,825 | 37. On the question of whether the jurisdiction ratione materiae of the Civil Service Tribunal extends to actions for damages based on the failure of an institution to fulfil its obligation to ensure the protection of its officials, it should be noted that both Article 270 TFEU and Article 91 of the Staff Regulations which relate to ‘any dispute between the Union and its servants’ refrain from defining the type of action available in the event of rejection of an administrative complaint. Therefore, where proceedings concern the legality of an act adversely affecting an applicant, within the meaning of Article 90 of those regulations, the Civil Service Tribunal has jurisdiction to hear and determine those proceedings, whatever, moreover, the type of action at issue (see in relation to the jurisdiction of the Court, before the creation of the General Court and the Civil Service Tribunal, judgment in Meyer-Burckhardt v Commission , 9/75, EU:C:1975:131, paragraph 10). | 25
It follows that two cumulative conditions, namely respect for the principles of equivalence and effectiveness, must be satisfied in order for a Member State to be able to assert the principle of procedural autonomy in situations which are governed by EU law. | 0 |
11,826 | 46. The Treaty provisions on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and they preclude measures which might place those nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see Case C-464/02 Commission v Denmark [2005] ECR I-7929, paragraph 34 and case-law cited; Commission v Portugal , paragraph 15; Commission v Sweden , paragraph 17; Commission v Germany , paragraph 21; and Commission v Greece , paragraph 43). | 20 As regards the second condition, it is not disputed that Regulation No 2806/87 was adopted in view of the quantities of beef and veal in respect of which individual applications for import licences had been lodged in the first 10 days of the month of September 1987 . | 0 |
11,827 | 35. However, it is important to distinguish unequal treatment permitted under Article 65(1)(a) TFEU from arbitrary discrimination or disguised restrictions prohibited under Article 65(3) TFEU. In order for national tax legislation such as that at issue in the main proceedings, which distinguishes between resident and non-resident taxpayers, to be regarded as compatible with the Treaty provisions on the free movement of capital, the difference in treatment must relate to situations which are not objectively comparable or must be justified by an overriding reason in the public interest. Moreover, in order to be justified, the difference in treatment must not go beyond what is necessary in order to attain the objective of the legislation in question (see Persche , paragraph 41, and Case C‑510/08 Mattner [2010] ECR I‑0000, paragraph 34). | 78 Finally, as the Court pointed out in Hoffmann-La Roche, the trade mark owner must be given advance notice of the repackaged product being put on sale. The owner may also require the importer to supply him with a specimen of the repackaged product before it goes on sale, to enable him to check that the repackaging is not carried out in such a way as directly or indirectly to affect the original condition of the product and that the presentation after repackaging is not likely to damage the reputation of the trade mark. Similarly, such a requirement affords the trade mark owner a better possibility of protecting himself against counterfeiting. | 0 |
11,828 | 37. Contrairement aux allégations de la République italienne, les exigences en matière de sécurité et de santé des travailleurs, prescrites par la directive 92/57, ne contrarient en rien la création et le développement de petites et moyennes entreprises. S’il est vrai que, selon l’article 137 CE, les directives prises par le Conseil de l’Union européenne en vue de garantir un meilleur niveau de protection de la sécurité et de la santé des travailleurs doivent éviter d’imposer des contraintes administratives, financières et juridiques, il convient de relever que, en conférant au Conseil le pouvoir d’arrêter des prescriptions minimales en ce domaine, ledit article n’a aucunement préjugé l’intensité de l’action que cette institution peut considérer comme nécessaire pour l’accomplissement de la mission assignée. L’utilisation de l’expression «prescriptions minimales» figurant à l’article 137 CE vise uniquement, ainsi que le confirme d’ailleurs le paragraphe 3 de la même disposition, à permettre aux États membres d’adopter des normes plus rigoureuses que celles qui font l’objet de l’intervention communautaire (voir, en ce sens, arrêt du 12 novembre 1996, Royaume-Uni/Conseil, C‑84/94, p. I‑5755, point 17). | 64. That difference in treatment can, however, be justified by objective circumstances, such as the necessity of complying with the principle of legal certainty. | 0 |
11,829 | 24 With regard to a guaranteed minimum subsistence level, the Court has already held that Community law does not preclude a Member State, in controlling its social expenditure, from taking into account the relatively greater needs of beneficiaries who have a dependent spouse or a dependent child or receive only a very small income, in relation to the needs of single persons. In fact, the Court held that Directive 79/7 did not preclude legislation under which the guarantee previously applicable to all workers suffering from an incapacity for work whose income was approximately equal to the statutory minimum wage that their (net) benefits would be at least equal to the (net) statutory minimum wage is restricted to persons having a dependent spouse or child or whose spouse has a very small income (judgment in Teuling cited above, paragraphs 22 and 23). | 37. Account must also be taken of whether the person who requests that his first name and surname, taken together, be registered as a trade mark is well known, since that factor may obviously influence the perception of the mark by the relevant public. | 0 |
11,830 | 32. In that regard, it is appropriate, first of all, to note that nothing in the wording of Directive 85/374 gives grounds for concluding that the EU legislature, in establishing producer liability for defective products, intended, so as to ensure undistorted competition and to facilitate the free movement of goods, to deny the Member States the power, as regards compensation for damage caused by a defective product used in the context of a service provision such as that at issue in the main proceedings, to provide for a system of liability on the part of the service provider corresponding to that established by Directive 85/374 (see, by analogy, Moteurs Leroy Somer , paragraph 30). | 47. It must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Bosman and Others [1995] ECR I-4921, paragraph 59, and Case C‑36/99 Idéal tourisme [2000] ECR I‑6049, paragraph 20). | 0 |
11,831 | 13. The Court has already held that German child-raising allowance constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see Martínez Sala , paragraph 26). | 32. Furthermore, it is settled case-law that an interpretation of a provision of European Union law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness (see, to that effect, Case C-220/03 ECB v Germany [2005] ECR I-10595, paragraph 31, and Case C-199/05 European Community [2006] ECR I-10485, paragraph 42). | 0 |
11,832 | 30. The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370. Therefore, according to settled case-law, the provisions of that convention now form an integral part of the legal order of the European Union (see, by analogy, Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 36, and Case C‑459/03 Commission v Ireland [2006] ECR I‑4635, paragraph 82). Within the framework of that legal order the Court therefore has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (see, inter alia, Case 181/73 Haegeman [1974] ECR 449, paragraphs 4 to 6, and Case 12/86 Demirel [1987] ECR 3719, paragraph 7). | 23. Ceci est d’autant plus le cas que l’essentiel de la réglementation nationale, dont l’adoption est intervenue avant celle de la directive, ne pouvait pas, par hypothèse, contenir une référence à cette directive, conformément à l’article 64, paragraphe 1, second alinéa, de celle-ci. À cet égard, il ressort de la jurisprudence que, lorsqu’une directive prévoit expressément que les dispositions de transposition de cette directive contiennent une référence à celle-ci ou sont accompagnées d’une telle référence lors de leur publication officielle, il est en tout état de cause nécessaire d’adopter un acte positif de transposition (voir arrêts du 27 novembre 1997, Commission/Allemagne, C‑137/96, Rec. p. I‑6749, point 8; du 18 décembre 1997, Commission/Espagne, C‑360/95, Rec. p. I‑7337, point 13, et Commission/Espagne, C‑361/95, Rec. p. I‑7351, point 15; du 15 novembre 2007, Commission/Espagne, C‑59/07, point 19, ainsi que du 1 er octobre 2009, Commission/Espagne, C‑502/08, point 21). | 0 |
11,833 | 33. Thereafter, that provision seeks to deepen the lasting integration of the Turkish migrant worker’s family in the host Member State by granting to the family member concerned, after three years of legal residence, the possibility of himself gaining access to the labour force. The fundamental objective thus pursued is that of consolidating the position of that family member, who is, at that stage, already legally integrated in the host Member State, by giving him the means to earn his own living in that State and therefore to establish a position which is independent of that of the migrant worker (see, inter alia, Eyüp , paragraph 26; Cetinkaya , paragraph 25; Aydinli , paragraph 23; Case C‑325/05 Derin [2007] ECR I‑6495, paragraphs 50 and 71; and Bozkurt , paragraph 34). | 26 The Court has also held that that first paragraph of Article 7 of Decision No 1/80 is designed to promote family unity in the host Member State, in order to facilitate the employment and residence of Turkish workers duly registered as belonging to the labour force of the Member State concerned, by first allowing family members who have been authorised to join the migrant worker to be present with him and by then consolidating their position with the right to work as employed persons in that State (Kadiman, paragraphs 34, 35 and 36). | 1 |
11,834 | 64. Moreover, with a view to ensuring the practical effect of that article, the Court held, first, that under Directive 76/464 the obligation on Member States to establish programmes and quality objectives for List II substances is conditioned not by a finding of actual water pollution by those substances but by discharges of those substances into the aquatic environment, and secondly, that the fact that a Member State may attain the result sought by the directive by means of an improvement in water quality as a result of some other method does not relieve it of its obligation to adopt the measures provided for in that article (Commission v Germany , paragraphs 41, 42 and 61). | 41 As to the German Government's argument concerning the improvement of water quality in Germany, it does not show conclusively that the method chosen by it is more stringent than the programmes provided for in Article 7 of the directive. Even if water quality has improved in Germany, that result which the German authorities claim to have achieved is no different from that which they would have achieved under the programmes provided for in Article 7 of the directive, as the Advocate General pointed out at paragraph 50 of his Opinion. | 1 |
11,835 | 20 Furthermore, it has been held on several occasions that the first paragraph of Article 95 is infringed where the taxation on the imported product and that on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (see, in particular, Case 45/75 Rewe-Zentrale v Hauptzollamt Landau [1976] ECR 181, paragraph 15, and Commission v Greece, cited above, paragraph 12). | 30. The 11th and 12th recitals in the preamble to Regulation No 259/93 also confirm that the supervision and control established by that regulation are intended to protect the environment, not only within the Community but also in third countries to which waste is exported from the Community. | 0 |
11,836 | 62. The Court has, it is true, acknowledged that, in order to maintain the link between the deductibility of premiums and the taxation of sums due from insurers in the implementation of insurance contracts, tax deductibility of the premiums is subject to the condition that they be paid in that State ( Bachmann , cited above, paragraphs 21 to 23; Case C-300/90 Commission v Belgium [1992] ECR I-305, paragraphs 14 to 20). | 39 It has already been pointed out in paragraph 31 above that the scope of the directive is wide and its purpose very broad. Its purpose would be undermined if "modifications to development projects" were so construed as to enable certain works to escape the requirement of an impact assessment although, by reason of their nature, size or location, such works were likely to have significant effects on the environment. | 0 |
11,837 | 27. Finally, the Court has ruled, as regards various exemptions under Article 13B(d) of the Sixth Directive, that, in order to be regarded as exempt transactions the services in question must, viewed broadly, form a distinct whole, fulfilling the specific, essential functions of a service described in that provision (see, to that effect, SDC , paragraphs 66 and 75 (relating to Article 13B(d)(3) and (5) of the Sixth Directive); Case C‑235/00 CSC Financial Services [2001] ECR I-10237, paragraphs 25 and 27 (relating to Article 13B(d)(5)); and Abbey National , paragraph 70 (as regards Article 13B(d)(6)). | 44. However, according to the Court, the onus rests on a service provider which relies on the resources of entities or undertakings with which it is directly or indirectly linked, with a view to being admitted to participate in a tendering procedure, to establish that it actually has available to it the resources of those entities or undertakings which it does not itself own and which are necessary for the performance of the contract ( Holst Italia , paragraph 29). | 0 |
11,838 | 35. First, it is clear, both from the case-law of the Court and from Article 152(5) EC and recital 26 in the preamble to Directive 2005/36, that Community law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation of health services such as pharmacies. In exercising that power, however, the Member States must comply with Community law, in particular the provisions of the Treaty on the freedoms of movement, including freedom of establishment and the free movement of capital. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector (see, to this effect, Case C-372/04 Watts [2006] ECR I-4325, paragraphs 92 and 146, and Case C-169/07 Hartlauer [2009] ECR I‑0000, paragraph 29). | 30 In the first place, Directive 77/187 applies, by virtue of Article 1(1), to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger. | 0 |
11,839 | 16 According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or 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, in particular, Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20, and the case-law cited therein). | 36. Accordingly, under Article 11(1)(a) of Directive 90/434, where the merger operation has the sole aim of obtaining a tax advantage and is not carried out for valid commercial reasons, such a finding may constitute a presumption that the operation has tax evasion or avoidance as one of its principal objectives. | 0 |
11,840 | 50
It is also the settled case-law of the Court that the right to a refund of charges levied by a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law, as interpreted by the Court. The Member State is therefore required, in principle, to repay charges levied in breach of EU law (see, to that effect, judgments of 9 November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph 12; of 14 January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph 20, and of 6 September 2011, Lady & Kid and Others, C‑398/09, EU:C:2011:540, paragraph 17). | 52. That being so, there is no thing preventing a national court from asking the Court to rule in such a classification, as the referring court has done here by its first and second questions, although it is for the national court to make the findings of fact necessary for that classification in the light of all the material in the file in its possession. | 0 |
11,841 | 45. In that regard, and since there is no Community legislation on the subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from Community law, provided, firstly, that those rules are not less favourable than those governing rights which originate in domestic law (principle of equivalence) and, secondly, that they do not render impossible or excessively difficult in practice the exercise of rights conferred by the Community legal order (principle of effectiveness) (see Case C‑300/04 Eman and Sevinger [2006] ECR I‑0000, paragraph 67, and Joined Cases C‑392/04 and C‑422/04 i‑21 Germany and Arcor [2006] ECR I‑0000, paragraph 57). | 27. The legislation at issue in the main proceedings provides that asset losses stemming from write-downs to the book value of shareholdings in subsidiaries in Germany are to be taken into account immediately and without restriction in calculating the taxable profits of parent companies which are subject to unlimited liability to tax in Germany. | 0 |
11,842 | 36. Il importe encore de préciser que, à cet effet, le Tribunal constate et apprécie souverainement les faits pertinents, sous réserve du cas de dénaturation de ceux-ci, puis, sous le contrôle de la Cour, les qualifie juridiquement au regard du principe du respect d’un délai raisonnable (voir, en ce sens, arrêt du 15 octobre 2002, Limburgse Vinyl Maatschappij e.a./Commission, précité, point 194). | 90. Where it is not possible to dissociate such a restriction from the main operation or activity without jeopardising its existence and aims, it is necessary to examine the compatibility of that restriction with Article 81 EC in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 81(1) EC. | 0 |
11,843 | 64 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 20, and Case C-216/97 Gregg v Commissioners of Customs and Excise [1999] ECR I-4947, paragraph 12). | 6 THE SETTING OF AN AGE LIMIT COULD ONLY HAVE RESULTED EITHER IN ELIMINATING THE APPLICANT HIMSELF FROM THE COMPETITION, WHICH WOULD HAVE BEEN DIRECTLY CONTRARY TO HIS INTEREST, OR ELSE IN ELIMINATING OTHER, POSSIBLY QUALIFIED, CANDIDATES, WHICH IN THE CIRCUMSTANCES CANNOT BE RECOGNISED AS A LEGITIMATE INTEREST OF HIS . | 0 |
11,844 | 30. Under such systems, the situation of shareholders resident in a Member State and receiving dividends from a company established in that State is comparable to that of shareholders who are resident in that State and receive dividends from a company established in another Member State, inasmuch as both the dividends deriving from a national source and those deriving from a foreign source may be subject, first, in the case of corporate shareholders, to a series of charges to tax and, secondly, in the case of ultimate shareholders, to economic double taxation (see, to that effect, Lenz , paragraphs 31 and 32, and Manninen , paragraphs 35 and 36 and Test Claimants in Class IV of the ACT Group Litigation , paragraph 56). | 203. The Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it forms part (Case C-223/98 Adidas [1999] ECR I-7081, paragraph 23; Case C-301/98 KVS International [2000] ECR I-3583, paragraph 21; Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 50, and Case C-191/99 Kvaerner [2001] ECR I-4447, paragraph 30). | 0 |
11,845 | 66
As regards the term ‘small areas at local level’, for the purposes of Article 3(3) of Directive 2001/42, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (see, inter alia, judgments of 18 January 1984, Ekro, C‑327/82, EU:C:1984:11, paragraph 11, and of 13 October 2016, Mikołajczyk, C‑294/15, EU:C:2016:772, paragraph 44). | 43. In the present case, it should be noted first that, as the Court has already held, a period of 60 days is not objectionable per se (see, to that effect, Peterbroeck , paragraph 16). | 0 |
11,846 | 62. As the Court has already held, the exercise of the right of establishment is hindered if national rules fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State, so that the competent national authorities must measure whether such factors sufficiently demonstrate that missing learning and skills have been acquired ( Vlassopoulou , paragraphs 15 and 20; Fernández de Bobadilla , paragraph 33). | 15 It must be stated in this regard that, even if applied without any discrimination on the basis of nationality, national requirements concerning qualifications may have the effect of hindering nationals of the other Member States in the exercise of their right of establishment guaranteed to them by Article 52 of the EEC Treaty. That could be the case if the national rules in question took no account of the knowledge and qualifications already acquired by the person concerned in another Member State. | 1 |
11,847 | 40. It is to be recalled that, if the legislation under examination concerns a stake which gives its holder definite influence over the decisions of the company concerned and allows him to determine its activities, it is the provisions relating to freedom of establishment which are applicable (Case C-251/98 Baars [2000] ECR I-2787, paragraphs 21 and 22, and Case C-436/00 X and Y [2002] ECR I-10829, paragraphs 37 and 66 to 68). However, if that legislation is not intended to apply only to stakes which enable the holder to have a definite influence on a company’s decisions and to determine the company’s activities, it should be examined in relation to both Article 43 EC and Article 56 EC (see, to this effect, Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraphs 36 and 38, and Case C-157/05 Holböck [2007] ECR I‑4051, paragraphs 23 and 25). | 62 However, it must first be pointed out that the Court has made clear that the circumstances in which the requirement under Article 3(3) of the Directive may be regarded as satisfied cannot be shown to exist solely by reference to general, abstract data, such as predetermined percentages (Windsurfing Chiemsee, paragraph 52). | 0 |
11,848 | 55. In addition, as the Hungarian Government also observes, if, in order to pass on the burden of the tax payable in connection with his own business to the following stage in the distribution or consumption process, a taxable person included that burden in his sale price, the basis of assessment for the HIPA would then include the tax itself, with the result that the HIPA would be calculated on an amount based on a sale price incorporating, in anticipation, the tax to be paid (see, by analogy, Banca Popolare di Cremona , paragraph 33). | 6 Article 6 of the First Directive provides inter alia:
`Member States shall provide for appropriate penalties in case of:
- failure to disclose the balance sheet and profit and loss account as required by Article 2(1)(f);
- ...' | 0 |
11,849 | 24 It is common ground that the principle of non-discrimination has been given effect, in the field of the right of establishment, by Article 52 of the Treaty (Halliburton Services, cited above, paragraph 12, and Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, paragraph 21). | 21 The principle of non-discrimination was implemented and specifically laid down, in relation to the right of establishment, by Article 52 of the Treaty. | 1 |
11,850 | 94. According to settled case-law, the principle that projects likely to have significant effects on the environment must be subject to an environmental assessment does not apply where the application for authorisation for a project was formally lodged before the expiry of the period set for transposition of Directive 85/337 (Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraphs 29 and 32, and Case C-81/96 Gedeputeerde Staten van Noord-Holland [1998] ECR I-3923, paragraph 23). | 29 In this case, the documents before the Court show that the application for consent for the project at issue was lodged with the Regierungspraesidium Darmstadt by PreussenElektra AG, the developer, on 26 July 1988, and thus after 3 July 1988. Consequently, the obligation imposed by the directive to carry out an environmental impact assessment could not in principle be waived in respect of the consent procedure for the project at issue. | 1 |
11,851 | 73. Moreover, it is clear from the case-law that a trader’s choice between exempt transactions and taxable transactions may be based on a range of factors, including tax considerations relating to the VAT system (see, in particular, BLP Group , paragraph 26, and Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 33). Where the taxable person chooses one of two transactions, the Sixth Directive does not require him to choose the one which involves paying the highest amount of VAT. On the contrary, as the Advocate General observed in point 85 of his Opinion, taxpayers may choose to structure their business so as to limit their tax liability. | 54 It follows that it is sufficient if the Commission has at its disposal, during that preliminary phase, all such information as will enable it to conclude, without any extensive review being called for, whether a given State measure is compatible with the Treaty or raises doubt as to its compatibility. | 0 |
11,852 | 74. Accordingly, the Court has accepted that a requirement of prior authorisation may, under certain conditions, be justified by such a consideration in the context of hospital care (see, inter alia, Smits and Peerbooms , paragraphs 76 to 81; Müller-Fauré and van Riet , paragraphs 76 to 81; and Watts , paragraphs 108 to 110) and in the context of medical care which, although it may be provided outside a hospital setting, requires the use of major and costly equipment exhaustively listed in the national legislation (see, to that effect, Commission v France , paragraphs 34 to 42). | 29. In accordance with settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation (see, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linste r [2000] ECR I‑6917, paragraph 43, and Case C‑467/08 Padawan [2010] ECR I‑0000, paragraph 32). | 0 |
11,853 | 57. The Kingdom of Belgium cannot therefore claim that the setting off of the tax paid in Belgium against the tax payable in the other Member State, pursuant to the double taxation conventions, allows in every case the neutralisation of the difference of treatment resulting from the application of the provisions of national tax legislation or of those conventions whose effect is to reduce the rate of the deduction arising from the withholding tax (see Commission v Italy , paragraph 39, Commission v Spain , paragraph 64, and Commission v Germany , paragraph 70). | 21. Il y a lieu, également, de rappeler qu’il appartenait au Tribunal d’apprécier, comme il l’a fait, si une bonne administration de la justice justifiait, dans les circonstances de l’espèce, de rejeter au fond le recours dans cette affaire sans statuer sur l’exception d’irrecevabilité soulevée par le Conseil, ce qui ne peut être regardée comme faisant grief à ce dernier (voir arrêt du 26 février 2002, Conseil/Boehringer, C‑23/00 P, Rec. p. I‑1873, point 52). | 0 |
11,854 | 26 It should remembered that, as the Court of Justice has held on several occasions, the fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of its conduct being imputed to the parent company, especially where the subsidiary does not independently decide its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company (see, in particular, ICI v Commission, cited above, paragraphs 132 and 133); Case 52/69 Geigy v Commission [1972] ECR 787, paragraph 44, and Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, paragraph 15). | 56. In that regard, it is, however, to be borne in mind that, in proceedings under Article 226 EC for failure to fulfil obligations, it is for the Commission to prove the alleged failure by placing before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled (see, in particular, Case C‑160/08 Commission v Germany [2010] ECR I‑0000, paragraph 116 and the case-law cited). | 0 |
11,855 | 134. The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re‑establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered (see, to that effect, Abdulrahim v Council and Commission , paragraphs 67 to 84).
– The errors of law affecting the judgment under appeal | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
11,856 | 45. It follows that, in proceedings before the national courts, every party has the right to plead before the court hearing the case the illegality of the provisions contained in legislative acts of the European Union which serve as the basis for a decision or act of national law relied upon against him and to prompt that court, which does not have jurisdiction itself to make a finding of such illegality, to put that question to the Court by means of a reference for a preliminary ruling (see, to that effect, Cases C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 35, and Unión de Pequeños Agricultores v Council , paragraph 40). | 9 THE CLASSIFICATION OF A PRODUCT AS A BEVERAGE WITHIN THE MEANING OF HEADING 22.02 CANNOT , MOREOVER , DEPEND ON THE BASIC INGREDIENTS USED . THE DISTINGUISHING CHARACTERISTIC IN THE TARIFF HEADING IN QUESTION IS THE FACT THAT THE PRODUCTS IN QUESTION ARE LIQUIDS AND ARE INTENDED FOR HUMAN CONSUMPTION . ALTHOUGH THE PRODUCT IN QUESTION IS MADE BASICALLY FROM YEAST , WHICH FALLS UNDER HEADING 21.06 , THE DECISIVE CHARACTERISTIC AS FAR AS CLASSIFICATION IN THE TARIFF IS CONCERNED IS ITS LIQUID STATE , CHIEFLY OBTAINED BY ADDING WATER , AND NOT THE BASIC INGREDIENT EMPLOYED .
| 0 |
11,857 | 45. It is settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedoms guaranteed by Articles 49 TFEU and 56 TFEU must be regarded as restrictions on the freedom of establishment and/or the freedom to provide services (see, inter alia, judgment in Duomo Gpa and Others , C‑357/10 to C‑359/10, EU:C:2012:283, paragraphs 35 and 36 and the case-law cited). | 36. It is settled case‑law that Article 49 EC requires not only the elimination of all discrimination against service providers established in another Member State on the ground of their nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit, impede or render less attractive the activities of a service provider established in another Member State where it lawfully provides similar services (see, inter alia, Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12 and Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 85). In the same vein, the Court has also held that Article 49 EC 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 a Member State (see, inter alia, Case C‑381/93 Commission v France [1994] ECR I‑5145, paragraph 17, and C‑250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 30 and the case‑law cited). | 1 |
11,858 | 24. Should the taxable person choose to treat capital goods used for both business and private purposes as business goods, the input VAT due on the acquisition of those goods is, in principle, immediately deductible in full (see, in particular, Case C‑97/90 Lennartz [1991] ECR I-3795, paragraph 26, Bakcsi , paragraph 25, and Seeling, paragraph 41). | 58. It is also settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom of establishment must be regarded as restrictions on that freedom (see Case C‑380/11 DI. VI. Finanziaria di Diego della Valle & C. [2012] ECR, paragraph 33). | 0 |
11,859 | 337. As regards KE KELIT’s argument based on the judgment in Dansk Rørindustri v Commission , it does admittedly follow from the case-law of the Court that when the amount of fines is being decided, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 85(1) of the Treaty and that if the Court of First Instance intended, in the case of one of those undertakings, to depart specifically from the method followed by the Commission, which it had not called in question, it should have given reasons for doing so in the judgment under appeal (see, in particular, Case C-338/00 P Volkswagen v Commission [2003] ECR I-9189, paragraph 146). | 146. With regard to the first head of complaint, the Court ruled, in paragraphs 97 and 98 of Sarrió v Commission , that, when the amount of fines is being decided, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 85(1) of the Treaty and that, if the Court of First Instance intended, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it had not called into question, it should have given reasons for doing so in the judgment under appeal. | 1 |
11,860 | 65. Lastly, it must be pointed out that the interpretation given in the preceding paragraph is not incompatible with the requirements of Article 59 of the Additional Protocol signed on 23 November 1970. On similar grounds to those set out by the Court in paragraphs 62 to 67 of its judgment in Case C-325/05 Derin [2007] ECR I-6495, in paragraph 21 of its judgment in Case C‑349/06 Polat [2007] ECR I-8167, and in paragraph 45 of its judgment in Bozkurt , the situation of a member of the family of a Turkish migrant worker cannot usefully be compared to that of a member of the family of a national of a Member State, having regard to the significant differences between their respective legal situations (see, to that effect, Case C‑462/08 Bekleyen [2010] ECR I‑0000, paragraphs 37, 38 and 43). | 71 It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy. | 0 |
11,861 | 17. It should also be remembered that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law (Case C‑617/10 Åkerberg Fransson EU:C:2013:105, paragraph 17). | 21. As regards, first, the place where the damage occurred, the Court has already held that it is the place where the event which may give rise to liability in tort, delict or quasi-delict resulted in damage (Case C‑189/08 Zuid-Chemie [2009] ECR I‑6917, paragraph 26). | 0 |
11,862 | 30. It is true that, under Article 267 TFEU, the Court has no jurisdiction to rule either on the interpretation of contractual clauses or provisions of national laws or on their conformity with European Union law (see, to that effect, Case C-384/08 Attanasio Group [2010] ECR I-2055, paragraph 16 and the case-law cited). | 20. Le Tribunal a jugé, au point 48 de l’arrêt attaqué, qu’il s’agissait d’un grief nouveau et que l’argumentation de la partie requérante quant à l’évolution de la valeur totale du marché concerné n’était pas fondée sur des éléments nouveaux qui se seraient révélés au cours de la procédure. Le Tribunal a également précisé que la simple allégation de SGL selon laquelle elle avait contesté, dès le stade de la requête, la détermination du montant de base de l’amende ne permettait pas de considérer que ce grief constituait une ampliation d’un grief énoncé antérieurement, directement ou implicitement, dans la requête introductive d’instance et présentant un lien étroit avec celui-ci. | 0 |
11,863 | 46. That said, it must first be determined whether, in the case of a person insured under the national health system whose state of health makes hospital care necessary during a temporary stay in another Member State, the services identified by the Commission in its action are cross-border services and, as such, within the scope of Article 49 EC (see, to that effect, Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 13). | 71. The failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement (see, to that effect, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraphs 7 and 9) and, second, that the objection could be proved only by reference to that document (see Case 107/82 AEG v Commission [1983] ECR 3151, paragraphs 24 to 30, and Solvay v Commission , cited above, paragraph 58). | 0 |
11,864 | 84. When implementation by the Council or the Commission of the Community’s agricultural policy necessitates the evaluation of a complex economic or social situation, their discretion is not limited solely to the nature and scope of the measures to be taken but also, to some extent, to the finding of basic facts. In that context, it is open to the Council or the Commission to rely if necessary on general findings (see, to that effect, Case C‑122/94 Commission v Council [1996] ECR I‑881, paragraph 18; Case C‑4/96 NIFPO and Northern Ireland Fishermen’s Federation [1998] ECR I‑681, paragraphs 41 and 42; Case C‑179/95 Spain v Council [1999] ECR I‑6475, paragraph 29; and Case C‑120/99 Italy v Council [2001] ECR I‑7997, paragraph 44). | 75. Given that, according to settled case-law, the unlimited jurisdiction enjoyed by the General Court enables it to substitute its own assessment for that of the Commission (see, inter alia, Case C‑679/11 P Alliance One International v Commission [2013] ECR, paragraph 104 and the case-law cited), it follows that that jurisdiction cannot be said to extend to carrying out assessments falling outside the Commission’s power to impose penalties. | 0 |
11,865 | 94 Moreover, in paragraphs 23 to 25 of Sutton, the Court distinguished the circumstances of that case from those of Case C-271/91 Marshall [1993] ECR I-4367 (Marshall II). In the latter case, which concerned the award of interest on amounts payable by way of reparation for loss and damage sustained as a result of discriminatory dismissal, the Court ruled that full compensation for the loss and damage sustained cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value, and that the award of interest is an essential component of compensation for the purposes of restoring real equality of treatment (Marshall II, cited above, paragraphs 24 to 32). The award of interest was held in that case to be an essential component of the compensation which Community law required to be paid in the event of discriminatory dismissal. | 67. As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist , paragraph 84). | 0 |
11,866 | 35. In addition, the Court has stated that Article 5(2) of Directive 89/104 also applies in relation to goods and services identical with or similar to those in respect of which the mark was registered (see, to that effect, Case C‑292/00 Davidoff [2003] ECR I‑389, paragraph 30; Adidas-Salomon and Adidas Benelux , paragraphs 18 to 22; and adidas and adidas Benelux , paragraph 37). | 21. It has been consistently held that, in applying national law, in particular national legislative provisions which were specially introduced in order to transpose a directive, the national court is required to interpret its national law, so far as possible, in the light of the wording and the purpose of the directive (see, in particular, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26; Case 79/83 Harz [1984] ECR 1921, paragraph 26, and Case C-185/97 Coote [1998] ECR I-5199, paragraph 18). | 1 |
11,867 | 31 Thus, as the Court has recognized on many occasions, the specific subject-matter of a trade mark is in particular to guarantee to the owner that he has the exclusive right to use that trade mark for the purpose of putting a product on the market for the first time and therefore to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products bearing it illegally (see Case 102/77 Hoffmann-La Roche v Centrafarm [1978] ECR 1139, paragraph 7; Case 1/81 Pfizer v Eurim-Pharm [1981] ECR 2913, paragraph 7; HAG II, paragraph 14; and IHT Internationale Heiztechnik, paragraph 33). | 48. The interdependence of the two objectives pursued by the Directive means that the EU legislature could legitimately take the view that it had to include a special scheme for small undertakings, and that, because of that interdependence, that twofold objective could best be achieved at EU level (see, to that effect, judgment in Vodafone and Others , C‑58/08, EU:C:2010:321, paragraph 78). | 0 |
11,868 | 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. | 61. According to the travaux préparatoires in respect of that directive, that option reflects the aim of reinforcing legal certainty, by encouraging ‘diligence’ on the part of the purchaser, ‘taking the seller’s interests into account’, ‘but does not establish a strict obligation to carry out a detailed inspection of the good’ (see the explanatory memorandum to the proposal for a directive, COM(95) 520 final, p. 14). | 0 |
11,869 | 51
It should be noted, as observed by the Advocate General in point 54 of his Opinion, that that provision encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 to 45). | 63. Au regard de l’ensemble des considérations qui précèdent, il y a lieu de constater que, en imposant, au moyen des listes de règles de construction visées par les codes de construction établis par les Länder, aux produits de construction visés par les normes harmonisées EN 681-2:2000, «Garnitures d’étanchéité en caoutchouc – Spécification des matériaux pour garnitures d’étanchéité utilisées dans le domaine de l’eau et du drainage – Partie 2: Élastomères thermoplastiques», EN 13162:2008, «Produits isolants thermiques pour le bâtiment – Produits manufacturés en laine minérale (MW) – Spécification», et EN 13241-1, «Portes et portails industriels, commerciaux et de garage – Norme de produit – Partie 1: Produits sans caractéristiques coupe-feu, ni pare-fumée», et revêtus du marquage «CE», des exigences supplémentaires pour leur accès effectif au marché et leur utilisation sur le territoire allemand, la République fédérale d’Allemagne a manqué aux obligations qui lui incombaient en vertu des articles 4, paragraphe 2, et 6, paragraphe 1, de la directive 89/106.
Sur les dépens | 0 |
11,870 | 74
It follows that the concepts in Article 45(2), first paragraph, including ‘serious misrepresentation’, can be specified and explained in national law, provided that it has regard for EU law (see, to that effect, judgment of 13 December 2012, Forposat and ABC Direct Contact, C‑465/11, EU:C:2012:801, paragraph 26). | 148. Lastly, it should be noted that the Commission is required, in the interests of sound administration of the rules relating to State aid, to conduct a diligent and impartial examination of the evidence at its disposal (see, inter alia, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 62). | 0 |
11,871 | 29. That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical (see Case C‑11/95 Commission v Belgium [1996] ECR I‑4115, paragraph 74, and judgment of 22 December 2008 in Case C‑283/07 Commission v Italy , paragraph 22). | 40. S’agissant du premier critère, il importe de relever que les fonctionnaires qui bénéficient d’un régime de pension doivent être considérés comme constituant une catégorie particulière de travailleurs. En effet, ceux-ci ne se distinguent des travailleurs groupés dans une entreprise ou un groupement d’entreprises, dans une branche économique ou un secteur professionnel ou interprofessionnel qu’en raison des caractéristiques propres qui régissent leur relation d’emploi avec l’État, avec d’autres collectivités ou employeurs publics (arrêts précités Griesmar, point 31, et Niemi, point 48). | 0 |
11,872 | 42
It should be noted first of all that, under Article 6(3) of Directive 92/43, an appropriate assessment of the implications of a plan or project for the site concerned implies that, prior to its approval, all aspects of that plan or project which can, by themselves or in conjunction with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such an effect (see to that effect, in particular, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraphs 49 and 50). | 23. It follows from the case-law of the Court that, in the absence of provisions of Community law, disputes concerning the recovery of amounts wrongly paid under Community law must be decided by national courts in application of their own domestic law, subject to the limits imposed by Community law, on the basis that the rules and procedures laid down by domestic law must not have the effect of making it practically impossible or excessively difficult to recover the aid not due and that the national legislation must be applied in a manner which is not discriminatory as compared to procedures for deciding similar national disputes (Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 19, Case C‑366/95 Steff-Houlberg Export and Others [1998] ECR I‑2661, paragraph 15, and Case C‑336/00 Huber [2002] ECR I‑7699, paragraph 55). | 0 |
11,873 | 17. Accordingly, where the anti-competitive object of the agreement is established it is not necessary to examine its effects on competition. Where, however, an analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent (judgment in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 34; see, to that effect, judgments in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 52, and Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraph 116). | 33. Moreover, it is clear from recitals 5, 6 and 24 to Directive 2004/83 that the minimum requirements for granting subsidiary protection must help to complement and add to the protection of refugees enshrined in the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, through the identification of persons genuinely in need of international protection and through such persons being offered an appropriate status. | 0 |
11,874 | 58
While Article 22(8) of the Sixth Directive, in the version resulting from Article 28h thereof, allows Member States to adopt measures to ensure the correct collection of VAT and the prevention of evasion, such a refusal to allow an exemption would go further than is necessary to attain those objectives, since such an infringement of national law can be penalised by a fine proportionate to the seriousness of the infringement (see, by analogy, judgments of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraphs 62 and 63, and of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos, C‑516/14, EU:C:2016:690, paragraphs 47 and 48). | 39 It also follows that, where the signs or indications concerned have become customary in the current language or in the bona fide and established practices of the trade to designate the goods or services covered by the mark, it is of little consequence that they are used as advertising slogans, indications of quality or incitements to purchase those goods or services. | 0 |
11,875 | 93. Lastly, as regards the justification based on Article 86(2) EC, it must be stated that that provision, in conjunction with Article 86(1) EC, may be relied on to justify the grant by a Member State to an undertaking entrusted with the operation of services of general economic interest of special or exclusive rights which are contrary to the provisions of the Treaty, to the extent that performance of the particular task assigned to that undertaking can be assured only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the European Union (Case C‑340/99 TNT Traco [2001] ECR I‑4109, paragraph 52; Case C‑220/06 Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia [2007] ECR I‑12175, paragraph 78; and Case C‑567/07 Woningstichting Sint Servatius [2009] ECR I‑9021, paragraph 44). | 31. It is, therefore, for national rules to determine the date by which or the period within which the persons concerned must have made the payments corresponding to their obligations or, as regards the other situations contemplated by the national court which are dealt with in paragraphs 34 to 39 of this judgment, must have proved that the conditions for subsequent regularisation have been fulfilled. That period may be, inter alia, the final date for lodging the request to participate in the contract, the date on which the invitation to tender was sent, the final date on which the candidates’ tenders are to be lodged, the date on which tenders are considered by the contracting authority or even immediately prior to the award of the contract. | 0 |
11,876 | 47 It follows from that function that the purpose of the letter of formal notice is, first, to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence and, second, to enable the Member State to comply with its obligations before proceedings are brought before the Court (judgment in Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 54). | 65. According to those decisions, the restrictions must be justified by imperative requirements in the general interest, be suitable for achieving the objective which they pursue and not go beyond what is necessary in order to attain it. They must in any event be applied without discrimination. | 0 |
11,877 | 18. It should be noted at the outset that freedom of establishment entails 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 other Member States through a subsidiary, branch or agency (see Case C-307/97 Saint‑Gobain ZN [1999] ECR I-6161, paragraph 35; Case C-141/99 AMID [2000] ECR I-11619, paragraph 20; and Case C-471/04 Keller Holding [2006] ECR I-2107, paragraph 29). | 27. À cet égard, il découle de la jurisprudence constante de la Cour que, aux fins de l’application des dispositions du droit de l’Union en matière de concurrence, est une entreprise toute entité exerçant une activité économique, indépendamment du statut juridique de cette entité et de son mode de financement (voir arrêt du 23 avril 1991, Höfner et Elser, C‑41/90, Rec. p. I‑1979, point 21). Constitue une activité économique toute activité consistant à offrir des biens ou des services sur un marché donné (voir arrêt du 25 octobre 2001, Ambulanz Glöckner, C‑475/99, Rec. p. I‑8089, point 19). En revanche, ne présentent pas de caractère économique, justifiant l’application des règles de concurrence prévues par le traité, les activités qui se rattachent à l’exercice de prérogatives de puissance publique (voir arrêt du 12 juillet 2012, Compass-Datenbank, C‑138/11, point 36). | 0 |
11,878 | 55. The Court has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40). | 21. That interpretation is also borne out by the fact that the Commission ' s initial proposal and amended proposal for the Sixth Directive embodied a common definition of building land. The Council, however, did not accept either of those proposals and finally deferred to the Member States ' definitions. | 0 |
11,879 | 23. It must be borne in mind at the outset that while it is true that the Court has held that the Guidelines do not constitute the legal basis of fining decisions adopted by the Commission (see 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 209, and Case C‑167/04 P JCB Service v Commission [2006] ECR I‑0000, paragraph 207), the Court has also held that the Guidelines ensure legal certainty on the part of the undertakings since they determine the method which the Commission has bound itself to use for the purposes of setting fines (see Dansk Rørindustri and Others v Commission , paragraph 213, and JCB Service v Commission , paragraph 209). | 209. The Court has already held, in a judgment concerning internal measures adopted by the administration, that although those measures may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. Such measures therefore constitute a general act and the officials and other staff concerned may invoke their illegality in support of an action against the individual measures taken on the basis of the measures (see Case C-171/00 P Libéros v Commission [2002] ECR I-451, paragraph 35). | 1 |
11,880 | 33. In this respect, the localisation of an act of ‘re-utilisation’ within the meaning of Article 7 of Directive 96/9 must, like the definition of that concept, correspond to independent criteria of European Union law (see, by analogy, Case C-5/11 Donner [2012] ECR, paragraph 25). | 13 SINCE IT HAS TO RECONCILE THE REQUIREMENT AS TO THE QUALIFICATIONS NECESSARY IN ORDER TO PURSUE A PARTICULAR OCCUPATION WITH THE REQUIREMENTS OF THE FREE MOVEMENT OF WORKERS, THE PROCEDURE FOR THE RECOGNITION OF EQUIVALENCE MUST ENABLE THE NATIONAL AUTHORITIES TO ASSURE THEMSELVES, ON AN OBJECTIVE BASIS, THAT THE FOREIGN DIPLOMA CERTIFIES THAT ITS HOLDER HAS KNOWLEDGE AND QUALIFICATIONS WHICH ARE, IF NOT IDENTICAL, AT LEAST EQUIVALENT TO THOSE CERTIFIED BY THE NATIONAL DIPLOMA . THAT ASSESSMENT OF THE EQUIVALENCE OF THE FOREIGN DIPLOMA MUST BE EFFECTED EXCLUSIVELY IN THE LIGHT OF THE LEVEL OF KNOWLEDGE AND QUALIFICATIONS WHICH ITS HOLDER CAN BE ASSUMED TO POSSESS IN THE LIGHT OF THAT DIPLOMA, HAVING REGARD TO THE NATURE AND DURATION OF THE STUDIES AND PRACTICAL TRAINING WHICH THE DIPLOMA CERTIFIES THAT HE HAS CARRIED OUT . | 0 |
11,881 | 43. Concerning the expression ‘in the course of trade’, it is settled case-law that the use of a sign identical to a trade mark constitutes use in the course of trade where it occurs in the context of commercial activity with a view to economic advantage and not as a private matter (judgments in Arsenal Football Club , C‑206/01, EU:C:2002:651, paragraph 40; Céline , C‑17/06, EU:C:2007:497, paragraph 17; and Google France and Google , C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 50). | 81. In effect, the immediate destruction and slaughter of all the fish enable owners to restock the affected farms as soon as possible. | 0 |
11,882 | 49
As regards that requirement, the Court has repeatedly held that it implies that the purpose of granting a delegated power is to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act (judgments of 18 March 2014, Commission v Parliament and Council, C‑427/12, EU:C:2014:170, paragraph 38; of 16 July 2015, Commission v Parliament and Council, C‑88/14, EU:C:2015:499, paragraph 29; and of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 30). The Court’s case-law requires in particular that the definition of the power conferred is sufficiently precise, in that it must indicate clearly the limits of the power and must enable the Commission’s use of the power to be reviewed by reference to objective criteria fixed by the EU legislature (see, to that effect, judgments of 5 July 1988, Central-Import Münster, 291/86, EU:C:1988:361, paragraph 13, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 90). | 30 Therefore, if workers are entitled, under Law No 230, to reinstatement from the point of view of increases in salary, seniority and the payment by the employer of social security contributions, from the date of their original recruitment, former foreign-language assistants who have become linguistic associates must also be entitled to similar reinstatement with effect from the date of their original recruitment. | 0 |
11,883 | 39 It is settled case-law that the statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the institution which enacted the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It is not necessary, however, for details of all relevant factual and legal aspects to be given, in so far as the question whether the statement of the grounds for a decision 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 Case C-478/93 Netherlands v Commission [1995] ECR I-3081, paragraphs 48 and 49). | 29. Ainsi, selon la jurisprudence constante de la Cour, s’agissant plus particulièrement des taxes administratives imposées par les États membres aux opérateurs titulaires de l’autorisation générale au titre de l’article 12 de la directive «autorisation», elles ne peuvent avoir pour objet que de couvrir les frais administratifs afférents à quatre activités administratives, à savoir la délivrance, la gestion, le contrôle et la mise en œuvre du régime d’autorisation générale applicable (voir, par analogie, arrêt Telefónica de España, précité, point 22). | 0 |
11,884 | 292. Moreover, the Court has held that the powers of the Community provided for by Articles 177 EC to 181 EC in the sphere of cooperation and development must be exercised in observance of the undertakings given in the context of the United Nations and other international organisations (Case C‑91/05 Commission v Council [2008] ECR I‑0000, paragraph 65 and case-law cited). | 27 Consequently, it must be held - and the German Government has not disputed this point - that the German legislation is applicable in the plaintiff's situation. | 0 |
11,885 | 52. In particular, the provisions of national law adopted in that connection must not constitute an unjustified obstacle to the effective exercise of the fundamental freedoms guaranteed by Article 45 TFEU (see judgments in Kraus , C‑19/92, EU:C:1993:125, paragraph 28, and Peśla , C‑345/08, EU:C:2009:771, paragraph 35). | 86. Next, as regards, the criterion of ‘a fairly large number of people’, this is intended to indicate that the concept of public encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant. | 0 |
11,886 | 16. According to settled case-law of the Court, partial annulment of an EU act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see, inter alia, Commission v Council , C‑29/99, EU:C:2002:734, paragraph 45, and Germany v Council , C‑239/01, EU:C:2003:514, paragraph 33). The Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance ( Commission v Poland , C‑504/09 P, EU:C:2012:178, paragraph 98 and the case-law cited). | 45. It follows from the Court's case-law that partial annulment of a decision is possible if the elements whose annulment is sought may be severed from the remainder of the decision (see, to that effect, Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph 21, and Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 256). That is the situation in the present case. | 1 |
11,887 | 83. First, there is no such direct link when it is a question, in particular, of different taxes or the tax treatment of different taxpayers (see, to that effect, judgments in DI. VI. Finanziaria di Diego della Valle & C. , C‑380/11, EU:C:2012:552, paragraph 47, and Grünewald , C‑559/13, EU:C:2015:109, paragraph 49). That is the case here since the deduction of the amount corresponding to the gifts made by the private foundation subject to the interim tax and the taxation of the beneficiaries for those gifts necessarily concern different taxpayers. | 6 IN THE ABSENCE OF A COMMUNITY SYSTEM GUARANTEEING FOR CONSUMERS THE AUTHENTICITY OF A PRODUCT'S DESIGNATION OF ORIGIN, IF A MEMBER STATE TAKES MEASURES TO PREVENT UNFAIR PRACTICES IN THIS CONNEXION, IT IS HOWEVER SUBJECT TO THE CONDITION THAT THESE MEASURES SHOULD BE REASONABLE AND THAT THE MEANS OF PROOF REQUIRED SHOULD NOT ACT AS A HINDRANCE TO TRADE BETWEEN MEMBER STATES AND SHOULD, IN CONSEQUENCE, BE ACCESSIBLE TO ALL COMMUNITY NATIONALS . | 0 |
11,888 | 32. First of all, it should be borne in mind that it is not for the Court to assign a legal classification to the actions brought by the plaintiffs before the national court claiming reimbursement of a duty unduly paid or claiming compensation for damage suffered (see Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727, paragraph 81, and Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraph 201), and that an action for damages may coexist with an action for the recovery of sums unduly paid (see, to that effect, Comateb and Others , paragraph 34). | 17. In that regard, it must be pointed out that, in so far as the concession in question may also be of interest to an undertaking located in a Member State other than the Member State of the Comune di Cingia de’ Botti, the award, in the absence of any transparency, of that concession to an undertaking located in the latter Member State amounts to a difference in treatment to the detriment of the undertaking located in the other Member State (see, to that effect, Telaustria and Telefonadress , paragraph 61). | 0 |
11,889 | 48. As regards Article 5(1)(b) of the directive, the Court has already held that that provision is designed to apply only if, because of the identity or similarity between the signs and marks and between the goods or services which they designate, there exists a likelihood of confusion on the part of the public (see, to that effect, Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 34). | 43. It must be added that the Court of Justice, in paragraphs 274 to 276 of the judgment in Limburgse Vinyl Maatschappij and Others v Commission , observed that since the judgment in Orkem v Commission there have been further developments in the case‑law of the European Court of Human Rights which the Community judicature must take into account when interpreting the fundamental rights. The Court of Justice stated however in that regard that those developments were not such as to put in question the statements of principle in Orkem v Commission . | 0 |
11,890 | 54. It has consistently been held that the gravity of infringements of Community competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, in particular, Limburgse Vinyl Maatschappij and Others v Commission , paragraph 465; 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 241; and Case C‑407/04 P Dalmine v Commission [2007] ECR I-829, paragraph 129). | 61 Application of a national system of prior control to check the exact nature of the activity envisaged by the applicant has a legitimate aim in so far as it makes it possible to restrict the exercise of rights of entry and stay by Bulgarian nationals invoking Article 45(1) of the Association Agreement to persons to whom that provision applies. | 0 |
11,891 | 101. The claimants in the main proceedings maintain that the legislative procedures which the Community must follow in adopting legislation under Articles 95 EC and 133 EC respectively are different from and inconsistent with one another, so that recourse to such a dual legal basis is not permissible (see, in particular, Case C-300/89 Commission v Council ( "Titanium dioxide " ) [1991] ECR I-2867, paragraphs 17 to 21). Article 95 EC requires the Council to act jointly with the Parliament in accordance with the co-decision procedure laid down in Article 251 EC, whereas Article 133 EC lays down a procedure in which the Parliament does not participate and the Council acts by a qualified majority. Application of the co-decision procedure to the adoption of a measure relating to the common commercial policy, when Article 133 EC does not even provide for the Parliament to be consulted, would run counter to the separation of powers between institutions intended by the Treaty. | 56
As regards the determination of the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’, it is apparent from points 22 and 25 of the 2006 Guidelines that account must be taken of a number of factors, in particular those set out in point 22 of the guidelines. Although, in order to assess the gravity of an infringement and subsequently set the fine to be imposed, account may be taken, inter alia, of the geographic extent of an infringement, the fact that the geographic scope of one infringement is more extensive than that of another does not, on its own, necessarily mean that the first infringement, considered as a whole, and in particular in the light of its nature, must be classified as more serious than the second and as therefore justifying the setting of higher multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ than those used in the calculation of the fine for the second infringement (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 178). | 0 |
11,892 | 37. The second to the fifth recitals in the preamble to Directive 89/592 state that it is intended to ensure the proper functioning of the secondary market in transferable securities and to protect investors’ confidence, which depends, in particular, on their being placed on an equal footing and protected against the improper use of inside information ( Grøngaard and Bang , paragraph 33). | 60. It follows that the Court cannot confine itself to finding that the unity or consistency of EU law is affected without stating the implications of that finding as regards the dispute in question (judgment in Review of Commission v Strack , C‑579/12 RX-II, EU:C:2013:570, paragraph 62 and the case-law cited). | 0 |
11,893 | 169 Furthermore, as is apparent from the case-law of the Court, a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application must be considered admissible (Case 306/81 Verros v Parliament [1983] ECR 1755, paragraphs 9 and 10). | 57 It should be observed that, unlike the situation in Genius Holding, in the cases in the main proceedings the risk of any loss in tax revenues has been completely eliminated in sufficient time either because the issuer of the invoice has retrieved and destroyed the invoice before its recipient used it or because, although the invoice has been used, the issuer of the invoice has settled the amount shown separately on the invoice. | 0 |
11,894 | 65. As regards the applicability to the disputed tax legislation of the Treaty provisions relating to freedom to provide services, it should first be noted that, whilst the third paragraph of Article 50 EC refers only to the active freedom to provide services, where the provider goes to the recipient, it is clear from well-established case-law that the freedom to provide services includes the freedom for the recipients of services to go to another Member State in order to receive those services there (Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraphs 10 and 16). In this case, application of the national legislation at issue leads the Member State in question to refuse tax relief because the school attended is a private school situated in another Member State. What is concerned therefore, by the principle of the freedom to provide services, is the possibility of having recourse to offers of education emanating from a private school established in another Member State. | 13 SINCE THE MATTER DEALS WITH A LEGISLATIVE ACT INVOLVING CHOICES OF ECONOMIC POLICY , THERE IS NO LIABILITY ON THE PART OF THE COMMUNITY FOR DAMAGE WHICH INDIVIDUALS MAY HAVE SUFFERED BY REASON OF THIS ACT , BEARING IN MIND THE PROVISIONS OF ARTICLE 215 , SECOND PARAGRAPH , OF THE TREATY , UNLESS THERE IS A SUFFICIENTLY FLAGRANT INFRINGEMENT OF A SUPERIOR RULE OF LAW PROTECTING THE INDIVIDUAL .
IN CREATING A SYSTEM OF AIDS INTENDED TO FAVOUR THE PRODUCTION OF DURUM WHEAT IN THE COMMUNITY THE INSTITUTIONS SOUGHT TO ATTAIN SEVERAL OF THE OBJECTIVES IN ARTICLE 39 , IN PARTICULAR ENSURING THE AVAILABILITY OF SUPPLIES IN THE COMMON MARKET AND THE STABILITY OF THE MARKET BY ENCOURAGING THE CULTIVATION OF DURUM WHEAT WHICH IS SHOWING AN UNFAVOURABLE BALANCE AS COMPARED WITH THAT OF COMMON WHEAT .
THE CONCEPT OF STABILIZATION OF THE MARKETS CANNOT COVER THE MAINTENANCE AT ALL COSTS OF POSITIONS ALREADY ESTABLISHED UNDER PREVIOUS MARKET CONDITIONS . BY TEMPORARILY GIVING PRIORITY TO SOME OF THE OBJECTIVES OF ARTICLE 39 , AS COMPARED WITH THE MAINTENANCE OF ESTABLISHED POSITIONS , THE INSTITUTIONS DID NOT INFRINGE THE PROVISIONS OF THE TREATY CITED BUT HAVE EXERCISED THEIR POWERS IN THE CONTEXT OF A COMMON AGRICULTURAL POLICY IN A SUCCESSFUL WAY FOR THE POLICY HAS CONTRIBUTED TO A CONSIDERABLE LOCAL INCREASE IN THE PRODUCTION OF DURUM WHEAT .
| 0 |
11,895 | 33. Where the Commission has adduced sufficient evidence to prove the relevant facts which occurred in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see, to that effect, Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 21, and Case C-365/97 Commission v Italy , paragraphs 84 and 86). | 71 As a preliminary point, it must be stated that, had there been a change in the method used to assess future production and consumption, Regulations Nos 1360/98 and 1361/98 would not have contained an adequate statement of reasons clearly and unequivocally informing the Italian authorities and economic operators of the justification for classifying Italy as a non-deficit Member State and enabling the Community judicature to exercise its powers of review. | 0 |
11,896 | 53. Secondly, the actual beneficiaries of individual aids granted under a system of aids of which the Commission has ordered recovery are, by that fact, individually concerned within the meaning of the fourth paragraph of Article 230 EC (see, to that effect, Joined Cases C‑15/98 and C‑105/99 Italy and Sardegna Lines v Commission [2000] ECR I‑8855, paragraph 34, and Italy v Commission , paragraphs 38 and 39). | 54 However, if the obligation to pay the customs debt rests on the importer, a third party cannot be enriched solely because the importer has paid that debt. Nevertheless, that payment may give rise to an obligation on the part of the exporter or another person towards the importer, legally distinct from the importer's customs obligation, under which the latter may recover the amount which he has paid to the customs authorities. | 0 |
11,897 | 78 The analysis of the compatibility with the Association Agreement of a national system for monitoring immigration that is based on the obligation to apply for prior leave to enter cannot be affected by the fact that, while awaiting the outcome of an appeal against a previous decision which, on a separate basis, refused a Czech national entry to the Member State concerned, that person was admitted on a temporary basis to that State, prior to submission of an application to become established, and authorised to work or receive public funds, with a view to respecting human dignity and demonstrating solidarity (see, along these lines, Case C-192/89 Sevince [1990] ECR I-3461, paragraph 31, and Case C-237/91 Kus [1992] ECR I-6781, paragraphs 12 to 17). | 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 |
11,898 | 31 Nor does the fact, relied on in their observations by the defendants in the main action, that the application of Article 47(5) of the 1990 Law is conditional on the employees' representatives agreeing to the preservation, even in part, of jobs cause the transfer of the undertaking to fall outside the rules laid down by the directive. | 71. Since it thus puts in issue the legal conclusions which the Court of First Instance drew from that finding of fact, that ground of appeal must be declared admissible. | 0 |
11,899 | 41. That interpretation of Article 54 of the CISA is compatible with the objective of the article, which is to ensure that a person whose trial has been finally disposed of is not prosecuted for the same acts in the territory of several Contracting States on account of his having exercised his right to freedom of movement (see, to that effect, Gözütok and Brügge , paragraph 38). | 57. None the less and unlike national legislation which in regard to labelling runs counter to Directive 2000/13 and cannot apply either to imported foodstuffs or to domestic foodstuffs, where national legislation on advertising is contrary to Articles 28 EC and 30 EC, application of that legislation is precluded only in regard to imported products and not domestic products ( SARPP , paragraph 16). | 0 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.